diff --git "a/state-supreme/prediction/eval.csv" "b/state-supreme/prediction/eval.csv"
new file mode 100644--- /dev/null
+++ "b/state-supreme/prediction/eval.csv"
@@ -0,0 +1,1018 @@
+,opinion_id,depth,rank,text,label
+0,6337986,2,1,"Smith first argues that the circuit court erred in denying his motion for directed verdict on the capital-murder, kidnapping, and aggravated-robbery charges.1 Although Smith admits that he 1 Although Smith asserts that none of his convictions are supported by substantial evidence, he fails to develop any argument challenging his theft conviction. We do not address arguments that are not supported by authority or convincing argument. See Sweet v. State, 2011 Ark. 20, at 18, 370 6 drove to and from the crime scene with Mackrell, he contends that there was no evidence he “did anything with the purpose of promoting or facilitating the crimes.” We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. McClendon v. State, 2019 Ark. 88, at 3, 570 S.W.3d 450, 452. In reviewing this challenge, we view the evidence in a light most favorable to the State, considering only the evidence that supports the verdict. Id., 570 S.W.3d at 452. We will affirm the verdict if substantial evidence supports it. Id., 570 S.W.3d at 452. Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id., 570 S.W.3d at 452. Circumstantial evidence may constitute substantial evidence to support a conviction. Finley v. State, 2019 Ark. 336, at 2, 587 S.W.3d 223, 226. For circumstantial evidence to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. at 3, 587 S.W.3d at 226. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id., 587 S.W.3d at 226. Smith committed capital-felony murder if, acting alone or with another person, he committed or attempted to commit the offense of robbery or kidnapping, and, in the course of and in furtherance of the felony or in immediate flight therefrom, he or a person acting with him, caused the death of a person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-101(a)(1)(A)(iii), (v) & (B) (Supp. 2017 reprint). Smith committed aggravated robbery if, with the purpose of committing a felony or misdemeanor theft, he employed or threatened to employ physical force upon another person and was “armed with a deadly weapon” S.W.3d 510, 523. 7 or inflicted death upon another person. Ark. Code Ann. § 5-12-103 (Repl. 2013). Finally, Smith committed kidnapping if, without consent, he restrained another person so as to interfere substantially with the other person’s liberty with the purpose of facilitating the commission of any felony or flight after the felony, inflicting physical injury upon the other person, or terrorizing the other person. Ark. Code Ann. § 5-11-102(a)(3), (4) & (6) (Repl. 2013). In cases implicating a theory of accomplice liability, we will affirm if substantial evidence exists that the defendant acted as an accomplice in the commission of the alleged offense. Finley, 2019 Ark. 336, at 2, 587 S.W.3d at 226. A person acts as an accomplice of another person if, with the purpose of promoting or facilitating the commission of the offense, the person aids, agrees to aid, or attempts to aid in planning or committing the offense. See Ark. Code Ann. § 5-2-403(a)(2) (Repl. 2013). When causing a particular result is an element of an offense, a person is an accomplice of another in the commission of an offense if “acting with respect to that particular result with the kind of culpable mental state sufficient for the commission of the offense, the person . . . [a]ids, agrees to aid, or attempts to aid the other person in committing it.” Ark. Code Ann. § 5-2-403(b)(2) (Repl. 2013). Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity to a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Gilcrease v. State, 2009 Ark. 298, at 12, 318 S.W.3d 70, 79. A defendant is an accomplice if he or she renders the requisite aid or encouragement to the principal with regard to the offense at issue, irrespective of the fact that the defendant was not present at the murder scene and did not directly commit the murder. Id., 318 S.W.3d at 79. 8 Here, with regard to his aggravated-robbery conviction, Smith contends that the State failed to present substantial evidence that he had the purpose to commit a theft or that he employed physical force against Fragstein. On his kidnapping conviction, Smith contends that Fragstein was already dead while he got into her CR-V, so the State failed to prove that he restrained her at any point when she was alive. Finally, on the capital-felony-murder conviction, Smith again argues that Fragstein was already dead when he got into her vehicle and that the State presented insufficient evidence of the underlying felonies of either kidnapping or robbery. The State presented evidence that Smith participated in the kidnapping and aggravated robbery. On July 7, Smith and Mackrell walked the same direction as Fragstein about a minute before she exited TJ Maxx, and just before her Honda CR-V was seen being driven erratically at a high rate of speed. Mackrell sent his girlfriend a text message telling her that Smith “snatched the purse,” after which he and Mackrell divided up the $60 that was in the purse. Smith drove Fragstein’s stolen CR-V from Conway to Pine Bluff with Fragstein inside. She was found murdered four days later. Smith also went with Mackrell to the Bullards’ house to move Fragstein’s stolen CR-V after someone requested that Mackrell move it. The State also presented evidence that Smith participated in the capital-felony murder. Dr. Erickson testified that Fragstein suffered a “severe, prolonged and multi-factorial” assault and that her injuries were consistent with someone “stomping” on her. Smith admitted that he is in a music group that has songs about killing people and stomping someone to death. And Fragstein’s blood was found at multiple locations on Smith’s shoes. Although Smith testified that he did not injure Fragstein and that she appeared to be dead when he got into her CR-V, the jury was not required to believe Smith’s testimony. See Price v. State, 2019 Ark. 323, at 6, 588 S.W.3d 1, 5. Finally, he lied to 9 police multiple times about his involvement in the crimes, which could be considered by the jury as circumstances tending to establish guilt. See Hyatt v. State, 2018 Ark. 85, at 12–13, 540 S.W.3d 673, 680. We hold that the evidence above, viewed in the light most favorable to the State, constitutes substantial evidence of Smith’s participation as an accomplice in the capital-felony murder, kidnapping, and aggravated robbery of Fragstein. See Ark. Code Ann. § 5-10-101(a)(1)(A)(iii), (v) & (B) (capital-felony murder); Ark. Code Ann. § 5-11-102(a)(3), (4), and (6) (kidnapping); Ark. Code Ann. § 5-12-103 (aggravated robbery). Thus, we affirm on this point.",sufficiency of the evidence
+1,1924977,1,3,"While both Meyer and Hattier were public defenders, the trial court constructively denied counsel by appointing Hattier at the time of trial and proceeding to trial in Meyer's absence. Fulminante said complete absence of counsel is a structural trial defect, not subject to harmless error analysis. There is no significant difference between what happened here and complete absence of counsel. The trial judge's discretion extends to continuances, but not to an unconstitutional denial of counsel. For the foregoing reasons, Knight's conviction and sentence are vacated and the matter is remanded to the trial court for further proceedings. REVERSED AND REMANDED. LEMMON, J., concurs and assigns reasons.",conclusion
+2,4509371,1,3,"Tara argues that the county court did not comply with ICWA and NICWA when it appointed Susan as guardian for Eliza. The parties dispute, however, whether ICWA and NICWA apply in these circumstances. We therefore begin our analysis with that question. Do ICWA and NICWA Apply? We have previously described ICWA and NICWA as generally providing “heightened protection to the rights of Indian parents, tribes, and children in proceedings involving custody, termination, and adoption.” In re Adoption of Kenten H., 272 Neb. 846, 853, 725 N.W.2d 548, 554 (2007). Tara argues, as she argued in the county court, that the protections of ICWA and NICWA apply to a “foster care placement” and that the guardianship proceeding at issue here meets the definition of “foster care placement” under 25 U.S.C. § 1903(1)(i) (2012) and Neb. Rev. Stat. § 43-1503(3)(a) (Reissue 2016). Susan disagrees that the guardianship proceeding qualifies as a “foster care placement.” [4,5] To decide the parties’ dispute, we must turn to the language of ICWA and NICWA, particularly those statutes’ definitions of “foster care placement.” As we often say, the starting point and focus of the inquiry when interpreting a statute is the meaning of the statutory language, understood in context. See State v. Garcia, 301 Neb. 912, 920 N.W.2d 708 (2018). Our analysis must begin with the text, because statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation - 1002 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 to ascertain the meaning of statutory words which are plain, direct, and unambiguous. State v. Wal, 302 Neb. 308, 923 N.W.2d 367 (2019). ICWA and NICWA’s definitions of “foster care placement” are substantially the same. NICWA defines “foster care placement” as follows: [A]ny action removing an Indian child from his or her parent or Indian custodian for temporary or emergency placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated. § 43-1503(3)(a). ICWA’s definition is nearly the same, except that it contains no reference to emergency placement. 25 U.S.C. § 1903(1)(i). An application of our familiar principles of statutory interpretation suggests that the guardianship proceeding initiated by Susan falls within the definitions of “foster care placement” in ICWA and NICWA. The definitions include four straightforward elements: (1) an action removing an Indian child from his or her parent or Indian custodian, (2) temporary placement (or emergency placement in NICWA) in a foster home or institution or the home of a guardian or conservator, (3) the parent or Indian custodian cannot have the child returned upon demand, and (4) parental rights are not terminated, each of which appear to be present here. The object of the guardianship proceeding was to remove custody of Eliza from her parent, Tara, and place custody with Susan, who would serve as guardian. In addition, our law recognizes guardianships as temporary custody arrangements, the creation of which does not terminate parental rights, but which cannot be terminated without court approval. See In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004); § 30-2616. Based on similar reasoning, courts from a number of other jurisdictions have interpreted ICWA’s definition of “foster care placement” to include guardianship proceedings. See, e.g., - 1003 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 Matter of Guardianship of Q.G.M., 808 P.2d 684 (Okla. 1991); Empson-Laviolette v. Crago, 280 Mich. App. 620, 760 N.W.2d 793 (2008); In re Custody of A.K.H., 502 N.W.2d 790 (Minn. App. 1993). The only argument Susan makes based on the statutory definition of “foster care placement” goes to the evidence of one element, rather than the definition itself. Susan claims that there was no demonstration that Eliza is an “Indian child” for purposes of ICWA and NICWA. This argument is somewhat puzzling since Susan alleged in her amended petition that Eliza is subject to ICWA, her counsel conceded at trial that Eliza was “an Indian child” under ICWA and NICWA, and Jay testified that Eliza is a member of the Muscogee (Creek) Nation Tribe. Moreover, at trial, Susan offered and the court received into evidence a letter from the Muscogee (Creek) Nation stating that Eliza was a tribal citizen or eligible for enrollment through Tara. This evidence shows that Eliza qualifies as an “Indian child.” Both ICWA and NICWA define the term as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4); § 43-1503(8). Rather than focusing on the statutory definition of “foster care placement,” Susan primarily points to other provisions of ICWA and NICWA and contends that those other provisions should lead us to conclude that a “foster care placement” occurs only when proceedings are initiated by the government. We address these other statutory provisions below, but, as we will explain, we are not persuaded by Susan’s arguments. First, Susan points to broad statements of policy in both ICWA and NICWA. In particular, she refers us to 25 U.S.C. § 1902 (2012), which provides in part: [I]t is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment - 1004 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture. In addition, she directs us to Neb. Rev. Stat. § 43-1502 (Reissue 2016), in which the Nebraska Legislature stated that the purpose of NICWA “is to clarify state policies and procedures regarding the implementation by the State of Nebraska of [ICWA].” Susan contends that these provisions show that in passing ICWA and NICWA, Congress and our Legislature were concerned with situations in which government actors took actions to remove Indian children from their families and placed them in homes lacking an appreciation for Native American culture. Susan contends that this purpose is not served in this case, because the government is not a party to the guardianship proceeding. Although Susan does not cite the case, she is asking us to follow the same approach taken by the Montana Supreme Court in Application of Bertelson, 189 Mont. 524, 617 P.2d 121 (1980). In that case, the court relied on the language in 25 U.S.C. § 1902 and concluded that ICWA should not apply to an intrafamily custody dispute. As we will explain, however, we believe the approach taken by the Application of Bertelson court places too much weight on 25 U.S.C. § 1902. [6] As noted above, 25 U.S.C. § 1902 of ICWA is a policy statement. While this court has previously held that policy statements or statutory preambles may be used, “if needed, for assisting in interpreting the legislative intent for the specific act of which the statement is a part,” State v. Buckman, 267 Neb. 505, 516, 675 N.W.2d 372, 381 (2004), it is generally recognized that such a provision cannot restrict or expand the meaning of the operative portions of a statute if they are unambiguous. See, generally, 2A Norman J. Singer & Shambie Singer, Statutes and Statutory Construction, § 47:4 (7th ed. 2014). No less an authority than the U.S. Supreme Court recently articulated this understanding. The Court rejected an argument - 1005 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 based on statutory statements of purpose, explaining that such provisions, “by their nature ‘cannot override [a statute’s] operative language.’” Sturgeon v. Frost, ___ U.S. ___, 139 S. Ct. 1066, 1086, 203 L. Ed. 2d 453 (2019), quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 220 (2012). [7] We find sound the view that statutory policy statements and preambles cannot be used to arrive at an interpretation that would “give words and phrases of the [operative] text itself a meaning that they cannot bear.” Scalia & Garner, supra at 218. After all, courts are bound to respect not only the purposes a legislative body “has selected, but [also] the means it has deemed appropriate, and prescribed, for the pursuit of those purposes.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 231 n.4, 114 S. Ct. 2223, 129 L. Ed. 2d 182 (1994). It is thus a mistake to assume that anything that furthers a statute’s primary purpose is the law and that anything that does not perfectly do so is not. See, Henson v. Santander Consumer USA Inc., ___ U.S. ___, 137 S. Ct. 1718, 198 L. Ed. 2d 177 (2017); Scalia & Garner, supra at 219. Here, we find that Susan is asking us to use the policy statement in 25 U.S.C. § 1902 to give “foster care placement” a meaning that the text defining the phrase cannot bear. As we have already indicated, Susan can point to nothing in the definition of “foster care placement” suggesting it is limited to proceedings initiated by a state actor. In fact, the language expressly indicates otherwise—the phrase is defined to include “any action” in which the four elements discussed above are present, not just some. See, 25 U.S.C. § 1903(1)(i); § 43-1502(3)(a); In re Interest of Powers, 242 Neb. 19, 23, 493 N.W.2d 166, 169 (1992) (“in popular parlance, the word ‘any’ usually means all or every”). [8] Susan’s preferred interpretation also fails to account for the fact that ICWA and NICWA expressly create a similar, but narrower, exception than the one she asks us to infer. - 1006 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 ICWA and NICWA exclude from their scope, “an award, in a divorce proceeding, of custody to one of the parents.” 25 U.S.C. § 1903(1); § 43-1503(3). In other words, both Congress and the Nebraska Legislature specifically excluded one type of exclusively intrafamily custody dispute from the protections of ICWA and NICWA. One of our rules of statutory interpretation provides that when a statute specifically provides for exceptions, items not excluded are covered by the statute. Castonguay v. Retelsdorf, 291 Neb. 220, 865 N.W.2d 91 (2015). Susan’s preferred interpretation obviously runs counter to this canon, because she asks us to find that all intrafamily custody disputes are not covered by ICWA and NICWA when Congress and our Legislature excluded only some. Moreover, if, as Susan asserts, ICWA and NICWA apply only to actions initiated by the government, the statutory exclusion for awards of custody in divorce proceedings would serve no purpose. This, too, runs counter to our rules of statutory interpretation. We strive, if possible, to give effect to all parts of a statute such that no sentence, clause, or word is rendered meaningless. See State v. Clemens, 300 Neb. 601, 915 N.W.2d 550 (2018). Several courts have pointed to ICWA’s exclusion of custody awards in divorce proceedings as a reason for not following the Montana Supreme Court’s approach in Application of Bertelson, 189 Mont. 524, 617 P.2d 121 (1980). See, e.g., In re Custody of A.K.H., 502 N.W.2d 790 (Minn. App. 1993); Matter of Guardianship of Q.G.M., 808 P.2d 684 (Okla. 1991). See, also, A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982) (rejecting argument based on Application of Bertelson as contrary to the express provisions of ICWA). Neither are we persuaded by Susan’s argument that we should conclude that the protections of ICWA and NICWA do not apply to proceedings initiated by parties other than the government, based on NICWA’s “active efforts” provision. NICWA requires parties seeking to effect a foster care placement of or termination of parental rights to an Indian child to prove that they used “active efforts” to “provide remedial services and - 1007 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 rehabilitative programs designed to prevent the breakup of the Indian family or unite the parent or Indian custodian with the Indian child and that these efforts have proved unsuccessful.” § 43-1505(4). Elsewhere, NICWA provides that “[a]ctive efforts shall mean and include, but not be limited to” several specific measures. § 43-1503(1). Susan describes the “active efforts” measures codified in § 43-1503(1) as a “colossal undertaking and expenditure of resources” and contends it is clear this standard was not intended to apply to private individuals initiating guardianship proceedings. Brief for appellee at 17. Susan’s argument fails to account for our rejection of the notion that the measures listed in § 43-1503(1)(a) to (h) form a “checklist” in which the initiating party is required to show compliance with each item. See In re Adoption of Micah H., 301 Neb. 437, 450, 918 N.W.2d 834, 846 (2018). And, in any event, Susan fails to identify any statutory text that supports her argument regarding legislative intention. For all these reasons, we are not persuaded by Susan’s arguments that the guardianship proceeding she initiated does not qualify as a “foster care placement” under ICWA and NICWA. Did County Court Comply With ICWA and NICWA? Our conclusion that this guardianship proceeding qualified as a “foster care placement” for purposes of ICWA and NICWA does not resolve the parties’ disagreements. Tara asserts that the guardianship proceeding failed to comply with ICWA and NICWA in a number of ways. She contends that she was denied a right to appointed counsel which she possessed under ICWA and NICWA, that Susan failed to comply with notice requirements of ICWA and NICWA, that Susan failed to demonstrate the “active efforts” required by ICWA and NICWA, and that Susan failed to meet the heightened standard of proof required by ICWA and NICWA. To this, Susan offers an alternative - 1008 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 argument: that even if the county court erroneously concluded that the guardianship proceeding was not a “foster care placement,” it nonetheless complied with ICWA and NICWA in all respects. As we will explain, we again disagree. At first glance, it may appear that the county court clearly erred by not granting Tara’s requests for appointed counsel. ICWA and NICWA provide that “[i]n any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding.” 25 U.S.C. § 1912(b) (2012); § 43-1505(2). This language appears to grant Tara a right to court-appointed counsel in the guardianship proceeding if she was indigent. It is not clear, however, whether the county court declined to appoint counsel based on a determination that ICWA and NICWA did not apply or because it found that Tara used an incorrect procedure or failed to adequately demonstrate indigency. In the end, we find it unnecessary to sort out this question and many other ICWA and NICWA compliance arguments raised by Tara, because we find that Susan failed to meet the heightened standard of proof imposed by ICWA and NICWA. NICWA provides that a court may not order foster care placement “in the absence of a determination by the court, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” § 43-1505(5). ICWA contains a provision that is substantially the same. See 25 U.S.C. § 1912(e). ICWA and NICWA thus not only impose a heightened standard of proof for “foster care placements,” they also require that the person seeking the placement meet that standard with expert testimony. Tara focuses her argument on the expert testimony requirement, contending that no qualified expert witness testified at trial. Susan concedes that none of the witnesses she called as part of her case provided the expert testimony required by ICWA - 1009 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 and NICWA. She maintains, however, that the expert witness requirement was met through testimony provided by Tara. We disagree and find that Tara neither qualified as an expert nor provided expert testimony. This court has previously relied on guidelines promulgated by the federal Bureau of Indian Affairs to determine whether a witness qualifies as an expert under ICWA. See In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), overruled on other grounds, In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012). Those guidelines recognized the following categories of individuals as likely to meet the requirements of ICWA: “(i) A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices. “(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards in childrearing practices within the Indian child’s tribe. “(iii) A professional person having substantial educa- tion and experience in the area of his or her specialty.” 239 Neb. at 824, 479 N.W.2d at 111, quoting Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,854, 67,593 (1979) (not codified). NICWA includes a definition of “qualified expert witness” that is similar to these guidelines. See § 43-1503(15). More recently, the Bureau of Indian Affairs issued formal regulations and new guidelines discussing the implementation of ICWA. With respect to the expert witness requirement, the formal regulations provide as follows: A qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be - 1010 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe. 25 C.F.R. § 23.122(a) (2019). The accompanying new guidelines indicate that there may be some cases in which expert testimony from an individual with knowledge of tribal culture is not required. They provide, in part: The rule does not, however, strictly limit who may serve as a qualified expert witness to only those individuals who have particular Tribal social and cultural knowledge. The rule recognizes that there may be certain circumstances where a qualified expert witness need not have specific knowledge of the prevailing social and cultural standards of the Indian child’s Tribe in order to meet the statutory standard. For example, a leading expert on issues regarding sexual abuse of children may not need to know about specific Tribal social and cultural standards in order to testify as a qualified expert witness regarding whether return of a child to a parent who has a history of sexually abusing the child is likely to result in serious emotional or physical damage to the child. Thus, while a qualified expert witness should normally be required to have knowledge of Tribal social and cultural standards, that may not be necessary if such knowledge is plainly irrelevant to the particular circumstances at issue in the proceeding. U.S. Dept. of Interior, Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act G.2 at 54 (Dec. 2016). Susan argues that Tara qualified as an expert witness based on her prior attendance at a Native American college, her ability to speak Cherokee, and the fact that she is pursuing a bachelor’s degree that will include two “subconcentrations,” one of which is in Native American studies. Susan also asserts in her brief that Tara testified to serving as president of the “Native Indian Centered Education” program of Omaha Public - 1011 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 Schools. Brief for appellee at 25. This assertion, however, misstates the record. Tara testified to serving as president of a parental advisory board affiliated with another educational program. There is no indication in the record this educational program was similarly focused on Native American children. We harbor serious doubts that the record shows that Tara was qualified to testify regarding prevailing social and cultural standards of Eliza’s tribe. The record shows only that Tara was a member of the tribe, spoke Cherokee, and had pursued some Native American studies, the scope of which was unclear. There is no indication that she was recognized by a tribal community as knowledgeable of Indian customs and childrearing practices or that she had experience in the delivery of child and family services to Indians. When presented with a similar record, the Nebraska Court of Appeals concluded that a child’s mother was not a qualified expert under NICWA. See In re Interest of Ramon N., 18 Neb. App. 574, 789 N.W.2d 272 (2010). But even if Tara was qualified to testify regarding prevailing social and cultural standards of Eliza’s tribe, there is no indication in the record that she was qualified to provide expert testimony regarding whether her continued custody of Eliza was likely to result in serious emotional or physical damage to Eliza. The recent formal regulations make clear an expert “must be qualified” to present such testimony. 25 C.F.R. § 23.122(a) (emphasis supplied). In addition, even if Tara was qualified to provide such testimony, we do not believe she actually did so. In support of her argument that Tara provided the required expert testimony, Susan directs us to portions of Tara’s testimony and contends they show that Tara does not consider Eliza’s best interests and that it was in Eliza’s best interests to remain in Susan’s care. In that testimony, however, Tara was explaining why she made certain decisions concerning Eliza. Regardless of whether Tara’s explanations were compelling, this factual testimony cannot be fairly construed as an expert opinion as to whether her continued custody of - 1012 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 Eliza would likely result in serious emotional or physical damage to Eliza. From all appearances, both Susan’s trial counsel and the county court assumed that this was not a “foster care placement” and that therefore Susan need only show that Tara was an unfit parent in order to be appointed as guardian. As we have explained, however, that assumption was incorrect. This was a “foster care placement” for purposes of ICWA and NICWA, and Congress and our Legislature have made a policy decision that courts cannot order such a placement based on an ordinary showing of parental unfitness alone. Because there was an absence of the expert testimony required by ICWA and NICWA, the county court erred by appointing Susan as Eliza’s guardian. Disposition. Having determined that Susan did not make the required showing under ICWA and NICWA, all that remains is the disposition of this appeal. Tara suggests that Neb. Rev. Stat. § 43-1512 (Reissue 2016) is determinative. Section 43-1512 states: When any petitioner in an Indian child custody proceeding before a state court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall forthwith return the child to his or her parent or Indian custodian unless returning the child to his or her parent or custodian would subject the child to a substantial and immediate danger or threat of such danger. ICWA contains a nearly identical provision. See 25 U.S.C. § 1920 (2012). Tara contends that the county court improperly removed Eliza from the custody of Tara and that, therefore, § 43-1512 applies and requires us to reverse the order and remand the - 1013 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 cause to the county court for a determination of whether returning Eliza to Tara would subject Eliza to substantial and immediate danger or a threat of such danger. We disagree that this provision applies here. The language in § 43-1512 expressly applies when “any petitioner” improperly removes an Indian child from the custody of his or her parent or improperly retains custody of the child. (Emphasis supplied.) See, also, 25 U.S.C. § 1920 (same). The provision gives no indication that it also applies where a court order brings about the removal of a child and the petitioner merely follows that order. Indeed, it would be more than a stretch to call such a removal “improper.” We are not the only court to have read this language to apply only when parties remove or retain custody of the child extralegally. See, e.g., D.E.D. v. State, 704 P.2d 774, 782 (Alaska 1985) (concluding 25 U.S.C. § 1920 “‘is aimed at those persons who improperly secure or improperly retain custody of the child without the consent of the parent or Indian custodian and without the sanction of law’” (emphasis omitted), quoting Indian Child Welfare Act of 1978, Pub. L. No. 95-608, § 110, 92 Stat. 3069). Here, Susan did not improperly remove or retain custody of Eliza extralegally; rather, a county court order removed Eliza from Tara’s custody. Consequently, we conclude that § 43-1512 does not apply. Because ICWA and NICWA do not set forth specific rules governing our disposition in this case, we believe it appropriate to dispose of the case as we would an ordinary guardianship proceeding in which a petitioner failed to meet his or her burden of proving the right to custody of a child. We thus reverse, and remand with directions to vacate the guardianship, dismiss the petition, and return Eliza to Tara’s custody. See, e.g., In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004) (reversing, and remanding with directions to terminate guardianship and return child to custody of mother where grandparents failed to prove child’s mother forfeited parental rights); In re Interest of Tyler W., No. A-11-1097, 2012 WL - 1014 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 5328645 (Neb. App. Oct. 30, 2012) (selected for posting to court website) (reversing, and remanding with instructions to dismiss guardianship action where petitioner failed to prove mother was unfit or forfeited right to custody of child). See, also, In re Interest of Borius H. et al., 251 Neb. 397, 558 N.W.2d 31 (1997) (explaining that because State did not meet burden to allow for continued detention of juvenile, appellate courts lacked authority to order continued detention).",analysis
+3,2588320,1,4,"We conclude that this court's decision in McConnell set forth a new rule of substantive law that applies retroactively. Applying McConnell to Bejarano's case, two aggravating circumstances are invalid and must be stricken. After reweighing, Bejarano's death sentence remains intact, and the district court's decision to deny him post-conviction relief is affirmed. MAUPIN, GIBBONS, HARDESTY and PARRAGUIRRE, JJ., concur. BECKER, J., with whom DOUGLAS, J., agrees, concurring in part and dissenting in part. Although I agree with the majority's decision to uphold Bejarano's death sentence, I respectfully disagree with the majority's conclusion that McConnell v. State [1] set forth a new substantive rule that requires complete retroactive application. Rather, I conclude that McConnell set forth a new rule of procedure that, except in one limited instance, warrants no application to death row inmates whose convictions and sentences have become final. [2] As the majority explains, the United States Supreme Court recognized in Schriro v. Summerlin that substantive rules include decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. [3] In my view, McConnell neither narrowed the scope of Nevada's statutes criminalizing first-degree murder nor placed any person or type of conduct previously covered by these statutes beyond the State's power to constitutionally punish. I would hold that with one exception, the State may still pursue a death sentence against a first-degree murderer under McConnell as long as the murder is aggravated by at least one statutory circumstance under NRS 200.033. More specifically, I conclude that the only circumstance in which the rule in McConnell must be applied retroactively is when the State asserts criminal liability and obtains a conviction solely upon a theory of first-degree felony murder and the only aggravators alleged and found by the jury are based upon one or more of the felonies that support the jury's finding of guilt. Except in this one limited instance, which as I will explain is best viewed as an exception to the nonretroactivity of new procedural rules, McConnell cannot be fairly viewed as having substantively altered Nevada law or impeded the State's ability to pursue a death sentence against those who commit first-degree murder. McConnell merely dictated a new manner by which the State may achieve this end. I therefore disagree with the majority's holding that McConnell set forth a new substantive rule. Rather, I conclude that McConnell set forth a new rule of procedure. The Supreme Court has stated that a new rule is procedural if it regulates the manner of determining the defendant's culpability. [4] Here, McConnell did just that by prohibiting the State from pursuing an aggravating circumstance in support of a death sentence when that circumstance arises from the same felony used to convict the defendant of first-degree felony murder. [5] By doing so, McConnell altered the manner, i.e., the procedure, by which the State may pursue a death sentence. Pertinent language in McConnell supports this conclusion: We advise the State, therefore, that if it charges alternative theories of first-degree murder intending to seek a death sentence, jurors in the guilt phase should receive a special verdict form that allows them to indicate whether they find first-degree murder based on deliberation and premeditation, felony murder, or both. Without the return of such a form showing that the jury did not rely on felony murder to find first-degree murder, the State cannot use aggravators based on felonies which could support the felony murder. We further prohibit the State from selecting among multiple felonies that occur during an indivisible course of conduct having one principal criminal purpose and using one to establish felony murder and another to support an aggravating circumstance. [6] Evident from the above directives to the State, McConnell was intended to govern the manner by which the State charges a defendant with first-degree capital murder and select[s] the aggravators it alleges in pursuit of a death sentence. Such charging decisions must occur at the inception of capital criminal proceedings, [7] well before a trial commences, [8] and are fundamentally procedural in nature. McConnell was also intended to govern the manner by which the jury indicate[s] its guilt-phase verdict by requiring it to return a special verdict form under certain circumstances. Requiring jurors to use a special form, like regulating the State's charging decisions, concerns a purely procedural aspect of a capital prosecution. For these reasons, I conclude that McConnell squarely displays the characteristics of a new procedural rule and generally warrants no retroactive application. [9] I will briefly address the two instances under Colwell v. State [10] when new procedural rules do retroactively apply. The first instance is when the new rule is not procedural at all—it is substantive. [11] Because, as I explained above, McConnell is procedural, by definition it cannot be substantive. [12] The second instance is when the likelihood of an accurate conviction is seriously diminished absent the new procedural rule. [13] As noted, the McConnell rule satisfies this criterion in only one instance: When the only theory supporting the jury's finding of guilt of first-degree murder is a felony-murder theory and the only aggravators found by the penalty jury are based on the same felony or felonies supporting the finding of guilt. In such a case, the likelihood of accuracy would be seriously diminished because under McConnell the defendant is not death eligible. I would apply McConnell retroactively in this one instance, even when the case is final. Otherwise, I conclude that McConnell warrants prospective application only. For these reasons, I concur in part and dissent in part from the majority opinion. DOUGLAS, J., concur.",conclusion
+4,2625574,1,2,"{6} The State cites State v. Conn, 115 N.M. 99, 100, 847 P.2d 744, 745 (1993) for the proposition that our review on certiorari in this case is inappropriate, and specifically that our jurisdiction in certiorari cases does not encompass weighing or reviewing the resolution of factual issues by the Court of Appeals. In Conn, the State asked us to review a Court of Appeals decision holding that a district court had abused its discretion in admitting evidence of an assault conviction in a criminal sexual contact with a minor case. The defendant had pled guilty to the assault nine years and eight months before the trial. Id. at 101, 847 P.2d 746. There, because we were being asked to examine a question of fact regarding a district court's exercise of discretion on an evidentiary issue, we held that it is not within the purview of our jurisdiction on certiorari to resolve mere factual conflicts between the district court of this State and the Court of Appeals. Id. In this case, however, we are being asked to review a district court's decision to grant a new trial on the basis of newly-discovered evidence. While the facts of the case constituted a part of the district court's consideration in granting a new trial, the district court's decision remained a legal one. State v. Ashley, 1997-NMSC-049, ¶ 9, 124 N.M. 1, 946 P.2d 205. Conn does not preclude our review of whether the Court of Appeals erred in concluding that the district court abused its discretion in evaluating the effect of the newly-discovered evidence.",jurisdiction
+5,6491398,2,1,"Whether the circuit court has jurisdiction to hear the plaintiffs’ complaint presents a question of law, reviewable de novo. A plaintiff without standing is not entitled to invoke a court’s jurisdiction. Thus, the issue of standing is reviewed de novo on appeal. Mottl v. Miyahira, 95 Hawai'i 381, 388, 23 P.3d 716, 723 (2001) (citations omitted).",jurisdiction
+6,1729049,1,2,"Pilley argues that the evidence presented by the State was insufficient to convict him. He insists that the State did not prove that he committed the crimes of which he was accused and convicted. Specifically, Pilley argues that the State's circumstantial evidence was not sufficient to prove that he had the intent to kill and that there was no evidence of his complicity in the robberies and murders. In Ex parte Woodall, 730 So.2d 652 (Ala.1998), this Court addressed the role of appellate courts in reviewing the sufficiency of the evidence in a criminal case: `In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr. App.1984), aff'd, 471 So.2d 493 (Ala. 1985).' Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr. App.1992). Thus, `[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978) (emphasis original). 730 So.2d at 658. The Court of Criminal Appeals addressed the question of the sufficiency of the evidence against Pilley: The evidence before the jury indicated that Pilley had been in the Changing Times Lounge previously, and that he knew the layout of the bar. (R. 364.) There was testimony that the night of the murders he had been overheard discussing obtaining weapons and `easy money.' (R. 379.) Witnesses saw him and Andrew Apicella in the Changing Times Lounge late on the night of the murders. Witnesses described him as acting nervous during the evening. At one time, he asked a bar patron if Edward Dodd owned the bar and whether Dodd was carrying a gun. (R. 441.) Evidence indicated that two weapons were used in the murders; the position of the bodies of the victims when found indicated the five victims had been separated —the Dodds were killed in the pool-table area of the bar, and the three customers were killed on the other side of the establishment. That the victims appeared to have been laid on their faces with their heads in their hands before being shot in the head indicates that they had been deliberately `executed' by their killers. Later that evening, Pilley and Apicella split approximately $300, including five $2 bills, similar to the bills that one of the murder victims had kept in his wallet. (R. 521.) Later, the Apicella family's lawyer turned over to the police jewelry belonging to Pamela Dodd. Accepting as true all the evidence introduced by the State, and according the State all legitimate inferences therefrom, and viewing the evidence in the light most favorable to the prosecution, we conclude there was sufficient evidence from which the jury could have found Pilley either was directly responsible for the murders or was an accomplice, and that he possessed the requisite specific intent to kill. The evidence is sufficient to sustain the jury's finding of guilty as to the capital murder charge. Carden v. State, 621 So.2d 342, 347 (Ala.Cr.App.1992). 789 So.2d 877. After reviewing the record in this case, we agree with the Court of Criminal Appeals that the State presented sufficient evidence from which the jury could have found that Pilley either committed the murders or was an accomplice in those murders, and that he had possessed the requisite intent to kill. We conclude that the evidence was sufficient to sustain Pilley's conviction, and, therefore, that double-jeopardy principles do not bar a retrial.",sufficiency of the evidence
+7,848633,1,2,"This Court reviews de novo decisions on summary disposition motions. Grossman v Brown, 470 Mich 593, 598; 685 NW2d 198 (2004).",standard of review
+8,1522392,1,1,"The threshold question that confronts this court is whether or not the conflict between the decision of the Court of Civil Appeals in this case and the recent decision of the Supreme Court of the United States in the case of Hisquierdo v. Hisquierdo, ___ U.S. ___, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), confers jurisdiction upon this court to correct the error of the Court of Civil Appeals. Article VI, Clause 2, of the Constitution of the United States, known as the Supremacy Clause, provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Article I, Section 1, of the Constitution of Texas, expressly acknowledges that the State of Texas is subject to the Constitution of the United States. This court must recognize and follow the supreme law of the land. Emmons v. Pacific Indemnity Co., 146 Tex. 496, 208 S.W.2d 884 (1948); Gutierrez v. El Paso & N. E. R. Co., 102 Tex. 378, 117 S.W. 426 (1909); McKee v. Brooks, 64 Tex. 255 (1885). In Emmons we said that this court was controlled in the construction of federal laws by the decisions of the Supreme Court of the United States. We hold that under Article V, Sections 1 and 3, of the Constitution of Texas, the Supreme Court of Texas possesses the power, and thus the duty, to correct a decision of a Court of Civil Appeals that conflicts with the supreme law of the land as established by the Congress and Supreme Court of the United States. The Supreme Court of Texas is vested with both original and appellate jurisdiction. Our express grant of appellate jurisdiction is contained in Tex.Const. Article V, Section 3, which provides in part: Sec. 3. The Supreme Court shall have appellate jurisdiction only except as herein specified, which shall be co-extensive with the limits of the State. Its appellate jurisdiction shall extend to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction under such restrictions and regulations as the Legislature may prescribe. Until otherwise provided by law the appellate jurisdiction of the Supreme Court shall extend to questions of law arising in the cases in the Courts of Civil Appeals in which the Judges of any Court of Civil Appeals may disagree, or where the several Courts of Civil Appeals may hold differently on the same question of law or where a statute of the State is held void.... (Emphasis supplied.) Pursuant to this constitutional provision, we have statutory jurisdictional authority in Tex.Rev.Civ.Stat.Ann. Art. 1728 (Vernon 1962). In this case we can only look to sections 1 and 2 since divorce cases are otherwise made final in the Court of Civil Appeals. Tex.Rev.Civ.Stat.Ann. Art. 1821(3) (Vernon 1964). There is no dissent which would give us jurisdiction under section 1. Section 2 states that we have appellate jurisdiction extending to all questions of law arising in the following cases when same have been brought to the Courts of Civil Appeals from appealable judgment of trial courts: ... 2. Those in which one of the Courts of Civil Appeals holds differently from a prior decision of another Court of Civil Appeals, or of the Supreme Court upon a question of law material to a decision of the case. No mention is made of a conflict upon a question of law between a Court of Civil Appeals and the Supreme Court of the United States. Since we are now faced with a case in which no express grant of jurisdiction exists, we must look to the nature of the whole judicial power granted to the courts of this state by Tex.Const. Art. V, Sec. 1, to ascertain jurisdiction. That constitutional provision specifically vests the judicial power of this state in one Supreme Court, in one Court of Criminal Appeals, in Courts of Civil Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law. The judicial power is divided among these various named courts by means of express grants of jurisdiction contained in the constitution and statutes. The jurisdiction of a particular court is that portion of the judicial power which it has been expressly authorized to exercise by the constitution or statutes. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933). In addition to the express grants of judicial power to each court, there are other powers which courts may exercise though not expressly authorized or described by constitution or statute. These powers are woven into the fabric of the constitution by virtue of their origin in the common law and the mandate of Tex.Const. Art. II, Sec. 1, of the separation of powers between three co-equal branches. They are categorized as implied and inherent powers, though some courts have also used the terms incidental, correlative and inferred. Both implied and inherent powers exist in this state, each with separate and independent meaning. The courts of this state have long recognized these powers. Their use has continued unchallenged through constitutional revision, express legislative confirmation, as well as the sometimes overbroad statements of our own courts. These statements have resulted from confusion and overlap, and from a failure or refusal to recognize the distinction between implied and inherent powers. See State v. Pounds, 525 S.W.2d 547 (Tex. Civ. App.— Amarillo 1975, writ ref'd n. r. e.); Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100, 109 (Tex.Civ.App.—Amarillo 1971, writ ref'd n. r. e.); see also State v. Cannon, 206 Wis. 374, 240 N.W. 441 (1932). We believe that the distinction between them is important. The inherent judicial power of a court is not derived from legislative grant or specific constitutional provision, but from the very fact that the court has been created and charged by the constitution with certain duties and responsibilities. The inherent powers of a court are those which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity. [1] Inherent power of the courts has existed since the days of the Inns of Court in common law English jurisprudence. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 1083 (1926); People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487 (1928). It also springs from the doctrine of separation of powers between the three governmental branches. Tex.Const. Art. II, Sec. 1. This power exists to enable our courts to effectively perform their judicial functions and to protect their dignity, independence and integrity. The implied powers of a court do not stand on such an independent basis as those described as inherent. Though not directly or expressly granted by constitutional or legislative enactment, implied powers are those which can and ought to be implied from an express grant of power. These powers were recognized by this court in Ex Parte Hughes, 133 Tex. 505, 129 S.W.2d 270 (1939), where the court reversed a contempt conviction because the district court had no jurisdiction over the case. The defendant Hughes had failed to produce documents under the court's subpoena in a usury suit brought by the State of Texas. We held that the court had no jurisdiction over the case since the usury statute provided a remedy between private individuals only, and such remedy could not be enforced by the state. In so doing, however, we recognized the existence of implied jurisdictional powers by the following language: Under our judicial system our courts have such powers and jurisdiction as are defined by our laws constitutional and statutory. Under our system there is no such thing as the inherent power of a court, `if, by that, be meant a power which a court may exercise without a law authorizing it.' Messner v. Giddings, 65 Tex. 301. Of course jurisdiction is granted by law when it is either directly conferred or ought to be implied from the jurisdiction directly granted. In other words, our courts have such powers and jurisdiction as are directly provided by law, and, in addition thereto, they have such further powers and jurisdiction as are reasonably proper and necessary, — that is, as ought to be inferred, from the powers and jurisdiction directly granted. Id. 129 S.W.2d at 273. (Emphasis supplied.) See Burttschell v. Sheppard, 123 Tex. 113, 69 S.W.2d 402 (1934). The language of Hughes was overbroad when it categorically denied the existence of the inherent power of a court and such language is disapproved. Several other cases decided by this court have similarly stated that inherent powers of the court do not exist; however, closer examination reveals that such statements which have negated the existence of inherent power were made to deny the existence of a court's inherent jurisdictional power. Our holdings have simply been that we have no inherent power to take jurisdiction of a case when that jurisdiction has been expressly or impliedly granted to another court of this state. In so doing, we have recognized a distinction between implied and inherent powers, in regard to jurisdiction. This is illustrated by returning the statement concerning inherent powers found in Ex Parte Hughes, supra , to its original context in Messner v. Giddings, 65 Tex. 301 (1886). There this court held that a district court had no power to exercise original jurisdiction which had been conferred on county courts alone. When the constitution expressly grants jurisdiction over a particular subject matter to a particular court and not upon another, then it is to be presumed that the jurisdiction so conferred is exclusive. Messner v. Giddings, 65 Tex. 301, 310 (1886). Likewise in Pope v. Ferguson, 445 S.W.2d 950 (Tex.1969), we denied having inherent powers in a jurisdictional matter on the basis of Messner v. Giddings, supra , and Ex Parte Hughes, supra . In Ferguson, we declined to use our mandamus powers on the grounds that an adequate remedy existed by appeal and that areas of conflict between our power and the power expressly granted to the Court of Criminal Appeals would exist, should the petition for mandamus be granted. We said that it was our duty to avoid conflicts when we could do so in good conscience. It was only in the context of this duty to avoid intrusion into another court's express jurisdiction, that we denied having inherent power. As we have said, this court does possess inherent powers separate and distinct from our jurisdictional power; however, in the case now before us the exercise of inherent powers as we have defined them here is not appropriate. Rather, we are called upon to exercise a judicial power not within our express grant of jurisdiction. The constitution expressly gives this court jurisdiction to review questions of law arising in cases decided by the Court of Civil Appeals. Tex.Const. Art. V, Sec. 3; Tex.Rev.Civ.Stat.Ann. Art. 1728 (Vernon 1962); Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376 (Tex.1965); Ex Parte Godeke, 163 Tex. 387, 355 S.W.2d 701 (1962). From this express grant we hold our jurisdictional power to decide the case before us is implied. Ex Parte Hughes, supra ; Burttschell v. Sheppard, supra. No other department of the government of Texas has the jurisdiction or the mechanism to correct such decision of a Court of Civil Appeals except the Supreme Court of Texas. A patent anomaly would exist if, within the sovereign State of Texas, no department, branch or official had the power to enforce in this case the mandate of the federal Supremacy Clause and the recognition of that supremacy by Tex.Const. Art. I, Sec. 1. We hold, therefore, that the Supreme Court of Texas has jurisdiction to correct a decision of the Court of Civil Appeals which is contrary to a decision of the United States Supreme Court.",jurisdiction
+9,1795613,1,3,"¶ 28. The record in this case does not reveal anything approaching fraud, mistake, or overreaching, and the chancellor was in the best position to decide that issue. Moreover, fraud is a finding of fact, and this Court will not disturb findings of fact on appeal unless they are against the manifest weight of evidence or clearly erroneous. We affirm the judgment of the chancery court. ¶ 29. AFFIRMED. SMITH, C.J., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION. WALLER, P.J., DIAZ, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.",conclusion
+10,2620490,1,2,"Right to a Speedy Trial Under CrR 3.3 Mr. Ollivier maintains that the time-for-trial rule in CrR 3.3 was violated when the trial court granted 22 continuances without, he asserts, making sufficient inquiry into the reasons for the delays. A trial court's decision to grant or deny a motion for a continuance is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. State v. Kenyon, 167 Wn.2d 130, 135, 216 P.3d 1024 (2009). CrR 3.3 accords with the United States Supreme Court's determination that states can prescribe reasonable periods for commencement of trials consistent with constitutional standards. Barker v. Wingo, 407 U.S. 514, 524, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). While the rule has the purpose of ensuring that a defendant's constitutional right to a speedy trial is effectuated, complying with it does not necessarily mean that no constitutional violation occurs. Kenyon, 167 Wn.2d at 136; see Barker, 407 U.S. at 531 (noting that the balancing test the Court adopted for Sixth Amendment speedy trial purposes requires courts to consider the constitutional right on an ad hoc basis and no set time is constitutionally sufficient for all cases); see State v. Iniguez, 167 Wn.2d 273, 287, 217 P.3d 768 (2009) (CrR 3.3 provides a framework for the disposition of criminal proceedings without establishing any constitutional standards). Under CrR 3.3(b)(l)(i), an individual held in custody pending trial must be tried within 60 days of arraignment. Certain time periods are excluded from the computation 5 No. 86633-3 of time, including continuances granted by the trial court. CrR 3.3(e). CrR 3.3(f)(2) explains: On motion of the court or a party, the court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense. The motion must be made before the time for trial has expired. The court must state on the record or in writing the reasons for the continuance. CrR 3 .3(f)(2) also provides that a motion for continuance by or on behalf of any party waives that party's objection to the requested delay. Here, Ollivier's own counsel sought the continuances about which he complains, and as the rule expressly provides, any objection is therefore waived? Ollivier contends, however, that the trial court did not state on the record as to each continuance that it was required in the administration of justice and that the defendant was not prejudiced. For example, Mr. Ollivier says as to the October 19, 2007 ruling that the court indicated the continuance was granted in the administration of justice but failed to comply with the requirement that the delay not prejudice the defendant. However, the order explains the reason for the continuance was that the time was needed for a defense expert to do work before trial. Implicit is the idea that if the expert lacked sufficient time to complete the work, the defense would suffer or be incompletely prepared. 2 Under case law preceding the 2003 adoption of the last sentence in CrR 3.3(f)(2) that waives objections when defense counsel moves for a continuance, granting continuances over the defendant's objection to ensure that counsel was adequately prepared and provided effective representation was not an abuse of discretion. State v. Campbell, 103 Wn.2d 1, 15, 691 P.2d 929 (1984); see State v. Finch, 137 Wn.2d 792, 806, 975 P.2d 967 (1999). 6 No. 86633-3 Each order continuing the trial provides a reason for the continuance. In his opening brief in the Court of Appeals, Mr. Ollivier concede[ d] that any of the continuances, standing alone, would not be an abuse of discretion. Appellant's Opening Br. at 20 (emphasis omitted). This is a concession that each request for a continuance was a legitimate request for an extension of time to pursue matters in preparation of his defense and that the trial court properly granted the motions for continuances. State v. Saunders, 153 Wn. App. 209, 220 P.3d 1238 (2009) and Kenyon, 167 Wn.2d 130, on which Ollivier heavily relies, do not compel a different conclusion. Neither involved a similar situation. In Saunders, three continuances at issue were granted that the Court of Appeals found to be unsupported by convincing and valid reasons. 3 Indeed, the continuances were granted to permit ongoing plea negotiations over the defendant's objection and contrary to his desire to go to trial. As the State points out in the present case, whether to plead guilty is an objective of representation controlled by the defendant and not a matter of trial strategy to achieve an objective. See Faretta v. California, 422 U.S. 806, 820, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). In contrast, 3 The Court of Appeals summarized them as follows: Here, [the defendant] consistently resisted extending time for trial while he was incarcerated awaiting trial on his failure to register [as a sex offender] charges. The continuances granted on January 8, February 20, and March 18 are without adequate basis or reason articulated by the State or defense counsel. [The] defense counsel and the State either agreed to a continuance for further negotiations, contested by [the defendant], or relied on uninformed standby defense attorneys or assigned prosecutors to present contested orders-these standbys either did not lmow about the continuances or believed they were agreed continuances-and, when the trial court challenged them to state the basis of the requested continuances, they admitted they lmew nothing substantive about the status ofthe case. Saunders, 153 Wn. App at 220-21. 7 No. 86633-3 under CrR 3.3, counsel has authority to make binding decisions to seek continuances. Saunders is unlike Mr. Ollivier's case because here the continuances were sought to enable defense investigation and preparation for trial. In Kenyon, charges were dismissed because the record failed to sufficiently document details showing that no judge was available to try the case, as required by precedent. Kenyon involves continuances for far different reasons than in Ollivier's In light ofCrR 3.3(f)(2) and Mr. Ollivier's concession that individually the continuances were not an abuse of discretion, Mr. Ollivier's rule-based speedy trial right was not violated. We affirm the Court of Appeals on this issue. Because this conclusion does not resolve the constitutional issue, see Iniguez, 167 Wn.2d at 287, we next turn to the issue whether Mr. Ollivier's constitutional rights to a speedy trial were violated. Constitutional Rights Right to a Speedy Trial Ollivier contends that the Court of Appeals erroneously ruled that to show a violation of constitutional speedy trial rights, the defendant must establish actual prejudice to his ability to prepare a defense. He maintains that actual prejudice is not required before a violation of the right to a speedy trial can be found under the Sixth Amendment and article I, section 22 ofthe Washington State Constitution. 4 Moreover, in Kenyon we noted that that several continuances [were necessary] to prepare for trial, many ofthem against [the defendant's] wishes. But the continuances were deemed necessary to adequately prepare for [the defendant's] trial. Kenyon, 167 Wn.2d at 138. We thus acknowledged that time needed to prepare is a legitimate reason for continuances requested by counsel, even over the defendant's objections. 8 No. 86633-3 Mr. Olivier's argument highlights the need for us to clarify our analysis in Iniguez concerning when a showing of actual prejudice is required. As we explain below, and contrary to Mr. Ollivier's contention, the defendant ordinarily must establish actual prejudice to the ability to prepare a defense. The exception is when the delay is so lengthy that prejudice to the ability to defend must be conclusively presumed. Our review is de novo. Iniguez, 167 Wn.2d at 280. In Iniguez, we determined that the analysis for speedy trial rights under article I, section 22 is substantially the same as the Sixth Amendment analysis and that the state provision does not afford greater rights to the defendant. Iniguez, 167 Wn.2d at 289. 5 Like the Sixth Amendment speedy trial right, the state right is 'consistent with delays' and subject to the circumstances. Barker, 407 U.S. at 522 (quoting Beavers v. Haubert, 198 U.S. 77, 87, 25 S. Ct. 573, 49 L. Ed. 950 (1905)). Accordingly, the right is not quantified, does not depend upon whether the defendant makes a specific request, and does not arise pursuant to some inflexible rule. Id. at 522-25. We use the balancing test set out in Barker to determine whether a constitutional violation has occurred. Iniguez, 167 Wn.2d at 292. Because the state right is substantially the same as the federal right and we employ the same balancing test that was adopted by the United States Supreme Court, federal case law concerning the Sixth Amendment right is highly relevant to application of the state constitutional provision in 5 The Sixth Amendment provides in part that [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial. U.S. CoNST. amend. VI. Article I, section 22 of the Washington State Constitution similarly provides that [i]n criminal prosecutions the accused shall have the right ... to have a speedy public trial. 9 No. 86633-3 a given situation. !d. at 282; see also State v. Fortune, 128 Wn.2d 464, 474-75, 909 P.2d 930 (1996) (federal cases can provide guidance in interpreting the state constitution). The analysis is fact-specific and 'necessarily dependent upon the peculiar circumstances of the case.' Iniguez, 167 Wn.2d at 288, 292 (quoting Barker, 407 U.S. at 530-31). [T]he conduct of both the prosecution and the defendant are weighed. Barker, 407 U.S. at 529, 530. Among the nonexclusive factors to be considered are the [l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Id. at 530. None of these factors is sufficient or necessary to a violation. Iniguez, 167 Wn.2d at 283 (citing Barker, 407 U.S. at 533). But they assist in determining whether a particular defendant has been denied the right to a speedy trial. Threshold Showing of Presumptively Prejudicial Delay Analysis of the length of delay entails a double inquiry. Doggett v. United States, 505 U.S. 647,651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). In order to trigger the speedy-trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay because, by definition, the accused cannot complain that the government has denied him a 'speedy' trial if it has, in fact, prosecuted his case with customary promptness. !d. at 651-52 (quoting Barker, 407 U.S. at 530-31). Then, if this showing is made, a court has to consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. !d. at 10 No. 86633-3 652. Thus, the length of the delay is both the trigger for analysis and one of the factors to be considered. United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988). The more than eight-year delay in Doggett was clearly sufficient to trigger the speedy trial inquiry. The Court also noted in Doggett that while dependent upon the nature of the charges, lower courts had in general found presumptively prejudicial delay at least at the point at which it approaches one year. Doggett, 505 U.S. at 652 n.1. In Iniguez, we found presumptive delay triggering the Barker analysis where the more than eight-month delay was substantial and the charges were not complex. In Mr. Ollivier's case, the State concedes, and we agree, that the delay was presumptively prejudicial as a threshold matter. This does not mean that the right to a speedy trial has been violated, but rather that the 23-month delay is sufficient to trigger the Barker analysis. We next consider the Barker factors, noting that Ollivier has limited his arguments to these factors and recognizing that although we generally examine each in order, they are interrelated. Length of Delay The first of the Barker factors is the length of the delay. Ollivier maintains that the length of delay weighs in his favor particularly because, he claims, it was not reasonably necessary. He also points out he spent nearly the full period incarcerated and that his counsel had told the court that she had never had a case with such a long delay. Initially, in numerous cases courts have not regarded delay as exceptionally long where the delay was as long as or longer than here, particularly when the delay was 11 No. 86633-3 attributable to the defense. E.g., United States v. Lane, 561 F.2d 1075 (2d Cir. 1977) (58 months, much attributable to repeated requests by the defense for continuances); Gattis v. Snyder, 278 F.3d 222 (3d Cir. 2002) (28-month delay, all of which was attributable to the defendant); United States v. Hills, 618 F.3d 619,630-31 (7th Cir. 2010) (two-year delay, most of which was attributable to the defense); United States v. Porchay, 651 F.3d 930, 940 (8th Cir. 2011) (assuming 39-month delay was presumptively prejudicial, no Sixth Amendment violation; much of the delay ... was attributable to [defendant's] own actions where [s]he filed well over fifty documents during the nearly three years she was under indictment, including motions which required responses and hearings, notices of interlocutory appeal, and written motions for continuance); United States v. King, 483 F.3d 969 (9th Cir. 2007) (21-month delay did not violate the Sixth Amendment where defense obtained numerous continuances, case was complex, and defendant obtained new counsel halfway through proceedings); United States v. Larson, 627 F.3d 1198, 1209-10 (1Oth Cir. 201 0) (31-month delay did not violate Sixth Amendment in case that was not unduly complicated; second factor weighed heavily against the defendant where every continuance was attributable to the defendant). 6 6 See also United States v. Howard, 443 Fed. App'x 596, 599 (2d Cir. 2011) (unpublished) (43month delay did not violate Sixth Amendment where a significant portion of the delay in [the defendant's trial] was attributable to his own pretrial motions as well as ends-of-justice continuances that [the defendant] did not oppose); United States v. Taylor, 489 Fed. App'x 34 (6th Cir. 2012) (unpublished) (22-month delay did not violate Sixth Amendment where delay was due to case's complexity and defendants' motions and requested continuances); United States v. Flowers, 476 Fed. App'x 55 (6th Cir. 2012) (unpublished) (no Sixth Amendment violation where much of the 904-day delay was attributed to the defendant's actions in changing counsel and seeking 21 continuances); Cejas v. Blanas, 366 Fed. App'x 763 (9th Cir. 2010) (unpublished) (38-month delay did not violate the Sixth Amendment where the majority of the 12 No. 86633-3 Contrary to Ollivier's claim, we do not agree that this was a case where the delay was highly disproportionate to the complexity of the issues and counsel's need for preparation. In fact, contrary to Ollivier's claim, one of the judges who granted continuance requests commented on the complexity of the issues. Counsel had to obtain information in connection with use of the computers in the shared residence and as the State suggests, forensic computer analysis can be complex and tedious. We have previously encountered the complexity associated with experts in relation to computers delay was attributable to defendant, whose counsel requested continuances comprising about half of the delay and also consented to the prosecution's requests for continuances); Locke v. Dillman, 915 F. Supp. 2d 670 (E.D. Pa. 2013) (832-day delay did not violate the Sixth Amendment speedy trial right; 503 days of the delay were due to defense counsel's requests and another 329 days were due to congested court dockets and judicial delay); United States v. Goss, 646 F. Supp. 2d 137 (D.D.C. 2009) (4-year-5-month delay did not violate Sixth Amendment where delay primarily resulted from the defendant impeding the government's effort to provide him with recordings that he had requested and from defendant's requesting and obtaining new counsel four times); State v. Jones, 35 So. 3d 644 (Ala. Crim. App. 2009) (more than 30-month delay did not violate Sixth Amendment); Sechler v. State, 316 Ga. App. 675, 730 S.E.2d 142 (20 12) (44-month delay did not violate the Sixth Amendment where the defendant requested transfer to another court and the defense made numerous pretrial motions and requests for continuances); People v. O'Quinn, 339 Ill. App. 3d 347, 791 N.E.2d 1066 (2003) (3-and-1/2 year delay did not violate the Sixth Amendment where the defendant obtained al128 of the continuances that were granted); Eguia v. State, 468 N.E.2d 559 (Ind. Ct. App. 1984) (over 3- year delay, responsibility for most of which was with the defendant, did not violate the Sixth Amendment); Dickerson v. Commonwealth, 278 S.W.3d 145 (Ky. 2009) (23-month delay did not violate Sixth Amendment); State v. Wilkins, 11-1395 (La. App. 3 Cir. 6/20/12), 94 So. 3d 983 (2,294-day delay did not violate Sixth Amendment where delay was largely attributed to the defendant's pretrial motions); State v. Uffelman, 626 A.2d 340 (Me. 1993) (25-month-delay did not violate the Sixth Amendment; the great bulk of delay was attributable to the defendant); People v. Bailey, 101 Mich. App. 144, 300 N.W.2d 474 (1980) (24-month delay due in large part to defense); Taylor v. State, 672 So. 2d 1246 (Miss. 1996) (1027-day delay, much of which was attributable to the defense); State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000) (3-year-326day delay, with much of the delay attributable to the defendant); Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575 (1991) (22-month delay, mostly attributable to the defendant's continuances); Prihoda v. State, 352 S.W.3d 796 (Tex. App. 2011) (3-year delay did not violate Sixth Amendment); State v. Leighton, 2000 WI App. 156,237 Wis. 2d 709, 616 N.W.2d 126 (2000) (26-month delay, largely the result of defense requests for time to prepare did not violate the Sixth Amendment; the record strongly indicated defendant did not want a speedy trial). 13 No. 86633-3 and child pornography. State v. Grenning, 169 Wn.2d 47, 234 P.3d 169 (2010); State v. Boyd, 160 Wn.2d 424, 158 P.3d 54 (2007); State v. Luther, 157 Wn.2d 63, 134 P.3d 205 (2006). In addition, some of the delay in this case was attributed to discovery from the King County Sheriffs Office in connection with preparation of the defense challenge to the sufficiency of the search warrant. Counsel's pursuit of this discovery was highly appropriate, obviously time-consuming, and required repeated efforts. And although the sheriffs office is a state entity, it was not involved in the trial prosecution. Moreover, as discovery proceeded, voluminous amounts of material were produced, necessitating additional time to investigate and review. Nearly all of the continuances were sought so that defense counsel could be prepared to defend. This is an extremely important aspect of the balancing and leads us to conclude that the length of delay was reasonably necessary for defense preparation and weighs against the defendant. Reason for Delay The second Barker factor is the reason for the delay. Barker, 407 U.S. at 531; Iniguez, 167 Wn.2d at 294. When the delay is due to trial preparation needs, as in this case, the first and second factors are closely related. The reason for the delay is 'the focal inquiry,' United States v. SantiagoBecerril, 130 F.3d 11, 22 (1st Cir. 1997) (quoting United States v. Sears, Roebuck & Co., 14 No. 86633-3 877 F.2d 734, 739 (9th Cir. 1989)), [t]he flag all litigants seek to capture, United States v. Loud Hawk, 474 U.S. 302, 315, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986). To begin, the United States Supreme Court reminds us that pretrial delay is often both inevitable and wholly justifiable. Doggett, 505 U.S. at 656. Thus, careful assessment of the reasons for the delay is necessary to sort the legitimate or neutral reasons for delay from improper reasons. A court looks to each party's responsibility for the delay, and different weights are assigned to delay, primarily related to blameworthiness and the impact of the delay on defendant's right to a fair trial. Barker, 407 U.S. at 531. At one end of the spectrum is the situation where the defendant requests or agrees to the delay and is therefore is deemed to have waived his speedy trial rights as long as the waiver is knowing and voluntary. Iniguez, 167 Wn.2d at 284 (citing Barker, 407 U.S. at 529). At the other end of the spectrum, if the government deliberately delays the trial to frustrate the defense, this conduct will be weighted heavily against the State. Barker, 407 U.S. at 531. Moving more toward the center, if the delay is due to the government's negligence or overcrowded courts, the delay is still weighted against the government, but to a lesser extent. ld. But if the government has a valid reason for the delay, such as a missing witness, then the valid reason may justify a reasonable delay. Id. We conclude that the second factor weighs more in favor of the State than the defense. Delay caused by defense counsel is chargeable to the defendant. Vermont v. Brillon, _U.S._, 129 S. Ct. 1283, 1290-91, 173 L. Ed. 2d 231 (2009); United States v. Gearhart, 576 F.3d 459, 463 (7th Cir. 2009) ([w]here a defendant seeks and obtains a 15 No. 86633-3 continuance, the defendant himself is responsible for the resulting delay); United States v. Gould, 672 F.3d 930,937 (lOth Cir. 2012) (delay of 1388 days; a '[d]elay[] attributable to the defendant do[es] not weigh against the government' (quoting United States v. Abdush-Shakur, 465 F.3d 458, 465 (lOth Cir. 2006))); United States v. Toombs, 574 F.3d 1262, 1274 (lOth Cir. 2009) ([d]elays attributable to the defendant do not weigh in favor of a Sixth Amendment violation; of the 671 days between the filing of [the] indictment and the start of his trial, 423 were attributable to motions filed by [the defendant]; this factor weighs heavily against the defendant); United States v. Garraud, 434 Fed. App'x 132, 137 (3d Cir. 2011) (unpublished) (no violation of Sixth Amendment from 22-month delay because the defendant was the cause for any delay in his trial; included in this time was an extension of time requested by the defendant for discovery); United States v. Gates, 650 F. Supp. 2d 81, 87 (D. Me. 2009); United States v. Hendrickson, 460 Fed. App'x 516, 520 (6th Cir. 2012) (unpublished); United States. v. Woodley, 484 Fed. App'x 310, 319, 2012 WL 2299534, 7 (11th Cir. 2012) (unpublished) (22-month delay attributable to defendant who filed over 40 pretrial motions and the district court conducted multiple hearings and proceedings); Locke v. Dittman, 915 F. Supp. 2d 670 (E.D. Pa. 2013) (where reason for delay originates with the defendant or his counsel, the delay is not considered for purposes of determining whether constitutional right to speedy trial is violated; 503-days delay attributable to defense counsel's requests); In re Personal Restraint ofBenn, 134 Wn.2d 868, 952 P.2d 116 (1998) (defendant charged in May 1988 and brought to trial in March 1990; virtually the entire 16 No. 86633-3 delay was attributable to continuances that were requested by the defense or agreed to by the defense and there was no evidence of prejudice due to the delay; no constitutional violation); Cookv. State, 810 N.E.2d 1064, 1068 (Ind. 2004). In Brillon, 129 S. Ct. at 1290-91, the Court explained: [D]elay caused by the defense weighs against the defendant Because the attorney is the [defendant's] agent when acting, or failing to act, in furtherance of the litigation, delay caused by the defendant's counsel is also charged against the defendant. Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991 ). The same principle applies whether counsel is privately retained or publicly assigned, for [ o]nee a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program. Polk County v. Dodson, 454 U.S. 312, 318, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981). (Footnote and internal quotation marks omitted.) 7 The Court concluded that the defendant's counsels' 'inability or unwillingness ... to move the case forward' may not be attributed to the State simply because they are assigned counsel. Brillon, 129 S. Ct. at 1292 (quoting State v. Brillon, 183 Vt. 475, 955 A.2d 1108, 1121 (2008)). Nearly all of the continuances in this case were sought to accommodate defense counsel's need to prepare for trial. Moreover, while it is true that the defendant objected to most of these continuances, it does not follow that granting them violated his right to a speedy trial. Many courts hold that even where continuances are sought over the defendant's objection, delay caused by the defendant's counsel is charged against the defendant under 7 The Court added that the rule is not absolute, and [d]elay resulting from a systemic 'breakdown in the public defender system,' ... could be charged to the State. Brillon, 129 S. Ct. at 1292 (quoting 955 A.2d at 1111). 17 No. 86633-3 the Barker balancing test if the continuances were sought in order to provide professional assistance in the defendant's interests. E.g., Bergman v. Cates, No. EDCV 12-00339AG, 2012 WL 5328717 (C.D. Cal. Aug. 10, 2012 (unpublished); Cox v. Warden, No. 1: 10-cv-117, 2011 WL 1980169, at  (S.D. Ohio Apr. 26, 2011) (unpublished); State v. Ward, 227 Kan. 663, 667, 608 P.2d 1351 (1980) (defendant objected to continuances and argued that timing of trial was a decision that must be left to the defendant; court disagreed, saying that [t]he matter of preparation and date of the trial and the type of defense relied upon are clearly strategical and tactical decisions which require trained professional skill and judgment which must rest with the lawyer; no violation of Sixth Amendment right to a speedy trial); Taylor v. State, 557 So. 2d 138, 141-42 (Fla. Dist. Ct. App. 1990) (noting tension between the right to speedy trial and the constitutional right to competent, prepared counsel; finding no violation of the constitutional right to speedy trial where counsel sought a continuance over defendant's objections), overruled on other grounds by Heuss v. State, 687 So. 2d 823 (Fla. 1996); State v. Taylor, 298 S.W.3d 482 (Mo. 2009) (counsel obtained continuances over objection of defendant to prepare for trial; lengthy delay; defendant effectively asserted constitutional right to speedy trial; no violation of Sixth Amendment); see also United States v. Brown, 498 F.3d 523, 531 (6th Cir. 2007) (delays resulting from defense counsel's need to prepare are attributable to the defendant); People v. Lomax, 49 Cal. 4th 530, 556, 234 P.3d 377, 112 Cal. Rptr. 3d 96 (2010) (when defendant refuses to waive time despite attorney's need for time to more prepare, conflict between statutory and constitutional rights to a 18 No. 86633-3 speedy trial and Sixth Amendment right to competent, adequately prepared counsel arises; thus, when counsel seeks reasonable time to prepare and delay is for the defendant's benefit, a continuance over the defendant's objection is justified). Washington courts have reached the same conclusion, albeit with regard to the rule-based speedy trial right. State v. Campbell, 103 Wn.2d 1, 15, 691 P.2d 929 (1984) ([c]ounsel was properly granted the right to waive trial in 60 days, over defendant's objection, to ensure effective representation and a fair trial); State v. Lucas, 167 Wn. App. 100, 112,271 P.3d 394 (2012); State v. Williams, 104 Wn. App. 516, 523, 17 P.3d 648 (2001); cf People v. Johnson, 26 Cal. 3d 557, 567, 162 Cal. Rptr. 431, 606 P.2d 738 (1980) (under California law, defense counsel's request for a continuance over a defendant's objection is treated as a defense time waiver provided defense counsel was pursuing his client's best interests in a competent manner); State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004) (request by defendant's attorney for a continuance to prepare for trial waives the defendant's statutory right to a speedy trial despite defendant's objection). As explained above, this case involved issues of some complexity, and contrary to some of Ollivier's arguments, complexity is not measured by whether the prosecutor believed that the trial itself would be noncomplex or whether matters explored in preparation for trial would actually be part of the trial. Much of the time expended in preparing for this case involved pretrial discovery and suppression issues, and these are the matters that led to most of the delay in this case. 19 No. 86633-3 Ollivier's arguments that delay should be attributed to the trial court and the prosecution are unavailing. Ollivier argues that the trial court is responsible in part for delay in obtaining discovery, citing United States v. Graham, 128 F.3d 372, 374 (6th Cir. 1997). But Graham involved discovery from the prosecution, a party to the action. Here, discovery was sought from state entities that were not parties in the case, and the trial court simply did not have the same responsibility as it would if a party were dilatory or nonresponsive to discovery requests. Ollivier also argues that the State had an affirmative duty to assist the defense obtain discovery about the investigation into Detective Saario's misconduct but instead remained passive. Ollivier urges that knowledge of the investigation is imputed to the State and the State should have timely disclosed this knowledge to Ollivier as Brady evidence material to Saario' s credibility, 8 but instead the State continued its passivity. He cites Kyles v. Whitley, 514 U.S. 419,437-38, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) in support. Given our analysis below with regard to sufficiency of the affidavit in support of the search warrant and whether it was validly executed, we do not agree that any Brady material evidence is at issue. Materiality means a 'reasonable probability' of a different result, which is shown when the government's evidentiary suppression 'undermines confidence in the outcome ofthe trial.' Kyles, 514 U.S. at 434 (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)). The evidence of images constituting child pornography was seized under a valid warrant 8 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 20 No. 86633-3 validly executed. The State presented evidence that Ollivier was the individual in possession of the child pornography. Even if we assume the general soundness of Ollivier's rather attenuated argument, the information about the investigation and Saario's resignation-with any impeachment value it had on the issue of Saario's credibility-is not material because even with this information there was no reasonable probability of a different result. Kyles does not support Ollivier's claim that the State should be blamed for the delay required to obtain discovery about the investigation into Saario's misconduct. We also note that despite Ollivier' s argument suggesting otherwise, neither the court nor the prosecution had a specific duty to assist Ollivier in obtaining discovery from the Department of Corrections, also a nonparty. Finally, even if one assumes that any delay was due to institutional dysfunctions attributable to the State, this would weigh against the State but less heavily than 'deliberate delays or delays related to inexcusable inefficiency.' United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980) (quoting United States v. Companion, 545 F.2d 308, 312 n.3 (2d Cir. 1976)). In summary, most of the continuances were sought by defense counsel to provide time for investigation and preparation of the defense. Time requested by the defense to prepare a defense is chargeable to the defendant, and this factor weighs heavily against the defendant. 21 No. 86633-3 Assertion of Rights The third Barker factor is the defendant's assertion of or failure to assert his right to a speedy trial. Barker, 407 U.S. at 514, 528. The Court added in Barker that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Id at 532. Assertion of the speedy trial right is important in the balancing. The Court explained that [t]he more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Id. at 531-32. Thus, assertion of the right is relevant to whether a violation has occurred and also helps to establish or reinforce the conclusion that the defendant has not waived the right. It may be fairly unusual for a defendant to object to nearly all of a large number of continuances sought by his own attorney. Here, however, Ollivier repeatedly objected to counsel's motions for continuances, and he maintains that therefore his rights to a speedy trial were timely asserted. But under the circumstances, these objections do not weigh in favor of the conclusion that constitutional speedy trial violations occurred. First, Ollivier's attorney acted as his agent and was responsible for investigating issues and events related to possible defenses. She did this, for example, through discovery requests for records from the King County Sheriffs Office concerning Detective Saario, who prepared the affidavit in support of a search warrant, which 22 No. 86633-3 counsel sought in order to show that the affidavit contained deliberate falsehoods. Counsel also sought continuances to obtain expert assistance in connection with child pornography on the computer in Ollivier's residence and to obtain information from the Department of Corrections about another possible suspect. These matters were all relevant avenues of investigation and preparation for Ollivier's defense. In light of the Court's discussion in Brillon, we conclude that the delay resulting from such continuances must be attributed to the defense because delays caused by defense counsel are properly attributable to the defendant. Brillon, 129 S. Ct. at 1293. Second, a contrary conclusion would encourage objections even if defense counsel is pursuing a legitimate defense and the continuances are unquestionably requested for this purpose. Here, as noted, Ollivier has acknowledged that seeking the continuances was reasonable. Appellant's Opening Br. at 20 (Mr. Ollivier concedes, with regard to his rule-based challenge, that any of the continuances, standing alone, would not be an abuse of discretion (emphasis omitted)). His concession establishes that each request for a continuance was a legitimate request for an extension of time to pursue matters in preparation of his defense. But if defense counsel can seek continuances for any purpose and at the same time the defendant can file effective objections-a nearly automatic escape hatch would be created should the trial not proceed as hoped. Indeed, if continuances over the defendant's objections were to weigh in favor of the defendant's claim of a violation, then counsel might be encouraged 23 No. 86633-3 to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests ... with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic. Brillon, 129 S. Ct. at 1292. 9 Third, this brings to the fore the important fact that Ollivier's right to counsel was furthered by counsel's requests. If because of the objections the trial court had denied counsel's requests for continuances that were needed to prepare for trial, then Ollivier might have had a strong claim that the right to effective assistance of counsel had been denied. The third factor, whether the defendant has asserted his speedy trial rights, does not weigh in Ollivier's favor, given that his objections cannot be given effect when his own counsel sought the continuances to prepare for trial. But this factor does not weigh in favor of the State, either. Whether and how a defendant asserts his right is closely related to the other factors .... The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. Barker, 407 U.S. at 531. This brings us to this last of the four factors. 9 The Court was specifically referring to appointed counsel's requests if appointed counsel was considered to be acting as the State for speedy trial purposes. The same reasoning applies here, however. 24 No. 86633-3 Prejudice Under the fourth factor, prejudice to the defendant as a result of delay may consist of(1) 'oppressive pretrial incarceration,' (2) 'anxiety and concern ofthe accused,' and (3) 'the possibility that the [accused's] defense will be impaired' by dimming memories and loss of exculpatory evidence. Doggett, 505 U.S. at 654 (alteration in original) (quoting Barker, 407 U.S. at 532). These particularized showings of prejudice are not just theoretical underpinnings to presumed prejudice, they are specific types of prejudice that a defendant can offer in any case but, as in the present case, a defendant must offer these or other particularized showings of prejudice when the delay is not due to bad faith on the government's part and the delay is not sufficiently long for a presumption of prejudice to arise. !d. at 656-68. 10 Contrary to Mr. Ollivier's contention, prejudice is not always presumed. To the extent that our decision in Iniguez may have been less than clear on this point, we clarify it now. A defendant ordinarily must establish actual prejudice before a violation of the constitutional right to a speedy trial will be recognized. As one court has accurately summarized the analysis: The presumption of prejudice discussed in Doggett, however, is not automatically applicable whenever a defendant's trial is delayed. Pretrial delay is often both inevitable and wholly justifiable. !d. at 656, 112 S. Ct. 2686. When the government prosecutes a case with reasonable diligence, a defendant who cannot demonstrate how his defense was prejudiced with specificity will not make out a speedy trial claim no matter how great the ensuing delay. See id. 10 The presumption of prejudice referred to in connection with the fourth Barker factor is prejudice that does not require that the defendant show actual prejudice to his defense. It is to be distinguished from the threshold presumption of prejudice that triggers the Barker analysis. 25 No. 86633-3 Where there is evidence of negligence on the government's part, but no bad faith, the Supreme Court has declared that a presumption of prejudice may arise, depending upon the length of the delay. See id. at 657, 112 S. Ct. 2686. [T]o warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice. !d. In Doggett, the Supreme Court noted an extraordinary 8 1/2 year lag between Doggett's indictment and arrest, id. at 652, 112 S. Ct. 2686, and concluded that this delay was sufficient to create a presumption of prejudice to the defendant. United States v. Howard, 218 F.3d 556, 564-65 (6th Cir. 2000) (emphasis added). 11 11 Doggett's explanation is more lengthy, but in relevant part is as follows: Our speedy trial standards recognize that pretrial delay is often both inevitable and wholly justifiable. The government may need time to collect witnesses against the accused, oppose his pretrial motions, or, if he goes into hiding, track him down .... [I]fthe Government had pursued Doggett with reasonable diligence from his indictment to his arrest, his speedy trial claim would fail. Indeed, that conclusion would generally follow as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense . . . . [O]n the other hand, ... Doggett would prevail if he could show that the Government had intentionally held back in its prosecution of him to gain some impermissible advantage at trial. . . . Barker stressed that official bad faith in causing delay will be weighed heavily against the govermnent ... and a bad-faith delay the length of this negligent one would present an overwhelming case for dismissal. Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground. While not compelling relief in every case where bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him .... Barker made it clear that different weights [are to be] assigned to different reasons for delay. Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused's defense, it stilljctlls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows . ... Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state's fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority .... To be sure, to warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence 26 No. 86633-3 This analysis requires a showing of particularized prejudice when shorter delays and no government bad faith are involved. Presumed prejudice is recognized only in the case of extraordinary delay, except when the government's conduct is more egregious than mere negligence. WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING & ORIN S. KERR, CRIMINAL PROCEDURE§ 18.2(e) (3d ed. 2007). This treatise explains that in applying the analysis from Doggett courts 'generally have found presumed prejudice only in cases in which the post-indictment delay lasted at least five years except where the government was responsible for the delay by virtue of something beyond simple negligence.' !d. (quoting United States v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir. 2003)). In Serna-Villarreal, 352 F.3d at 232, the court summarized: [T]his Court and others generally have found presumed prejudice only in cases in which the post-indictment delay lasted at least five years. See, e.g., Doggett, 505 U.S. at 658, 112 S. Ct. 2686 (finding presumed prejudice after a government-caused delay of six years); [United States v.] Bergfeld, 280 F.3d [486,] 488 [(5th Cir.2002)] (finding presumed prejudice after a delay of five years and three months but noting that, [h]ad the delay been considerably shorter, [the defendant] might well have been properly required to demonstrate prejudice); United States v. Cardona, 302 F .3d 494, 499 (5th Cir.2002) (finding presumed prejudice after a delay of five and one-half years); United States v. Brown, 169 FJd 344, 350 (6th demonstrably causing such prejudice. But even so, the Government's egregious persistence in failing to prosecute Doggett is clearly sufficient. The lag between Doggett's indictment and arrest was 8 1/2 years, and he would have faced trial 6 years earlier than he did but for the Government's inexcusable oversights. The portion of the delay attributable to the Government's negligence far exceeds the threshold needed to state a speedy trial claim; indeed, we have called shorter delays extraordinary. ... When the Government's negligence thus causes delay six times as long as that generally sufficient to trigger judicial review, ... and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant's acquiescence, ... nor persuasively rebutted, ... the defendant is entitled to relief. Doggett, 505 U.S. at 656-58 (emphasis added). 27 No. 86633-3 Cir.1999) (finding presumed prejudice after a five and one-half year delay); United States v. Shell, 974 F.2d 1035, 1036 (9th Cir.1992) (finding presumed prejudice after a six-year delay). In the instant case, the delay between indictment and trial was, at most, only three years and nine months, considerably less than the delay in the cases cited above. And, if this Court considers only the period between the time of the indictment and the time that the government began diligently to pursue the charge, the delay shortens to three years and six months. Accordingly, the length of delay factor of the Barker balancing test does not weigh heavily in [the defendant's] favor. Numerous cases exemplify this part of the Barker analysis as more fully explained in Doggett. E.g., United States v. Malina-Solorio, 577 F.3d 300, 307 (5th Cir. 2009); Howard, 218 F.3d at 564-65; Hills, 618 F.3d at 632; United States v. Toombs, 574 F.3d 1262, 1275 (lOth Cir. 2009) ([i]n Doggett v. United States, the Supreme Court held that if there is extreme delay, the defendant need not present specific evidence of prejudice and instead may rely on the presumption of prejudice created by the extreme delay). The delay in Ollivier's case is not lengthy enough to constitute extreme delay warranting the presumption of prejudice. See, e.g., Toombs, 574 F.3d 1275 (22-month delay does not constitute extreme delay); Serna-Villarreal, 352 F.3d at 232 (three years and nine months insufficient for presumed prejudice); United States v. Williams, 557 F.3d 943, 950 (8th Cir. 2009) (400-day delay was not of such length to eliminate the need to show particularized prejudice and because there is no evidence that the delay impeded [the defendant's] defense or threatened to deprive him of a fair trial, ... there was no Sixth Amendment violation). The next issue, therefore, is whether Mr. Ollivier has established particularized prejudice that would weigh heavily against the State. As mentioned, the three types of 28 No. 86633-3 prejudice identified in Barker and Doggett are oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the defendant's defense will be impaired by dimming memories and loss of exculpatory evidence. Oppressive Pretrial Incarceration While Ollivier spent almost two years in jail awaiting his trial this is not, on its face, oppressive. Periods of incarceration as long or longer have been found not oppressive. E.g., Hartridge v. United States, 896 A.2d 198 (D.C. 2006) (27 months); United States v. Leeper, No. 08-CR-69S-5,12, 2009 WL 5171831, at  (W.D.N.Y. Dec. 23, 2009) (unpublished) (22 months; this amount of time, without more, cannot show undue oppression); United States v Herman, 576 F.2d 1139, 1147 (1978) (22 months); State v. Couture, 2010 MT 201, 357 Mont. 398, 418-19, 240 P.3d 987 (924 days); see also Smith v. State, 275 Ga. 261, 263, 564 S.E.2d 441 (2002) (19-month incarceration; no evidence this was oppressive to a degree beyond that which necessarily attends imprisonment). Moreover, his complaints about jail conditions do not suggest that conditions were oppressive; rather, the conditions are common to incarceration. 12 Undue Anxiety and Concern Anxiety and concern are often experienced by defendants awaiting trial. [T]he second type of prejudice ... is always present to some extent, and thus absent some unusual showing is not likely to be determinative in defendant's favor. LAFAVE et al., supra,§ 18.2(e) (footnote omitted); United States v. Henson, 945 F.2d 430, 438 (1st Cir. 12 Ollivier complains that he was prejudiced because of the effect of the continuances on his potential for release on bond. However, he has failed to comprehensibly explain a connection between the delay and the prejudice that he claims was the result. 29 No. 86633-3 1991) (considerable anxiety normally attends the initiation and pendency of criminal charges; hence only 'undue pressuresl are considered); United States v. Dirdenl 38 F.3d 1131l 113 8 (1Oth Cir. 1994) (the focus is whether there is some special harm suffered which distinguishes [the defendantls] case). Mr. Ollivier has not established this type of unusual anxiety and concern. Impairment of Defense The most important of the three interests is protection against impairment of the defense because if the defendant cannot adequately prepare his easel the fairness ofthe entire system is skewed. Barker, 407 U.S. at 532. In Ollivier's case, however, most of the continuances that resulted in the delay of which he complains were requested by defense counsel in order to prepare an adequate defense. Thus, any impairment of this interest must be weighed against the benefits obtained via the continuances, such as the records pertaining to the honesty .or dishonesty of the detective who sought the search warrant. Further, although he expresses concern about one of his witnesses' ability to recall and testify about matters, the witness did testify and consistently with Ollivier's account of events, i.e., that Ollivier never showed him child pornography. Ollivier's ability to call another witness was not impaired as claimed because he could have been called. The only claimed impairment of his defense that might be implicated concerns whether witnesses could recall the facts pertaining to his claim that officers failed to give him a 30 No. 86633-3 copy of the search warrant. But as we explain below, a copy of the search warrant was posted at the apartment and no violation of CrR 2.3( d) occurred. Balancing the Factors Balancing the Barker factors clearly weighs against the defendant. The delay was not unduly long; the reasons for the delay are primarily attributable to the defense because defense counsel sought numerous continuances to facilitate investigation and preparation of the defense; although Ollivier objected to most of the continuances and asserted his speedy trial rights, this factor does not strongly weigh in his favor in light of the reasons for the continuances and the absence of actual prejudice; and because the delay was not sufficiently extraordinary to be presumed prejudicial, Ollivier was required to show particularizyd prejudice and he has made an insufficient showing to tip the scales in his favor. We conclude that there was no violation ofOllivier's constitutional right to a speedy trial under the Sixth Amendment and article I, section 22. Sufficiency of the Affidavit in Support of the Search Warrant Ollivier challenges the seizure of the computers and other property on the grounds of an invalid search warrant. He first maintains that there was an insufficient showing of probable cause once material misrepresentations made by Detective Saario were redacted from the affidavit in support of the warrant. Article I, section 7 provides that [n]o person shall be disturbed in his private affairs, or his home invaded, without authority oflaw. A search warrant may be issued 31 No. 86633-3 only on a determination of probable cause. State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003). Probable cause exists when the affidavit in support of the search warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime may be found at a certain location. !d. Affidavits in support of a search warrant are examined in a commonsense, not a hypertechnical manner, and doubts are to be resolved in favor of the warrant. State v. Chamberlain, 161 Wn.2d 30, 41, 162 P.3d 389 (2007); Jackson, 150 Wn.2d at 265. Preliminary Showing of Material Misrepresentation or Omission A search warrant may be invalidated if material falsehoods were included in the affidavit intentionally (deliberately) or with reckless disregard for the truth, or if there were deliberate or reckless omissions of material information from the warrant. State v. Chenoweth, 160 Wn.2d 454,478-79, 158 P.3d 595 (2007); State v. Garrison, 118 Wn.2d 870, 872-73, 827 P.2d 1388 (1992). If the defendant makes a substantial preliminary showing of such a material misrepresentation or omission, the defendant is entitled to a Franks 13 evidentiary hearing. Garrison, 118 Wn.2d at 872. If at the hearing the defendant establishes the allegations, then the material misrepresentation must be stricken or the omitted material must be included and the sufficiency of the affidavit then assessed as so modified. State v. Cord, 103 Wn.2d 361,367,693 P.2d 81 (1985). If at that point 13 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). 32 No. 86633-3 the affidavit fails to support a finding of probable cause, the warrant will be held void and evidence obtained when the warrant was executed must be suppressed. ld. 14 Here, Ollivier made a preliminary showing that triggered an evidentiary hearing. The trial court found that Detective Saario deliberately misrepresented that Ollivier's roommate had told her that Ollivier kept a red, locked box containing pornographic magazines with photographs of unclothed children under 16 years of age in sexually explicit poses for sexual gratification. The roommate had actually told her that Ollivier kept a red box with pornography, including Playboy magazines and Barely Legal magazines. Clerk's Papers at 233 (Finding of Fact l.f). The difference is significant in that child pornography is illegal to possess. During argument to the trial court, Ollivier claimed that another misrepresentation was made, i.e., that the roommate saw Ollivier looking at both computer and print images of children under 10, when the roommate actually said only that he saw Ollivier viewing computer images. Qualifying Information Sufficient To Establish Probable Cause The trial court determined that when the false information was omitted, there was sufficient qualifying information in the affidavit to establish probable cause to support issuance of the search warrant. 14 A similar analysis applies when information obtained by an unconstitutional search is included in an affidavit of probable cause. The illegally obtained information may not be used to support the warrant and the court must view the warrant without the illegally obtained information and determine whether the remaining facts in the affidavit are sufficient to establish probable cause to support the search warrant. Then, if the probable cause is lacking, the warrant is invalidated and evidence seized pursuant to the warrant must be excluded. State v. Eisfeldt, 163 Wn.2d 628, 640, 185 P.3d 580 (2008); State v. Ross, 141 Wn.2d 304, 311-15, 4 P.3d 130 (2000). 33 No. 86633-3 The determination whether the qualifying information amounts to probable cause is a legal question that is reviewed de novo. State v. Garcia-Sa/gada, 170 Wn.2d 176, 240 PJd 153 (2010). We agree with the trial court that the affidavit, after the misrepresentations are deleted, establishes probable cause. It states that the affiant received a telephone call from a ceo with whom she had worked for the past four years on criminal investigations, including investigations involving sex related crimes. It states the CCO advised the affiant that one of the CCO's clients, Eugene Anderson, who was a registered sex offender, had told the CCO that he had seen his roommate Ollivier, also a registered sex offender, during a recent, specified 10-day period looked at many photographs on his personal home computer at a specified address and these photographs were of children under 10 years of age who were posed, deliberately exposing their genitals. Anderson also told the CCO that he saw Ollivier view depictions of minors under age 16 engaging in sexual intercourse. The affidavit then relates that the affiant took Anderson's taped statement in which he said he knew the individuals in the photos were prepubescent because of their physical characteristics (which were described) and also said that while he lived with Ollivier, Ollivier viewed child pornography everyday. Informant's Credibility Mr. Ollivier also contends, however, that the affidavit is insufficient because it does not establish Anderson's credibility as an informant. We continue to follow the Aguilar-Spinelli standard under article I, section 7. 15 See State v. Lyons, 174 Wn.2d 354, 15 Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) were overruled by Illinois v. Gates, 34 No. 86633-3 359 n.l, 275 P.3d 314 (20 12). This standard has two prongs. The basis of knowledge prong requires that the affidavit contain sufficient facts to convince a reasonable person of the probability the defendant is engaged in criminal activity and that evidence of criminal activity can be found at the place searched. !d. at 359 & 359 n.2. The veracity prong requires that the affidavit contain information from which a determination can be made that the informant is credible or the information reliable. State v. Jackson, 102 Wn.2d 432, 435, 688 P.2d 136 (1984). When a citizen informant provides information, a relaxed showing of reliability suffices because there is less risk of the information being a rumor or irresponsible conjecture which may accompany anonymous informants and an identified informant's report is less likely to be marred by self-interest. State v. Gaddy, 152 Wn.2d 64, 72-73, 93 P.3d 872 (2004); see Chamberlin, 161 Wn.2d at 42; State v. Huft, 106 Wn.2d 206, 211, 720 P.2d 838 (1986) (citing State v. Northness, 20 Wn. App. 551, 557, 582 P.2d 546 (1978)). Accordingly, [c]itizen informants are deemed presumptively reliable. Gaddy, 152 Wn.2d at 73; see State v. Chenoweth, 160 Wn.2d 454,483, 158 P.3d 595 (2007) (reference to the presumed inherent reliability of a citizen informant); Charles W. Johnson, Survey of Washington Search and Seizure Law: 2005 Update, 28 SEATTLE U. 462 U.S. 213, 103 S. Ct. 2317,76 L. Ed. 2d 527 (1983), in which a totality ofthe circumstances analysis was adopted for purposes of the Fourth Amendment. Both Aguilar and Spinelli involved tips from confidential informants and we recently acknowledged that the Aguilar-Spinelli standard applies to confidential informants. Lyons, 174 Wn.2d at 359 & 359n.l (we still adhere to theAguilar[-]Spinelli standard for establishing probable cause via a confidential informant). We also employ the Aguilar-Spinelli standard when a named citizen informant provided the information used to establish probable cause. State v. Chamberlin, 161 Wn.2d 30, 41-42, 162 P.3d 389 (2007). 35 No. 86633-3 L. REV. 467, 534-35 (2005) (and cases cited therein) (when a named informant provides information in the form of facts and circumstances sufficiently detailed to establish personal knowledge, the informant may be presumed to be reliable when his or her identity is disclosed to the issuing judge). The defendant must rebut the presumption of reliability to overcome it. See Gaddy 152 Wn.2d at 73-74. The second prong, basis of knowledge, may be satisfied by a showing that the informant had personal knowledge of the facts provided to the affiant. State v. Vickers, 148 Wn.2d 91, 112, 59 P.3d 58 (2002). Here, Mr. Ollivier concedes that Anderson had a basis of knowledge as to whether there was pornography in the apartment. The concession is appropriate because Anderson lived in the apartment for a brief period and provided information about personal observations of child pornography on Ollivier's computer. Ollivier contends, however, that no presumption of credibility should attach because Anderson was under psychiatric care, jailed due to community custody violations at the time he provided the information, and if he was found in possession of child pornography, he could have been punished, but none of this information was in the affidavit. These are appropriate facts to present in an effort to rebut the presumption of credibility attaching to a citizen informant, but we do not agree these facts mean the presumption does not arise. Nor do they rebut the presumption here. As the State demonstrates, the affidavit identified Anderson as a prior sex offender under the supervision of a ceo, and the fact he told the ceo about child pornography in 36 No. 86633~3 the same residence where he had resided, which was revealed in the affidavit, had the potential to expose him to additional sanctions. Thus, rather than bringing his credibility into question, this information showed that he would be motivated to tell the truth because he was a supervised registered sex offender and that his information was reliable. Ollivier does not explain why the fact that Anderson was under psychiatric care shows that he was not credible or his information was unreliable in the circumstances. In sum, we find that the affidavit sufficiently disclosed facts from which the judge could assess the reliability of Anderson's information and the basis of his knowledge. CrR 2.3(d) Mr. Ollivier contends that the evidence found on his computer must be suppressed because officers failed to present him with a copy of the search warrant before it was executed, as he says is required by CrR 2.3(d). The State maintains that there is no such requirement under the rule. CrR 2.3( d) provides in part: Execution and Return With Inventory. The peace officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken. If no such person is present, the officer may post a copy of the search warrant and receipt. We construe court rules using the same rules that we apply when construing statutes. State v. McEnroe, 174 Wn.2d 795,800,279 P.3d 861 (2012). The plain language at issue provides that if an officer takes property pursuant to the warrant, then the officer shall give a copy of the warrant to the person from whose premises the 37 No. 86633-3 property is taken or post a copy of the warrant. 16 Nothing in the language of the rule says that a copy of the warrant must be provided before the search is begun. Here, property was taken and Detective Saario posted a copy of the warrant before leaving. We do not agree that there was a violation of the rule.",analysis
+11,2251415,1,1,"Appellant claims the evidence was insufficient to convict him of murder. The facts are as follows. On the morning of June 6, 1977, Clarence Isakson was shot and killed in his home in Hobart, Indiana. Mrs. Isakson was beaten and shot in the head, but she survived the attack. She told a neighbor that four people in stocking caps had broken in, beaten her, and ransacked the house. She said Mr. Isakson was done for. Mrs. Isakson did not realize she had been shot in the head. At the scene, the police found as evidence a shoe print, a man's wallet, a beer bottle, a glove, and a flashlight. Investigation of the crime led the police to suspect Glenn Cornett and William Shields, the appellant. Police officer Larry Todd was acquainted with Cornett's wife, Phyllis, and he questioned her about her knowledge of the incident. Initially, Phyllis denied having any information about the murder. Todd testified that she appeared shaken when he asked her about it. There was testimony that Phyllis was afraid of her husband and that he had threatened her not to talk to the police about the crime. Finally, however, after Glenn was incarcerated on other charges and Phyllis was reassured that he would not soon be released, she indicated to Officer Todd that she would tell about the Isakson murder. In the first interview of Phyllis, she told the police that Glenn and appellant had killed Isakson. She said that one day in June, 1977, Glenn came home with blood on his clothes. Later, he was upset because he could not find one of his gloves. She also said Shields had a flashlight similar to the one found at the scene. Phyllis told the police that Shields had admitted to her his role in the crime. She said appellant told her that he and Glenn wore ski masks, and that Glenn had kicked in the Isakson's door and Shields had followed with the gun. They hit Mrs. Isakson, and when Shields could not bring himself to shoot her, Glenn took the gun and shot her in the head. Then Glenn shot Mr. Isakson. Phyllis told the police the names of the other two men who drove with Glenn and Shields to the Isakson's house, and she reported the driver's name. In a second interview, Phyllis described the layout of the Isakson's house, and she said the glove found at the scene resembled Glenn's lost glove. Officer Jeffrey Miller testified that her description of the scene was corroborated by the physical evidence and that he checked the newspapers after talking to her and verified that she could not have taken her information from the newspapers. The more Phyllis told them, the more the officers believed that she too had been in the Isakson's house. Nonetheless, she maintained she was not there but that she either dreamed it or Shields had told her about it. Finally, Phyllis admitted that she had been at the scene of the crime. She said she had tried to place it in her mind as only a dream because it had been such a horrible experience. In a third interview, she said that she, Glenn, appellant, and three others drove to the Isakson's house to commit a robbery. Appellant and Glenn went in while the others waited in the car. Phyllis said she saw Mrs. Isakson run out the front door, but Glenn and Shields dragged her back inside. Phyllis then started to approach the house and she heard a gunshot. When she entered, she saw Mrs. Isakson on the floor. Phyllis heard another gunshot, walked down the hall, saw Glenn and caught a glimpse of Mr. Isakson on his bed. Phyllis testified at trial. Her testimony tracked what she had told the detectives little by little in the three interviews. Again, she described the layout of the house and what she observed inside. She said her husband had threatened her to remain silent by holding a gun to her head. She identified Glenn's glove and his footprint from photographs of the scene. She was unequivocal in her testimony that Shields entered the house with Glenn and that while they were inside Mr. Isakson was shot. Her testimony clearly implicated appellant in the murder either as the principal or an accomplice. In support of his claim that the evidence was insufficient, Shields argues specifically that Phyllis' testimony was inherently improbable and unworthy of belief. He points to her motive to have her husband convicted, her attempted suicide, and a visit she made to a psychiatrist. He also reminds us of her prior inconsistent statements, such as her story to the police that she dreamed the incident. Additionally, he points to the testimony of Valparaiso attorney, Calvin Hubbell, who stated that Phyllis telephoned him during the period of time she was being interviewed by the police and told him she did not know anything about the crime and that she had implicated Glenn and appellant only to tell the police what she thought they wanted to hear. Phyllis denied having placed that phone call. Shields is asking that we reweigh the evidence and the credibility of the witnesses. We will not, as our standard of review is to look only to the evidence most favorable to the State. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260. Where substantive evidence of probative value was elicited on each element of the crime, we will not overturn the verdict. Id. Phyllis' testimony was corroborated by physical evidence and, despite some inconsistencies and her initial reluctance to admit her own involvement, she was unequivocal in her implication of appellant. We cannot find she was unworthy of belief. The jury was aware of the inconsistencies in Phyllis' testimony and of her motives and biases, and it alone was responsible for assessing her credibility. Wilson v. State (1983), Ind., 455 N.E.2d 1120. Shields also argues that the court erred in not directing a verdict in his favor after, he claims, the State failed to prove venue and identification of Shields as the perpetrator of the crime. Shields presented a defense at trial, and, therefore, relinquished any argument in favor of a directed verdict. Hall v. State (1978), 269 Ind. 24, 378 N.E.2d 823. In any event, we disagree with him that the State's case was deficient on venue and identification. After Phyllis testified about Shields' role in the crime, she was asked, Do you see Bill Shields, you've said was with you at that house in June of 1977, do you see him in the courtroom today? She answered, Yes, I do, and the prosecutor said, I wonder if you would point him out and describe briefly what he is wearing? Her response was, He's (sic) dark brown jacket with light pants, glasses, moustache. Although the record does not show explicitly that Phyllis pointed out appellant, she was asked to do so and to describe him, which she did. The clear implication is that her identification was of the defendant, William Shields. He has not shown that the identification was insufficient. See, Iseton v. State (1984), Ind. App., 472 N.E.2d 643. Proper venue, proof that the crime charged occurred in the county in which the trial is taking place or from which the cause was removed, must be proven by a preponderance of the evidence. Morris v. State (1980), 274 Ind. 161, 409 N.E.2d 608. Shields contends the evidence was insufficient to prove that the murder of Mr. Isakson occurred in Lake County, Indiana. As with any sufficiency question, we will not reweigh the evidence. Id. At trial, Ronald Kurth identified himself as a patrolman with the Lake County Police Department. He was dispatched to the scene of the crime when it was first reported. Also, a neighbor of the Isakson's, to whom Mrs. Isakson went for help after the incident, testified that her address was 1205 E. 37th Avenue, Hobart, across the street from the Isaksons, whose address she said was Route I, Hobart Township. We take notice of the fact that Hobart Township is in Lake County, Indiana. Although the State did not elicit direct testimony that proper venue was in Lake County, we find the circumstantial evidence was sufficient to lead the trier of fact to conclude that the venue of the trial was proper. See, Morris v. State (1980), 274 Ind. 161, 409 N.E.2d 608.",sufficiency of the evidence
+12,1059037,1,4,"To prove arson, as with any criminal charge, the Commonwealth must establish beyond a reasonable doubt both the corpus delicti and criminal agency. Cook v. Commonwealth, 226 Va. 427, 431, 309 S.E.2d 325, 328 (1983) (citing Jones v. Commonwealth, 103 Va. 1012, 1021, 49 S.E. 663, 666 (1905)). The corpus delicti of arson must consist of proof that the fire was of incendiary, rather than of accidental origin. Id. Here, Riner challenges the sufficiency of the evidence only with regard to the corpus delicti, i.e. whether the fire was of incendiary origin. Notably, Riner does not challenge on appeal the sufficiency of the evidence to support the jury's determination that he was the criminal agent. In other words, Riner implicitly agrees that the Commonwealth presented sufficient evidence to establish beyond a reasonable doubt that, if the fire was of incendiary origin, he was the criminal agent who started the fire. With regard to the corpus delicti, a defendant has the benefit of a presumption that the fire was caused by accident. Id. (citing Simmons v. Commonwealth, 208 Va. 778, 782, 160 S.E.2d 569, 572-73 (1968)). That presumption is, however, rebuttable. Knight v. Commonwealth, 225 Va. 85, 89, 300 S.E.2d 600, 602 (1983). Whether the origin of a fire was accidental or incendiary is a question of fact, and resolution of that question may, and often must, turn upon the weight of circumstantial evidence. Id. Such is the present case. The Commonwealth's evidence regarding the incendiary origin of the fire came primarily from two individuals, Clark D. Davenport and John D. Walker, both of whom testified as experts in the field of investigating the origin and cause of fires. Davenport and Walker each inspected the Riner home after the fire and concluded that the fire was of incendiary origin. Specifically, Walker opined that the fire started at the south end of the home where the living room and master bedroom were located, and that it was caused by an intentional human act meaning it was an incendiary or an arson fire. In his opinion, the fact that the floor of the front porch and the uprights in the porch were completely consumed by the fire was unusual and indicated a tremendous amount of fire at the whole front end of that home. Because of the extent of burning on the floor of the Riner house and the burn patterns there, Walker further opined that liquid accelerant had been poured on the fire and that the liquid ignited and burned the floor first before everything else fell down on top of the floor. Walker testified that he eliminated any potential accidental cause of the fire and found no indication that the fire started in the electrical panel box because there was no evidence of arcing there. Even though an analysis of debris samples that Walker had collected from the fire scene contained no evidence of liquid accelerant residue, Walker did not alter his conclusions. Similarly, Davenport opined that deep seated charring of burn patterns in areas on the floor of the master bedroom were caused by burning of an ignitable liquid that had been poured on the floor. During his investigation of the fire, Davenport found evidence of newspaper strips in several areas of the house, including the floor in the master bedroom where Denise's body was found. Davenport opined that the newspapers were used as an accelerant to spread the fire. He stated that the newspapers in conjunction with an ignitable liquid were spread throughout the first floor of the dwelling in the areas where [he] determined that a flammable liquid or ignitable liquid patterns were discovered. Davenport further testified that he found no evidence that would cause him to conclude that the origin of the fire could not be determined or was accidental. He also discounted a theory advanced by one of the defense's expert witnesses that the fire had been caused by a short circuit in a baseboard heater. In Davenport's opinion, the evidence of short-circuiting that he found in the wiring that remained in the house was the result of the fire and not the cause of it. When asked what kind of analysis he performed to eliminate other possible sources of ignition, Davenport responded, In conjunction with Mr. Riner's statements to me, as far as the condition of the house, smoking habits, electrical problems, coupled with what I observed at the scene, I was able to eliminate the natural or accidental fire causes verses [sic] what I saw; glaring evidence of an ignitable liquid poured and burned. It is true, as Riner argues, that other expert witnesses who investigated the fire, some of whom testified on behalf of the Commonwealth, opined that the origin of the fire could not be determined. It is also true that Riner introduced evidence showing that the fire had been caused by a short circuit in a baseboard heater. But, as Riner conceded during oral argument, the conflicting evidence created a credibility battle among the experts. `Conflicting expert opinions constitute a question of fact ....' Mercer, 259 Va. at 242, 523 S.E.2d at 217 (quoting McCaskey v. Patrick Henry Hospital, 225 Va. 413, 415, 304 S.E.2d 1, 2 (1983)). In that situation, it is within the province of the finder of fact, in this case the jury, `to assess the credibility of the witnesses and the probative value to be given their testimony.' Id. (quoting Richardson v. Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 151 (1991)). Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court, see Higginbotham, 216 Va. at 352, 218 S.E.2d at 537, we conclude that there was sufficient evidence from which the jury reasonably could have inferred that the fire was incendiary in origin. When a fact-finder has accepted the testimony of a qualified expert witness, which negates every reasonable possibility that a fire was of accidental origin, we cannot hold the evidence insufficient, as a matter of law, to support a finding that the fire was of incendiary origin. Cook, 226 Va. at 432, 309 S.E.2d at 328. Accordingly, we hold that the trial court did not err in finding the evidence of arson sufficient to support the jury verdict.",sufficiency of the evidence
+13,1861816,1,1,"On October 18, 1985, Clint Parker drove an automobile into the rear of another car stopped at an intersection, in which Sherri Leigh Odom, a minor, was a passenger, thereby causing a whiplash injury to her. Sherri Leigh's mother, Mrs. Brenda J. Odom, expended $1,516.49 for medical bills for Sherri Leigh. Sherri Leigh, by and through her mother, and Mrs. Odom individually, sued Parker for her personal injuries in the circuit court of Pearl River County. Parker's insurance carrier paid Mrs. Odom $2,500 on the claim to be credited against any judgment rendered against Parker. There was no question as to liability. Following trial the jury returned the following verdict: We, the Jury, find for the Plaintiff, Brenda J. Odom, and assess her damages at $1,516.49. We, the Jury, find for the Plaintiff, Sherri Leigh Odom, and assess her damages at Zero. The Odoms made a motion for a new trial on, among other things, inadequacy of damages. In his order overruling the motion for a new trial, the circuit judge noted that he could understand the jury's failure to award Sherri Leigh any sum of money, and furthermore observed that under this Court's many holdings a jury verdict should not be disturbed unless so out of line as to be against the great weight of the evidence and shows the verdict is the result of passion, prejudice and bias. The concluding paragraphs of the order then recited: The Court finds that to award the plaintiffs in this case the total sum of $2,500.00 would be a verdict that would be completely fair and reasonable under the evidence that was adduced at trial and upon which the jury based its verdict. 7. The Court finds that to grant an additur of $983.51 to Sherri Leigh Odom in addition to the judgment in favor of Brenda J. Odom in the amount of $1,516.49 would completely, adequately and fairly compensate the plaintiffs for the alleged injuries sustained in the incident in this cause. IT IS THEREFORE ORDERED AND ADJUDGED that an additur in the amount of $983.51 be and the same is hereby granted to Sherri Leigh Odom and the Motion for New Trial be and the same is hereby overruled. IT IS FURTHER ORDERED AND ADJUDGED that the $2,500.00 paid in advance of trial be and the same is hereby deemed to completely satisfy the judgment entered herein. The Odoms have appealed.",facts
+14,4586044,1,2,[1] The question of jurisdiction is a question of law. 1,standard of review
+15,1700188,1,1,"Pursuant to SDCL Ch. 36-8, the South Dakota State Board of Dentistry suspended the license of appellant to practice dentistry in South Dakota for an indefinite period upon a finding of unacceptable patient care due to his deliberate or negligent act or acts or failure to act. Appellant seeks reversal on the grounds that at his hearing, the Board of Dentistry had no expert testimony before it as to the appropriate standard of care required of dentists in areas similar to appellants and that he intentionally or negligently violated that standard. The Board argues that it has the expertise to make these findings, and therefore, expert testimony is unnecessary. We agree with appellant that such expert testimony is required in this case and reverse and remand.",issues
+16,846030,1,2,"Plaintiff worked for the city of Taylor as a data processing manager. Plaintiff testified by deposition that beginning in 1997, she was subjected to continual sexist remarks and derogatory treatment because of her age by defendant Frank Bacha, the former executive director of the Department of Public Works in the city of Taylor. On August 31, 1998, the city hired a much younger man, Randy Wittner, as the new director of information systems. Plaintiff testified that many of her prior job duties were shifted to Wittner, and that she suffered a $15,000 reduction in income because she no longer received overtime pay. [3] In late September 1998, Bacha went on leave, and then formally left his position on October 8, 1998. Bacha was apparently the subject of sexual harassment complaints from other women, and it was arranged for him to leave his job with the city of Taylor. After Bacha went on leave, plaintiff never saw him again. Plaintiff testified that she became uncertain about her status at work in the fall of 1998. She attempted to meet with defendant Gregory Pitoniak, mayor of the city of Taylor, about her concerns, but he avoided meeting with her. Plaintiff repeatedly requested an at will termination by the city, which would have allowed her to receive 30 weeks' severance pay, but she testified that Pitoniak refused to discuss her requests. Plaintiff went on vacation on November 24, 1998. While on vacation she decided that she could no longer work for the city. Plaintiff sent in her resignation on November 30, 1998, to be effective December 1, 1998. In her letter of resignation, plaintiff again requested that she be given severance pay. On November 30, 2001, plaintiff filed a complaint against Pitoniak and Bacha. [4] Plaintiff claimed quid pro quo sex discrimination, hostile work environment sex discrimination, age discrimination, breach of contract, and misrepresentation. Defendants filed a motion for summary disposition under MCR 2.116(C)(7), asserting that plaintiff's suit was barred by the three-year period of limitations in MCL 600.5805(9). At the February 21, 2003, hearing on the motion for summary disposition, plaintiff conceded that all her claims, including her claims for breach of contract and misrepresentation, were governed by the three-year period of limitations in MCL 600.5805(9). The trial court denied defendants' motion for summary disposition, concluding that plaintiff had three years from the last day that she worked, which was sometime between November 30, 1998, and December 3, 1998, to file suit. The Court of Appeals affirmed the order denying defendants' motion for summary disposition, finding that plaintiff's last day of work was November 30, 1998. [5] Defendants then filed an application for leave to appeal in this Court. We ordered oral argument on the application, instructing the parties to address the following questions: The parties shall submit supplemental briefs . . . addressing: (1) what actions, if any, were taken by the two defendants after October 8, 1998, that contributed to a discriminatory hostile work environment, so as to support a December 1, 1998, date of injury; (2) whether a December 1, 1998, accrual date for injury to plaintiff is sustainable for defendant Frank Bacha, where he left his employment with the city of Taylor on October 8, 1998; and (3) the impact, if any, of this Court's decision in Magee v. DaimlerChrysler Corp., 472 Mich. 108, 693 N.W.2d 166 (2005).[ [6] ]",facts
+17,2780606,1,3,"¶33. The instant matter hinges on whether bailiffs are deputies of the sheriff or court personnel. The language of Title 19, Chapter 25 is plain and unambiguous. The Legislature has empowered the sheriff with the authority to appoint, remove, and compensate bailiffs. Bailiffs appointed by the sheriff also have law enforcement duties, and thus, qualify as law enforcement officers. We hold that, under the Mississippi Constitution and statutory law, parts of the 1996 Order and the 2012 Order and Opinion exceed the power of the Hinds County Circuit Court and are therefore void. ¶34. VACATED IN PART AND RENDERED. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. 15",conclusion
+18,6334038,1,3,"[1] The verdict of the finder of fact on the issue of insanity will not be disturbed unless there is insufficient evidence to support such a finding. 2 [2,3] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. 3 We determine as a matter of law whether the record conclusively shows that (1) a defense counsel’s perform­ ance was deficient or (2) a defendant was or was not prejudiced by a defense counsel’s alleged deficient performance. 4 1 Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2020). 2 State v. Johnson, 308 Neb. 331, 953 N.W.2d 772 (2021); State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020); State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009); State v. McGhee, 274 Neb. 660, 742 N.W.2d 497 (2007). 3 State v. Collins, 307 Neb. 581, 950 N.W.2d 89 (2020); State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018). 4 Id. - 966 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. JOHN Cite as 310 Neb. 958",standard of review
+19,2537276,3,1,"In determining whether sufficient evidence supports the murder convictions, this Court views the evidence in the light most favorable to upholding the verdict. See Smith v. State, 7 So.3d 473, 509 (Fla.2009). We conclude that a rational trier of fact could have found the existence of the elements of first-degree murder (both as premeditated and felony murder) beyond a reasonable doubt. See Simpson v. State, 3 So.3d 1135, 1147 (Fla.), cert. denied, ___ U.S. ___, 130 S.Ct. 91, 175 L.Ed.2d 62 (2009). In summary, the evidence showed that Wade—with Jackson and Cole—planned to commit a robbery, and then Wade invited Nixon to join them in their criminal scheme. Together, the group planned the details of the robbery and murders, and Wade participated in obtaining the materials needed to implement the plan. On July 8, 2005, first Wade and Nixon entered the Sumners' home, and then Wade and Jackson obtained their financial account information. Subsequently, Wade and Nixon put the Sumners in the trunk of their own car and drove them to the gravesite in Georgia. There, Wade and Jackson placed the couple in the hole and buried them alive after obtaining the PINs to the couple's financial accounts. The group later obtained money from the Sumners' bank account, and Wade and Cole returned to the Sumners' home and stole their computer. Within days, authorities arrested Wade with Cole and Jackson in a South Carolina hotel where they found evidence linking all three to the crimes, including a check for $8,000 on the Sumners' account made out to Wade and dated July 8, 2005.",sufficiency of the evidence
+20,2781194,1,2,"“In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record.” Att’y Grievance Comm’n v. Bleecker, 414 Md. 147, 167, 994 A.2d 928, 940 (2010) (citations omitted). “We accept a hearing judge’s findings of fact unless we determine that they are clearly erroneous.” Att’y Grievance Comm’n v. Guida, 391 Md. 33, 50, 891 A.2d 1085, 1095 (2006). Pursuant to Maryland Rule 16-759(b)(1), we review the hearing judge’s proposed conclusions of law without deference. Thus, “the ultimate determination . . . as to an attorney’s alleged misconduct is reserved for this Court.” Att’y Grievance Comm’n v. Garfield, 369 Md. 85, 97, 797 A.2d 757, 764 (2002) (alteration in original) (citations omitted). “In that regard, we examine the record to ascertain whether there was sufficient evidence to support the hearing judge’s legal conclusions, by a clear and convincing standard of proof.” Att’y Grievance Comm’n v. Tanko, 427 Md. 15, 27–28, 45 A.3d 281, 288 (2012) (citation and internal quotation marks omitted). No Exceptions—Respondent’s Admissions Neither Cocco nor Bar Counsel notes any exceptions to the hearing judge’s findings of fact or conclusions of law.4 And, because Cocco filed no response to Bar Counsel’s 4 Although she filed no exceptions, Cocco did send a letter to the Court in October 2014, stating that she was “undergoing medical treatment for medical malpractice [that] left [her] with neurological issues.” Cocco accused the AGC of harassing her while she underwent medical treatment and contended that the confluence of her medical condition, that she has not practiced law in over two years, and that she had not renewed her license in the previous year should “make this matter moot until and if [she becomes] able to 6 requests for admissions, they are deemed admitted. Md. Rule 2-424(b); see Att’y Grievance Comm’n v. De La Paz, 418 Md. 534, 542, 16 A.3d 181, 186 (2011) (“[Attorney] failed to file an answer to Bar Counsel’s Petitions or respond to its Requests for Admissions of Facts and Genuineness of Documents; thus, the factual averments in those Petitions were deemed admitted.”). When an attorney has failed to respond to Bar Counsel’s requests for admissions and attempted to challenge a Rule 2-424(b) admission for the first time before this Court, we have denied the request. We have opined that an attorney “cannot challenge the sufficiency of the evidence supporting the findings of fact by advocating for the consideration of evidence that is contradictory to her admissions or not in the record.” Att’y Grievance Comm’n v. O’Leary, 433 Md. 2, 31, 69 A.3d 1121, 1138 (2013); see Murnan v. Hock, 274 Md. 528, 534, 335 A.2d 104, 108 (1975) (referring to unanswered requests deemed admitted as “conclusively binding”). Thus, we do not disturb the factual findings deemed admitted. As to any findings not deemed admitted due to Cocco’s failure to respond to the request for admissions, both parties were permitted to file “(1) exceptions to the findings and conclusions of the hearing judge and (2) recommendations concerning the appropriate disposition[.]” Md. Rule 16-758(b). Cocco filed no exceptions. Thus, we shall accept the hearing judge’s “findings of fact as established for the purpose of determining appropriate sanctions.” Md. Rule 16-759(b)(2)(A). practice.” In her Motion to Dismiss, filed after the Court held oral argument, Cocco raised many of the same unavailing arguments. Neither of these filings covered the allegations addressed in the hearing judge’s Findings of Fact and Conclusions of Law. Thus, we will deny her Motion to Dismiss. 7 CONCLUSIONS OF LAW We also agree with the hearing judge’s conclusions that Cocco violated MLRPC 3.4(c); 4.1(a)(1); 4.4(a); 8.1(b); and 8.4(a), (c), and (d). In knowingly presenting an invalid subpoena in contravention of Maryland Rule 2-510,5 Cocco violated MLRPC 3.4(c). See Att’y Grievance Comm’n v. Mixter, ___ Md. ___ (2015), slip op. at 104–05 (No. 7, September Term, 2013) (filed Feb. 2, 2015) (concluding attorney had violated MLRPC 3.4(c) when he disobeyed obligations under Maryland Rule 2-413(a)(2)). This misrepresentation was also a clear violation of MLRPC 4.1(a)(1) and 8.4(c). See id. at 108, 111–13 (concluding attorney had violated MLRPC 4.1(a)(1) and 8.4(c) when misrepresenting the enforceability of subpoenas to third parties). In presenting the invalid subpoena, Cocco threatened Walmart employees with personal suit, a clear violation of MLRPC 4.4(a). See id. at 109–11. During the course of Bar Counsel’s investigation, Cocco failed repeatedly to respond to the allegations that she had threatened third parties with an invalid subpoena. This was a violation of MLRPC 8.1(b). See Att’y Grievance Comm’n v. Weiers, 440 Md. 292, 306–09, 102 A.3d 332, 341–42 (2014) (concluding attorney had violated MLRPC 8.1(b) when although he had responded to the AGC, he “fail[ed] to cooperate readily and 5 Maryland Rule 2-510 prescribes the proper use, issuance, form, and service of subpoenas. As discussed supra, the subpoena with which Cocco threatened the Walmart employees was invalid because no lawsuit had been filed and it was not directed to any particular person. See infra for further discussion of Rule 2-510. 8 fully with Bar Counsel”).6 We also agree with the hearing judge’s conclusion that, overall, Cocco’s conduct was “prejudicial to the administration of justice” and, consequently, an 8.4(d) violation. See Mixter, slip op. at 113–15 (discussing MLRPC 8.4(d) and concluding that attorney had violated the Rule). Taken together, these violations also constitute a violation of MLRPC 8.4(a). Att’y Grievance Comm’n v. Van Nelson, 425 Md. 344, 363, 40 A.3d 1039, 1050 (2012) (“Rule 8.4(a) is violated when other Rules of Professional Conduct are breached.”). Sanction Bar Counsel recommends that Cocco be disbarred or, alternatively, placed on inactive status. In its Recommendation for Sanction, Bar Counsel highlights Cocco’s use of an invalid subpoena and her threats of suit to the Walmart employees if they did not comply. Bar Counsel also draws the Court’s attention to Cocco’s prior unrelated reprimand from the AGC in November 2010. This reprimand arose from a violation of MLRPC 8.4(d) for presenting “inappropriately provocative and inaccurate accusations of misconduct by an opposing counsel and [not following] appropriate procedures in pursuing her client’s interests.” As we recently discussed: In selecting a sanction, we are cognizant of the principle that attorney discipline proceedings are not instituted to punish an offending lawyer, but rather to protect the public and the 6 Without deciding whether Respondent’s statement to Bar Counsel that the subpoena was a valid means of obtaining pretrial discovery qualifies as a false statement of material fact or mere advocacy—and, thus, whether this statement constitutes a violation of MLRPC 8.1(a)—we conclude that the issue is not dispositive for our ultimate decision, as will be apparent, infra. 9 public’s confidence in the legal profession. Imposition of a sanction protects the public in two ways: through deterrence of the type of conduct which will not be tolerated, and by removing those unfit to continue in the practice of law from the rolls of those authorized to practice in this State. Our selection of an appropriate sanction is guided by the nature and gravity of the violation, the intent with which the violation was committed, and the particular circumstances surrounding each case . . . . Att’y Grievance Comm’n v. Park, 427 Md. 180, 195, 46 A.3d 1153, 1161 (2012) (internal citations and quotation marks omitted). When determining the appropriate sanction, we must also consider any mitigating factors. Att’y Grievance Comm’n v. Roberts, 394 Md. 137, 165, 904 A.2d 557, 574 (2006) (“The appropriate sanction depends on the facts and circumstances of each case, including any mitigating factors.” (citation omitted)). Here, the hearing judge found no mitigating factors, and there is no reason to upset that finding. See Att’y Grievance Comm’n v. West, 378 Md. 395, 411, 836 A.2d 588, 597 (2003) (“On review, we keep in mind that the findings of the trial judge are prima facie correct and will not be disturbed unless clearly erroneous.” (citation omitted)). Cocco committed an egregious misrepresentation when she used an invalid subpoena to threaten individual third parties into complying with her demand for information. “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Md. Rule 16-812, Preamble: A Lawyer’s Responsibilities (emphasis added). Despite a client’s expectation that an attorney be a zealous advocate, “[a] lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate 10 others.” Id. In knowingly presenting an invalid subpoena to Walmart employees and threatening them with personal liability for failure to comply, Cocco failed to meet the high bar of ethical behavior set for an attorney. See Att’y Grievance Comm’n v. Childress, 360 Md. 373, 381, 758 A.2d 117, 121 (2000) (“[A] lawyer, upon admission to the Bar, accepts and agrees to be held to a higher standard of rules of conduct that are significantly more stringent than the requirements of law held to society at large . . . .”). Cocco’s misrepresentation, threats, and intimidation depart from this model of conduct and were a grave transgression and an abuse of her role as an officer of the legal system. So, too, was Cocco’s conduct harmful to the public perception of lawyers in general. By her actions, Cocco posed a risk to the public perception of the integrity of attorneys in general, and specifically of those serving a subpoena. Such misconduct is particularly significant because lawyers, unlike other persons, may obtain signed blank subpoenas to be completed as they see fit prior to service. See Md. Rule 2-510(b).7 An intentional misrepresentation—particularly one of this magnitude and with the broader implications discussed supra—ordinarily will warrant disbarment: Unlike matters related to competency, diligence and the like, intentional dishonest conduct is closely entwined with the most important matters of basic character to such a degree as to 7 Maryland Rule 2-510(b) provides: On the request of a person entitled to the issuance of a subpoena, the clerk shall issue a completed subpoena, or provide a blank form of subpoena which shall be filled in and returned to the clerk to be signed and sealed before service. On the request of an attorney or other officer of the court entitled to the issuance of a subpoena, the clerk shall issue a subpoena signed and sealed but otherwise in blank, which shall be filled in before service. 11 make intentional dishonest conduct by a lawyer almost beyond excuse. Honesty and dishonesty are, or are not, present in an attorney’s character. Disbarment ordinarily should be the sanction for intentional dishonest conduct. Att’y Grievance Comm’n v. Vanderlinde, 364 Md. 376, 418, 773 A.2d 463, 488 (2001) (emphasis added). Here, Cocco committed a misrepresentation in the name of the court in an attempt to threaten and bully third parties who were unaware of the fallacious nature of the subpoena. In so doing, she seriously abused her trusted position as an officer of the court. Absent any mitigating factors, and with due consideration paid to the potential harm visited upon the public perception of lawyers in general, Cocco’s transgressions warrant the strictest sanction. Time and again, we have reached the conclusion that disbarment is the appropriate sanction for intentional misrepresentations, particularly when they cast disrepute upon the public perception of lawyers. See Att’y Grievance Comm’n v. Goodman, 381 Md. 480, 499, 850 A.2d 1157, 1168 (2004) (disbarring an attorney for intentional misrepresentation after reasoning that “[o]nly in the case of compelling extenuating circumstances will we even consider imposing less than the most severe sanction of disbarment in cases involving dishonesty and fraudulent conduct” (citation and internal quotation marks omitted)); Att’y Grievance Comm’n v. Pennington, 387 Md. 565, 596, 876 A.2d 642, 660 (2005) (disbarring attorney for, among other misrepresentations, “falsifying a supposed settlement of . . . claims with [an] insurer[ and] intentionally misrepresenting matters in negotiations with third-party health care providers”). Accordingly, we conclude that disbarment is the appropriate sanction. 12 IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761. JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST DARLENE M. COCCO IN THE SUM OF THESE COSTS. 13",standard of review
+21,852232,1,3,"We remand this cause to the trial court with instructions to enter a sentence consistent with this opinion. SHEPARD, C.J., and SULLIVAN, J., concur. DICKSON and BOEHM, JJ., dissent without separate opinion.",conclusion
+22,2632596,1,2,"[¶ 6] The background facts are not contested. PacifiCorp is a public utility operating in Wyoming. PacifiCorp supplies power to its retail customers through means of its own power generation facilities as well as purchasing power on the wholesale market. During the timeframe in issue, PacifiCorp also engaged in wholesale power market trading activities. During 2000-2001, PacifiCorp's generation capacity diminished, in part for reasons determined to be beyond its control. Most significantly for this appeal, one of PacifiCorp's electric generation plants, known as the Hunter No. 1 (hereinafter referred to simply as Hunter), suffered a catastrophic failure. The Hunter plant was offline for repairs between November 2000 and May 2001. In addition, because of an ongoing drought, power generated from PacifiCorp's hydroelectric plants also was below normal. [¶ 7] During the same timeframe, between the spring of 2000 and the spring of 2001, wholesale prices in the western power markets increased dramatically. [1] In order to meet its supply commitments, PacifiCorp was forced to purchase increased amounts of power from the volatile wholesale power market at unforeseeably high prices. The wholesale price PacifiCorp paid for power far exceeded the costs PacifiCorp would have incurred producing the same power from its Hunter plant. The wholesale price also far exceeded Wyoming retail rates. PacifiCorp covered these excess purchased power costs from May 2000 until the end of October 2000. [¶ 8] On November 1, 2000, PacifiCorp filed an application, which the Commission granted, to begin a deferred account. The deferred account allowed PacifiCorp to track costs that PacifiCorp wanted to preserve for later recovery. The costs PacifiCorp listed in the deferred account were the general net excess wholesale power costs PacifiCorp alleged it incurred in supplying Wyoming ratepayers. In granting PacifiCorp's application, the Commission expressly noted that the costs PacifiCorp would be allowed to list in the deferred account were for accounting purposes only. The determination of whether those costs would be recoverable would be determined at a later proceeding. [¶ 9] On October 3, 2001, the Commission denied an application filed by PacifiCorp seeking permission to immediately begin to pass the deferred increased power costs on to its Wyoming retail ratepayers. PacifiCorp also attempted to include in the deferred account net excess power costs it alleged it incurred in purchasing power on the wholesale market to replace the power lost when the Hunter plant failed. The Commission determined that PacifiCorp had not given sufficient notice of its intent to include costs incurred as a result of the Hunter failure and denied PacifiCorp's attempt to include the Hunter costs in the deferred account. The Commission also determined that there was no present need justifying an immediate pass-on of the excess power costs in the deferred account to PacifiCorp Wyoming's retail customers. The Commission ordered a full hearing regarding PacifiCorp's requested rate increase to cover its excess power costs. Because the Commission did not allow the inclusion of the Hunter costs, PacifiCorp, wanting all issues to be brought before the Commission together, dismissed its then pending application. [¶ 10] On May 7, 2002, PacifiCorp filed the application for a rate increase that gives rise to the instant appeal. PacifiCorp sought a rate increase totaling approximately $122 million. PacifiCorp broke the application down into three interrelated parts: 1) an increase of $30.7 million in base rates; 2) an energy surcharge to recover $60.3 million in net power costs that were listed in the deferred account (excess power costs); and 3) an energy surcharge to recover $30.705 million in net power costs triggered by the outage of the Hunter generation plant (Hunter costs). PacifiCorp structured its application as an application for a general rate increase and two distinct riders, one for the general excess power costs and one for the Hunter costs. Ultimately, after a full hearing on all issues, the Commission granted PacifiCorp a general rate increase of approximately $8.8 million. The Commission did not allow any surcharge for the recovery of past extraordinary costs. [¶ 11] PacifiCorp appealed to the district court. The district court certified this appeal to this Court pursuant to W.R.A.P. 12.09(b). PacifiCorp specifically is not appealing the amount of the general rate increase approved by the Commission. PacifiCorp is only appealing the Commission's decision to deny relief on the requested surcharges.",facts
+23,2631878,1,1,"¶ 2 We recite the facts from the record in the light most favorable to the jury's verdict. State v. Litherland, 2000 UT 76, ¶ 2, 12 P.3d 92. The dead body of Edward Livsey was discovered by two hikers in Emigration Canyon in August 1997. His legs and hands were bound together with shoelaces. A red bandana was tied around his neck, and the State medical examiner concluded that he died from asphyxia. The victim also had a bruise on the back of his neck, which the medical examiner said could have been from a blow that rendered him unconscious. ¶ 3 On the day before the victim's body was found, the victim and defendant drove in the victim's car to the train station near downtown Salt Lake City and picked up Roberto Sanchez-Martinez (Martinez), a Mexican immigrant, who was looking for gardening work. Defendant asked Martinez if he wanted to do some work for them. Martinez said yes and got in the car. Because Martinez did not speak English, he spoke only to defendant, and did not speak directly with the victim. Instead of taking Martinez to a place to work, the three men drove around Salt Lake City, drinking beer. ¶ 4 After they had driven around for awhile, defendant told Martinez that they were going to a party in the mountains. Martinez asked to be driven back to the homeless shelter, but defendant told him not to worry because he would be paid for a whole day's work. Sometime before two o'clock that afternoon, the three men drove up Emigration Canyon. The victim parked the car, and all three men got out. Defendant and the victim engaged in anal intercourse and then returned to the car, where Martinez was waiting. ¶ 5 The three men then got back into the car and started down the canyon. Less than a mile down the road, defendant pulled out a knife and ordered the victim to stop the car. When the victim pulled over, defendant told both men to get out of the car. Outside the car, defendant and the victim began arguing. Martinez told defendant that he needed to relieve himself, and he walked a few feet away to do so. When Martinez returned, he heard the victim scream. Defendant struck the victim several times in the back of his neck with his fist, while still clutching the knife in his fist. The victim fell to the ground and did not move. Defendant choked the victim with his hands. Defendant told Martinez that if he tried to interfere, he would kill him. ¶ 6 Martinez ran to the side of the road to summon help, but defendant ran after him and again threatened to kill him. Ultimately, defendant removed the victim's shoelaces from his shoes and tied his hands and feet together. Defendant also tied a red bandana he had with him tightly around the victim's neck. Defendant searched the victim's pockets and took the keys to the victim's car. Defendant ordered Martinez back into the car, threatening him with the knife. ¶ 7 As defendant and Martinez were driving back into Salt Lake City, Martinez asked defendant to let him out. Defendant refused and told Martinez that he was coming with him. Defendant drove first to Mesquite, Nevada, where he put all of the victim's belongings into a black bag from the trunk of the car and threw the bag into the garbage. Defendant then drove to Las Vegas, Nevada. ¶ 8 When they arrived in Las Vegas, Martinez and defendant stayed in a trailer with one of defendant's friends. The next day, Martinez went with defendant and his friends to a nearby lake, and then to a casino. Defendant and his friends watched Martinez the entire time, to make sure he did not get away. ¶ 9 On Wednesday morning, while driving the victim's car with Martinez and two of defendant's friends, defendant was stopped by North Las Vegas police officers. The police checked the license plate on the car, and upon discovering that it was stolen, arrested all four occupants. The North Las Vegas police then notified the Salt Lake City Sheriff's Department. ¶ 10 Detectives Forbes and Chidester flew from Salt Lake City to Las Vegas to interview the suspects. The detectives interviewed defendant twice within a twenty-four hour period. Each time defendant was given Miranda warnings, and each time defendant waived his rights and agreed to speak with the detectives. Both interviews were conducted using an interpreter, who translated the detectives' questions to defendant, and then translated defendant's answers back to the detectives. During both interviews, defendant maintained that he did not kill the victim. Defendant told the police that he was not in Salt Lake City at the time of the murder and had not been for four or five months. He said that he came to the United States from Mexico about two weeks before. Defendant told the police that he bought the victim's car from a man in a bar in Las Vegas for $300. When asked where he got the money to buy the car, defendant said that he had earned the money working in Phoenix, Arizona, but had spent the last week in Las Vegas. ¶ 11 At trial, the jury heard testimony from Martinez describing the events he witnessed before, during, and after the victim's death. Defendant did not testify, but his explanation of how he had acquired possession of the victim's car and his claim of innocence in the killing of the victim were admitted into evidence through the testimony of Detective Forbes. Physical evidence, including a Utah bus pass, a key ring, and defendant's fingerprints taken from the victim's car, was also admitted. The jury convicted defendant of murder and theft. ¶ 12 On appeal, defendant raises numerous claims. He argues that (1) trial counsel provided ineffective assistance by failing to object to Detective Forbes's testimony and the admission of the physical evidence; (2) the trial court committed plain error in admitting Detective Forbes's testimony and the physical evidence; (3) the trial court erred in refusing to give a requested jury instruction; and (4) the cumulative effect of the errors committed by the trial court warrants reversal, even if the individual errors standing alone do not.",facts
+24,1365760,1,3,"Did the trial court err in concluding JUA breached its covenant of good faith and fair dealing by including Doe in the settlement apportionment? JUA argues the trial court erred when it determined JUA breached its covenant of good faith and fair dealing. We agree. We have held that there is an implied covenant of good faith and fair dealing in every insurance contract `that neither party will do anything to impair the other's rights to receive benefits under the contract.' ... [I]f an insured can demonstrate bad faith or unreasonable action by the insurer in processing a claim under their mutually binding insurance contract, he can recover consequential damages in a tort action.... `Implicit in the holding is the extension of a duty of good faith and fair dealing in the performance of all obligations undertaken by the insurer for the insured.' Tadlock Painting Co. v. Maryland Cas. Co., 322 S.C. 498, 500-01, 473 S.E.2d 52, 53 (1996) (internal citations omitted). Bad faith is a knowing failure on the part of the insurer to exercise an honest and informed judgment in processing a claim.... [A]n insurer acts in bad faith where there is no reasonable basis to support the insurer's decision. American Fire & Cas. Co. v. Johnson, 332 S.C. 307, 311, 504 S.E.2d 356, 358 (Ct.App.1998); see also Cock-N-Bull Steak House v. Generali Ins. Co., 321 S.C. 1, 466 S.E.2d 727 (1996). Furthermore, a liability insurer owes its insured a duty to settle a personal injury claim covered by the policy, if settlement is the reasonable thing to do. Trotter v. State Farm Mut. Auto. Ins. Co., 297 S.C. 465, 475, 377 S.E.2d 343, 349 (Ct.App.1988). An insurer who unreasonably refuses or fails to settle a covered claim within the policy limits is liable to the insured for the entire amount of the judgment obtained against the insured regardless of the limits contained in the policy. Id. The contract of insurance between Doe and JUA provides in part that JUA shall have the right and duty to defend in his name and behalf any suit against the Insured alleging damages, even if such suit is groundless, false or fraudulent, but [JUA] shall have the right to make such investigation and settlement of any claim or suit as may be deemed expedient [5] by [JUA]. The trial court determined that JUA breached its covenant of good faith—not by refusing to settle—but by unreasonably charging Doe's policy with a portion of the settlement, or more specifically, by not providing Doe some avenue for input regarding JUA's apportionment decision. Although our research reveals no cases addressing the narrow issue raised by Doe, we are guided by a number of cases addressing an insurer's duty to its insured when settling a liability claim against the insured. In Babic v. Physicians Protective Trust Fund, 738 So.2d 442 (Fla.Dist.Ct.App.1999), the insured sued his insurer after the insurer settled a medical malpractice action brought against four of its insured physicians. After reaching the settlement agreement, the insurer charged the entire settlement amount against Babic's policy. It made this decision in light of evidence that Babic was more at fault than the doctors released. As required by federal and state law, the insurer reported Babic to the National Practitioner Data Bank, as well as to a state data bank. The Florida Court of Appeals observed that the plaintiff does not contend that the defendants have falsely accused him of medical malpractice, he is simply dissatisfied with the allocation of fault and wants to spread the blame. Id. at 446. The court recognized that any offer of admission of liability, settlement offer, or offer of judgment made by an insurer or self-insurer shall be made in good faith and in the best interests of the insured. Id. at 445. Notwithstanding this obligation, absent unusual circumstances (not applicable here) a cause of action for breach of a good faith duty owing to an insured will not lie for failure to defend or investigate a claim when the insurer has settled the claim for an amount within the limits of the insurance policy. Id. In support of its decision, the Babic court cited Shuster v. South Broward Hosp. Dist. Physician' Prof. Liab. Ins. Trust, 591 So.2d 174 (Fla.1992). In that case Shuster challenged his liability carrier's decision to settle a number of claims against him. He alleged that the insurer failed to investigate the claims, and despite his protestations, settled the suits for amounts substantially in excess of reasonable settlement values. The contract at issue in Shuster contained an endorsement, similar to the contract in this case, giving the insurer the authority to make such investigation and such settlement of any claim or suit as it deems expedient. Id. at 176. According to the court, [t]he language of th[is] provision is clear and the insured was put on notice that the agreement granted the insurer the exclusive authority to control settlement and to be guided by its own self-interest when settling the claim for amounts within the policy limits. The obvious intent behind placing the provision in the agreement was to grant the insurer the authority to decide whether to settle or defend the claim based on its own self-interest, and this authority includes settling for the nuisance value of the claim. Therefore, we interpret the provision as granting the insurer the discretion to settle cases for amounts within the policy limits, regardless of whether the claim is frivolous or not. The parties have expressly contracted with respect to the subject matter and this Court declines to rewrite the policy when the insurer merely exercises its rights under the agreement.... We recognize that every contract requires the good faith performance of its provisions. However, the act of settling a claim either for nuisance value, or for an amount lower than the actual value of the suit, is not bad faith performance of the right to settle as one `deems expedient.' Id. at 176-77 (internal citations omitted). Other courts have reached similar conclusions where an insured has challenged an insurer's decision to settle a claim. See generally Mitchum v. Hudgens, 533 So.2d 194 (Ala.1988) (insurer's exclusive right to settle claims against its insured imposes a duty raised by law to observe ordinary diligence in exercising that right; this duty does not compel the insurer to seek the insured's permission before settling a claim); Frankel v. St. Paul Fire & Marine Ins. Co., 334 N.J.Super. 353, 759A.2d 869 (App.Div.2000) (bad judgment on the part of the insurer does not constitute bad faith given the insurer's broad discretion in disposing of third party claims); Cash v. State Farm Mut. Auto. Ins. Co., 137 N.C.App. 192, 528 S.E.2d 372 (2000) (recognizing that an insurer, when settling claims with a third party, acts in its own self-interest); Marginian v. Allstate Ins. Co., 18 Ohio St.3d 345, 481 N.E.2d 600 (1985) (where a contract of insurance provides that the insurer may, as it deems appropriate, settle any claim or action brought against its insured, a cause of action alleging a breach of the insurer's duty of good faith will not lie where the insurer has settled such claim within the monetary limits of the policy). Doe does not challenge JUA's decision to settle the claims against him, only its decision to charge a portion of the settlement against his policy. We hold that such decisions are subject to the covenant of good faith and fair dealing, and that in order to prevail, the party challenging these decisions must show bad faith on the part of the insurer. See Tadlock Painting Co., supra . To hold otherwise would impose upon an insurer a potentially greater obligation when determining how a settlement is to be apportioned among multiple insureds than the obligation imposed by law when deciding to settle the case initially. The evidence presented below does not support a finding of bad faith on the part of JUA. The contract unambiguously grants JUA the authority to settle all claims arising under the policy, even claims that are groundless or fraudulent. The law imposes upon JUA a duty to settle within policy limits when settlement is reasonable. Here, JUA was faced with the testimony of CRNA Wood, an eyewitness, trained in the healthcare profession, attesting to Doe's negligence. JUA requested an opinion from counsel whether § 15-1-310 would effectively shield a similarly situated physician from liability. Counsel offered his opinion that Doe's § 15-1-310 defense would be dependent upon the jury's view of the facts. Under these circumstances, JUA's decisions to settle the case on behalf of Doe and to charge a portion of the settlement against his policy were eminently reasonable. Because Doe has not shown that JUA's decision was made in bad faith, we reverse the trial court's determination that JUA breached the covenant of good faith and fair dealing. [6] See American Fire & Cas. Co. v. Johnson, supra . Based on our finding that JUA did not act in bad faith, we affirm the trial court's order denying Doe attorney's fees.",issues
+25,1791143,1,1,"Section 25-5-81(e)(2), Ala.Code 1975, a part of the Act, states that if an appellate court is reviewing pure findings of fact in a workers' compensation case, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence. Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved. West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989), quoted in Ex parte Northam, 689 So.2d 854, 856 (Ala.1996); see Ala. Code 1975, § 12-21-12(d). As this Court explained in Ex parte Golden Poultry Co., Inc., 772 So.2d 1175 (Ala.2000), the Court of Civil Appeals in a workers' compensation case is authorized to determine whether the trial court's decision is supported by sufficient evidence [i.e., substantial evidence], but it is not authorized to independently weigh the evidence. 772 So.2d at 1177 (citing Ex parte Alabama Ins. Guar. Ass'n, 667 So.2d 97, 99 (Ala. 1995)) (emphasis and bracketed language added).",standard of review
+26,1835915,1,2,"¶ 18 This case was determined on cross summary judgment motions on undisputed facts. Therefore, we review the issues of law decided by the circuit court de novo. See LaCount v. Gen. Cas. Co. of Wis., 2006 WI 14, ¶ 20, 288 Wis.2d 358, 709 N.W.2d 418. Restrictive covenants not to compete are contracts, the interpretation of which is a matter of law also reviewed de novo. NBZ, Inc. v. Pilarski, 185 Wis.2d 827, 836, 520 N.W.2d 93 (Ct.App. 1994). This case further requires us to interpret and apply Wis. Stat. § 103.465, which governs the enforceability and divisibility of restrictive covenants. We interpret statutes independently, but benefit from the analysis of the previous courts. Spiegelberg v. State, 2006 WI 75, ¶ 8, 291 Wis.2d 601, 717 N.W.2d 641.",standard of review
+27,852312,1,5,"We affirm the conviction and sentence for murder. DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.",conclusion
+28,4528180,1,1,"This is an appeal from a judgment of the district court for Douglas County, confirming an arbitration award of $2,997,031 under the Federal Arbitration Act (FAA)1 and awarding attorney fees as a sanction under Neb. Rev. Stat. § 25-824 (Reissue 2016).",introduction
+29,2408478,1,1,"We explained our standard of review for directed-verdict motions in Williams v. State, 325 Ark. 432, 436, 930 S.W.2d 297 (1996): This court treats the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. On appellate review, it is only necessary for this court to ascertain that evidence which is most favorable to appellee, and it is permissible to consider only that evidence which supports the guilty verdict See also Choate v. State, 325 Ark. 251, 254-55, 925 S.W.2d 409, 411 (1996) (quoting King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996)) (other citations omitted). To sustain a conviction for first-degree murder, the State was required to prove that the appellant purposely caused the death of June Barnes. See Ark.Code § 5-10-102(a)(2). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result[.] Ark.Code Ann. § 5-2-202(1) (Repl.1993). A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Williams, 325 Ark. at 437, 930 S.W.2d 297. The intent necessary to sustain a conviction for first-degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds. Id.; citing Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996). Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Williams, 325 Ark. at 437, 930 S.W.2d 297; Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). In order for circumstantial evidence alone to constitute substantial evidence, however, it must exclude every other reasonable hypothesis consistent with innocence. Williams, 325 Ark. at 437, 930 S.W.2d 297; Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). Once the evidence is determined to be sufficient to go to the jury, the question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the jury to decide. Id. In the present case, the jury could have easily inferred from the numerous blunt force injuries to the victim's skull, as well as from the autopsy evidence that she was strangled, that appellant acted with the purpose to cause the victim's death. The jury also heard evidence that appellant took the victim's body to a dump site, set it on fire, and then left. As attempts to cover up a crime are properly admissible, see Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), the jury could have properly considered this evidence as proof of a purposeful mental state. Moreover, it was within the jury's province to believe or disbelieve appellant's testimony. When considering these circumstances, the jury could have reasonably inferred that appellant acted with the purpose of causing the victim's death. See Williams, supra . Thus, we cannot say that the trial court erred in denying appellant's motion for directed verdict.",sufficiency of the evidence
+30,1383175,1,1,"We are first concerned with the jurisdiction over the subject matter of the action. Jurisdiction over the subject matter — the underlying obligation — (i.e., the debt as defined in § 12-1571, subsec. A, par. 2, A.R.S.) is the power to hear and determine cases of the general class to which the particular proceedings belong, i.e., the abstract question. Arizona Public Service Co. v. Southern Union Gas Co., 76 Ariz. 373, 265 P.2d 435 (1953); Tube City Min. & Mill Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1915). The Superior Court had jurisdiction over the subject matter of this case and therefore could issue the writ of garnishment. Art. 6, § 6, Arizona Constitution, A.R.S., § 12-123, subsec. B; 6 Am.Jur.2d, Attachment & Garnishment, § 17, p. 573. Having jurisdiction over the subject matter of the lawsuit does not mean, however, that the court had personal jurisdiction over the defendants in this case. Pursuant to filing the complaint, summons was personally served on both defendants in California pursuant to the Rules of Civil Procedure, 16 A.R.S. As pertinent hereto, Rule 4(e) (1) reads:    When a defendant is a non-resident of the state    summons shall be issued as in other cases and service may be made in accordance with Sections 4(e) (2) or 4(e) (3) of this Rule. Rule 4(e) (2) is, of course, the longarm rule. However, not all service accomplished pursuant thereto involves in personam longarm jurisdiction or the minimum contacts theory embodied therein, and absent reasons for application of longarm personal jurisdiction (See Liston v. Butler, 4 Ariz. App. 460, 421 P.2d 542 [1967] and Phillips v. Anchor Hocking Glass Corp., 100 Ariz. 251, 413 P.2d 732 [1966]), the rule in Arizona is that there must be personal service within the State to support in personam jurisdiction and judgment: In the landmark case of Pennoyer v. Neff [5 Otto 714], 95 U.S. 714, 24 L.Ed. 565, 569, the U.S. Supreme Court made it very clear that jurisdiction is either in personam or in rem; that in order to obtain a judgment in personam it is necessary to serve the defendant within the state; that where such service is not feasible, only a judgment in rem may be obtained; that to obtain a judgment in rem, the res must be found within the state, must be brought within the court's jurisdiction by attachment, garnishment, or some such proceeding directly against the property; and that in such case the `defendant is not personally bound by the judgment beyond the property in question.' Pennoyer's impact has been circumscribed in some ways by International Shoe Company v. Washington, Office of Unemployment Comp. etc., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 and other cases on the subject, but the above principles are still valid and form the very basis of all courts' jurisdictions. O'Leary v. Superior Court of Gila County, 104 Ariz. 308, 312, 452 P.2d 101, 105 (1969). As to the garnishment itself, the res, and the person of the garnishee, the appellant filed an affidavit stating facts sufficient to authorize issuance of a writ of garnishment upon garnishee — The Arizona Bank — pursuant to 4 A.R.S. § 12-1573. Thereupon the writ was served personally upon the garnishee in Maricopa County and jurisdiction vested. As we have previously noted: From the above it is evident and conclusive that from the date of service of the writ of garnishment any amount due or found to be due from the garnishee to the defendant is in control of the court   . Gillespie Land & Irrigation Co. v. Jones, 63 Ariz. 535, 542, 164 P.2d 456, 459 (1945). Thus, when the garnishee's answer disclosed an admitted indebtedness to defendants, Pomona and Testo, the court acquired, from the date of the service of the writ, jurisdiction over the res of the account. There being jurisdiction over the subject matter and over the amount garnisheed but no personal jurisdiction over the sheed but no personal jurisdiction over the defendants, we must then determine whether the court in Arizona has jurisdiction in an action wherein we have a foreign plaintiff, foreign defendants, foreign debt, and property in the State subject to garnishment or attachment. Upon occasion garnishment proceedings have been described as in rem, however: While, properly speaking, actions or proceedings in rem are against the thing itself, and for the purpose of disposing thereof without reference to the title of the particular claimants, the term has in a larger and broader sense been applied to certain actions and proceedings between parties, where the object is to reach and dispose of property owned by them or in which they have an interest; but, as these are not strictly in rem, they have frequently and more properly been termed quasi in rem, or in the nature of actions or proceedings in rem.  Hook v. Hoffman, 16 Ariz. 540, 557, 147 P. 722, 729 (1915). By its terms, such is the nature of a § 12-1571, subsec. A, par. 2 garnishment action, where the garnishment is originally ancillary to the main action. See Porter v. Duke, 34 Ariz. 217, 270 P. 625 (1928); 6 Am.Jur.2d, Attachment & Garnishment, § 17, p. 573. As we have previously noted: The effect of the writ of garnishment is, therefore, to impound any asset or property of defendant which is found in the hands of the garnishee pending the resolution of the merits of the garnisher's claim. The writ itself constitutes, at most, a lis pendens notice that a right to perfect a lien on the garnisheed property exists, but such perfection must await judicial action. Kuffel v. United States, 103 Ariz. 321, 325, 441 P.2d 771, 775 (1968). We hold, therefore, that the service of process in the instant case was sufficient and operated to provide all the requisites for proceeding quasi in rem. When a writ of garnishment is served in aid of the principle cause, as in this case, it operates to fulfill the due process notice requirement. (See Porter v. Duke, supra, 34 Ariz. at 229, 270 P. 625.) It has been stated: Clearly, personal service of process on a non-resident principal defendant is not required to gain quasi in rem jurisdiction over his property within this State by way of garnishment. Payton v. Swanson (Fla.App.), 175 So.2d 48, 49 (1965). See Annotation, 14 A.L.R.2d 420; Aero Spray, Incorporated v. Ace Flying Service, Inc., 139 Colo. 249, 338 P.2d 275 (1959). The motion to dismiss on jurisdictional grounds was improperly granted. FORUM NON CONVENIENS Appellee argues even if the Arizona court had jurisdiction it should refrain under the doctrine of forum non conveniens as the action could have been tried more appropriately and justly in California. While from the record we see no special circumstances warranting applicability of such extraordinary action by the trial court in this cause, it may be that certain circumstances for applicability of the doctrine do exist. In any event, that determination cannot be made on a factually incomplete record. It should be remembered that since it is plaintiff's right to choose the forum, his choice should not be disturbed except upon adequate showing. Appellee has not made such a showing in this case. UNCONSTITUTIONALITY Appellee urges that we declare prejudgment garnishment in this case unconstitutional as a deprivation of due process pursuant to Snidach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). We decline to so hold. This court has previously held that the Snidach holding was limited to wages. Termplan, Inc. v. Superior Court of Maricopa Co., 105 Ariz. 270, 463 P.2d 68 (1969). Thus:    [W]hile this case involves a prejudgment garnishment proceeding, the funds in possession of the garnishees are not wages. Thus, the Constitutional questions raised in Snidach v. Family Finance Corp. [citations omitted] are not involved.   . Andrew Brown Company v. Painters Warehouse, Inc., 11 Ariz. App. 571, 572, 466 P.2d 790, 791 (1970). There exist proper grounds for distinguishing between depriving a wage earner of his present cash flow by prejudgment garnishment and impounding reserve assets of a business enterprise. The latter's entity rights are adequately protected by the right to replevy under § 12-1578, subsec. B, A.R.S.; the counter-claim procedures for wrongful garnishment under De Wulf v. Bissell, 83 Ariz. 68, 316 P.2d 492 (1957); and, the ultimate hearing on the merits. Judgment reversed. With the issuance of the mandate of this court, the order of the trial court dismissing the plaintiff's complaint and quashing the writ of garnishment is reversed and the complaint and writ reinstated. STRUCKMEYER, C.J., and HAYS, V.C.J., concur.",jurisdiction
+31,1179748,1,1,"[1] Under the priority of action rule, the trial court that first obtains jurisdiction is the court in which this matter will normally proceed. See Mutual of Enumclaw Ins. Co. v. Human Rights Comm'n, 39 Wn. App. 213, 216, 692 P.2d 882 (1984). SSI contends the court that acquires jurisdiction is the court in the county in which both filing and service are first completed. We disagree. The applicable court rule and statute are unambiguous. Both provide that a civil action is commenced by filing or by service of the summons and complaint. CR 3; RCW 4.28.020. Once an action is commenced, the court is deemed to have acquired jurisdiction and to have control of all subsequent proceedings. RCW 4.28.020. CR 3 clearly and unmistakably provides that an action is commenced today by service of a summons or by the filing of a complaint. Curtis Lumber Co. v. Sortor, 83 Wn.2d 764, 767, 522 P.2d 822 (1974). RCW 4.28.020 clearly provides that the court is deemed to have acquired jurisdiction from the time an action is commenced. Therefore, the King County court acquired jurisdiction over this matter when the County filed its complaint. The fact that SSI completed both service and filing first does not confer jurisdiction on the Kittitas County court. See State ex rel. Uland v. Uland, 36 Wn.2d 176, 216 P.2d 756 (1950).",jurisdiction
+32,855368,1,1,"¶1 This case arises out of prolonged and complicated divorce proceedings. Dennis Goggin (Dennis) and Tamara Goggin (Tammy) separated in 2005, ending a marriage that had lasted approximately ten years. The couple has spent nearly the same number of years litigating their divorce. Throughout the process, Dennis has engaged in a variety of contemptuous and obstructionist acts and has repeatedly violated the court’s discovery orders. With this behavior, he successfully undermined the divorce court’s ability to obtain a complete and accurate assessment of the marital assets. ¶2 Ultimately, the divorce court awarded Tammy all of her fees and costs related to appointing a receiver and hiring expert forensic accountants. The court also awarded all of her attorney fees GOGGIN v. GOGGIN Opinion of the Court and out-of-pocket expenses. Further, the court awarded Tammy a disproportionate amount of the marital assets. Specifically, the court (A) credited to Tammy the full amount of the assets Dennis dissipated; (B) declined to award Dennis a credit or setoff for the value of separate property he contributed to the purchase and development of the marital residential property; and (C) declined to award him a credit or setoff for the value of managerial efforts he contributed to his businesses while the divorce was pending. Dennis appealed. ¶3 We conclude that the divorce court did not abuse its discretion1 in awarding Tammy all of the fees and costs she incurred related to the receiver and the forensic accountants. But we conclude that the court exceeded its discretion to the extent that it awarded Tammy attorney fees and out-of-pocket costs in excess of the amount Dennis actually caused her to incur. Similarly, we conclude that the court exceeded its discretion to the extent that any portion of its award was based upon its finding that Dennis had entered into, and breached, an oral contract with Tammy regarding the business they started. ¶4 With respect to the divorce court’s distribution of the marital property, we conclude that the court exceeded its discretion in awarding Tammy the full amount of dissipated assets without first estimating the maximum amount of assets that Dennis may have dissipated. Further, we conclude that the court erred in declining to consider whether Dennis was entitled to a credit or setoff for the separate property he contributed to the purchase and development of the marital residential property. Indeed, we conclude that the divorce court may have misunderstood the effect of the district court’s prior ruling in this case. But because it properly applied the doctrine of unclean hands, we conclude that the court 1 Appellate courts reviewing a district court’s use of its discretionary authority commonly use the phrase “abuse of discretion” to describe acts that exceeded that authority. But we note that this phrase may sometimes suggest a more pejorative connotation than is intended. Accordingly, in this opinion, we employ a variety of similar phrases in our analysis, such as considering whether the court “overstepped the bounds of its discretion,” “exceeded its discretion,” or whether the act was “an appropriate exercise of its discretionary authority.” For precedential purposes, however, we note that these phrases are synonymous with “abuse of discretion.” 2 Cite as: 2013 UT 16 Opinion of the Court properly exercised its discretionary authority when it declined to award Dennis a setoff or credit for his managerial contributions to his businesses.",introduction
+33,2632256,1,9,"¶ 22 We hold that 11 O.S.2001, § 22-159 is a general law and is not a part of the Public Utility Bond Act. We determine 11 O.S.2001, § 22-159 to be constitutional, and therefore hold that the City of Oklahoma City municipal ordinance No. 21,805 and the City of Lawton municipal ordinance No. 99-29 are authorized sales tax proposals that rely on a constitutional statute and serve a valid public purpose. We conclude that the Oklahoma City Metropolitan Area Public Schools Trust is a lawful entity which performs a lawful and constitutional purpose for the City of Oklahoma City. Finally, we determine that all of Petitioners' arguments lack merit.",conclusion
+34,2831059,1,8,"This is a petition for review of an order finding the Petitioner in contempt of court for having respectfully refused to comply with an order entered on the basis of the lower court's finding that the petitioner may not invoke his rights under the Fifth Amendment to the United States Constitution. Accordingly, the order in the court below is final under Pa. R.A.P. 341. Moreover and in the alternative,orders overruling claims of privilege and requiring disclosure are immediately appealable under Pa. R.A.P. 313. Commonwealth v. Harris, 32 A.3d 243, 251 (2011)(reaffirming Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547(1999)). Pennsylvania Rule of Appellate Procedure 313(a) provides that [a]n appeal may be taken as of right from a collateral order of.. . [a] lower court. This petition is timely as it is filed within ten days of both the lower court's contempt order, which was entered on January 12, 2015. See Pa. R.A.P. 1512(b)(3)(requiring the filing of a petition for review within ten days of the entry of a grand jury order). Accordingly, this Court has jurisdiction over this Petition.",jurisdiction
+35,2643622,1,1,"Matthew A. Fox appeals the denial of his motion for postconviction relief without an evidentiary hearing. He asserted three claims of ineffective assistance of counsel, two at the trial stage and one at the appellate stage. Because (1) the jury instructions, taken as a whole, correctly stated the elements of the crime, (2) Fox failed to identify an expert who would have opined differently on Fox’s sanity, and (3) the arguments omitted by appellate counsel lacked any merit, Fox failed to make any factual allegations which, if proved, constitute an infringement of his rights under the Nebraska or federal Constitution.",introduction
+36,1320451,1,1,"The appellant, Richard Malfregeot, was employed by the Harrison County Board of Education as a teacher and coach at Bridgeport Middle School (hereinafter, BMS) during the 2005-2006 academic year. During that year, the appellant met L.L., [2] a thirteen-year-old female, while traveling on a school bus to a BMS football game. The appellant, seated directly behind L.L. and her best friend C.E., engaged L.L. in conversation. Following the bus trip, the appellant would often see L.L. at BMS and would talk and joke with her. As the academic year progressed, contact between the appellant and L.L. significantly increased as the appellant began to speak with her at BMS multiple times per day. Many of these encounters occurred at L.L.'s locker. According to the appellant, L.L.'s locker was located within an area he was responsible for monitoring as a part of his duties as a teacher. However, L.L. testified at the appellant's trial that BMS is divided into different sections or pods and that her locker was located in pod 8-2, while the appellant's classroom was located in pod 8-1. L.L. stated that in spite of the fact that the appellant's classroom was in a different part of the school, that between classes when students went to their lockers, the appellant would be standing within five feet of her locker waiting to talk with her on a daily basis. In addition, L.L. and other witnesses testified that other teachers did not visit students' lockers on a daily basis. During these encounters, the appellant did not discuss academic or school-related topics with L.L. Instead, the appellant discussed personal matters such as L.L.'s appearance and very often told L.L. how lucky her boyfriend was to have her as a girlfriend. Trial testimony also revealed that the discussion of such personal matters between teachers and students at BMS was an uncommon occurrence. L.L. further testified that the appellant would walk around the school in the morning to exercise and would often invite her to walk with him. While L.L. repeatedly denied the invitation, the record does not indicate that the appellant extended a similar invitation to any other student. L.L. also stated that the appellant stopped by her lunch table three or four times per week, every week, to talk with her and the other students who were present. In addition, she said that the appellant would on occasion stop by her gym class to visit with her. The contact between the appellant and L.L. was not limited to verbal communication. The appellant acknowledged that on several occasions he placed his arm around L.L. and had held her hand. L.L. testified that such physical contact made her uncomfortable and that she would shrug her shoulders in an attempt to discourage the appellant from touching her. She further testified that on one occasion the appellant rubbed her shoulders and played with her hair while she sat in a computer lab at the school. She said that she did not tell the appellant that his conduct made her feel uncomfortable because he was a teacher, an authority figure, and that she felt embarrassed and intimidated by the age difference between the two. Another such encounter between the appellant and L.L. occurred when the appellant summoned L.L. to his classroom to type a one-paragraph letter pertaining to the football team, of which the appellant was a coach. While there is no direct allegation that any inappropriate physical contact occurred during this instance, the appellant had effectively arranged for the two to be alone in his classroom in spite of the fact that L.L. was not enrolled as a student in any class taught by the appellant at BMS. During the appellant's trial, the BMS principal testified that she did not encourage teachers to be alone in the classroom with students. L.L. further testified that the appellant had displayed photographs of her on a bulletin board at the front of his classroom. The appellant contended that some of the photographs had other students pictured in addition to L.L.; however, the one common characteristic among them was that all of the photographs had L.L. in them. The appellant did not personally take all of the photographs, but he had nonetheless obtained several photographs of L.L., one of which revealed her dressed in pajama-like clothing at a slumber party. L.L. stated that when she learned of the photographs hanging in the appellant's classroom she became upset. She said that she had not given the appellant permission to display the photographs and she immediately asked him to remove them from his wall. The appellant, however, refused. In fact, L.L. stated that she asked the appellant on approximately five occasions to remove the photographs; each time he refused. The photographs were eventually removed by another student. At trial, the principal of BMS testified that if a teacher is asked to remove photographs from the wall, then they should come down. Another encounter between the appellant and L.L. occurred on Sunday, April 2, 2006, when the appellant was at BMS working at a concession stand for a BMS athletic event. M.L., the younger brother of L.L., and several of his friends were in attendance and wished to play football. Due to the fact that they did not have a football, M.L. asked the appellant if he could let them use one of the school's balls. The appellant told M.L. that he would have to first speak with L.L. to be sure it was alright for him to provide the football. The appellant then asked M.L. for L.L.'s personal cell phone number and called her. L.L. did not answer the phone call, and the appellant left a voice message stating, L.L., D.G. is waiting for you at Bridgeport Middle School. D.G. was another student at BMS, and the appellant was aware that L.L. had a crush on him. The appellant later admitted that he knew D.G. was not at BMS on the date and time of his phone call and that he was simply playing a joke on L.L. The appellant could not provide an explanation as to how he would have reacted if L.L. had gone to BMS that day. L.L. testified that upon listening to the message on her phone left by the appellant, she became very upset and that the appellant's conduct made her feel freaky, scared, weird, and terrified. At trial, L.L.'s friends and family also testified that following the phone call L.L. was extremely upset and scared. Moreover, on April 3, 2006, the appellant approached L.L. at her school locker and showed her that he had saved her cell phone number on his cell phone. Following the appellant's phone call to L.L., she reported the incident to her parents and the school counselor who, in turn, informed the school principal. Thereafter, the school principal commenced an investigation that ultimately led to the May 2, 2007, conviction of the appellant in the Magistrate Court of Harrison County, West Virginia, for the misdemeanor offense of stalking/harassment in violation of W.Va.Code § 61-2-9a(a). The appellant subsequently filed an appeal, and a trial de novo was held in the Circuit Court of Harrison County. [3] In an order dated October 3, 2007, the circuit court found the appellant guilty of the offense of stalking/harassment in violation of W.Va.Code § 61-2-9a(a). The circuit court sentenced the appellant to six months incarceration with credit for time served and fined the appellant $500.00. In the same order, the circuit court suspended the appellant's sentence and placed him on unsupervised probation for a period of two years beginning October 3, 2007. This appeal followed.",facts
+37,3166164,2,1,"
+Wells Fargo argues that even though the district court did not consider the issue, this Court may affirm the district court’s rulings on the ground that Houpts lack standing as the real party of interest. Houpts contend that since this argument is raised for the first time on appeal it should not be considered. While it is true that “[g]enerally, issues raised for the first time on appeal will not be considered,” Arambarri v. Armstrong, 152 Idaho 734, 738, 274 P.3d 1249, 1253 (2012), issues of standing are jurisdictional, and “they can be raised at any time, including for the first time on appeal.” Id. Indeed, “this Court has a duty to raise the issue of standing sua sponte.” Campbell v. Parkway Surgery Center, LLC, 158 Idaho 957, 962, 354 P.3d 1172, 1177 (2015). Thus, we will consider the merits of Wells Fargo’s contention that Houpts lack standing as the real party in interest. Idaho’s real party in interest rule is found in the Idaho Rules of Civil Procedure and states in relevant part: Every action shall be prosecuted in the name of the real party in interest. . . . No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. I.R.C.P. 17(a). The purpose of this rule is to “prevent forfeiture when determination of the proper party is difficult or when an understandable mistake has been made in selecting the party plaintiff.” Conda Partnership, Inc. v. M.D. Constr. Co., 115 Idaho 902, 904, 771 P.2d 920, 922 (Ct. App. 5 1989). Consequently, when interpreting this rule we have stated that “[l]iberal construction should be given to this rule and courts should ‘further the policy favoring the just resolution of actions— providing litigants their day in court.’ ” Hayward v. Valley Vista Care Corp., 136 Idaho 342, 348, 33 P.3d 816, 822 (2001) (quoting Conda, 115 Idaho at 904, 771 P.2d at 922). Wells Fargo contends that once Houpts filed their bankruptcy petition in 2011, any claim Houpts had automatically became an asset of the bankruptcy estate that only the trustee could assert. In support of their argument Wells Fargo relies on McCallister v. Dixon, 154 Idaho 891, 303 P.3d 578 (2013), and Mowrey v. Chevron Pipe Line Co., 155 Idaho 629, 315 P.3d 817 (2013). In McCallister and Mowrey, the plaintiffs did not list their claims for damages in their bankruptcy schedules and then later, after their bankruptcy proceedings closed, attempted to bring suit. This Court ruled that the plaintiffs in both cases were judicially estopped from bringing their undisclosed claims and that the bankruptcy trustees, and not the plaintiffs, were the real parties in interest. We noted in McCallister that “once [the plaintiff] filed for bankruptcy, the potential [] claim he had against Respondents was no longer [the plaintiff’s] to assert. It became an asset of the bankruptcy estate for the bankruptcy trustee to assert.” 154 Idaho at 898, 303 P.3d at 585. In Mowrey, we stated that when a plaintiff has knowledge of a claim during the pendency of his bankruptcy the claim becomes “an asset of the bankruptcy estate, and [] a claim for the bankruptcy trustee alone to assert.” 155 Idaho at 635, 315 P.3d at 823. Here, like the plaintiffs in McCallister and Mowrey, Houpts had knowledge of their claims against Wells Fargo during the pendency of their bankruptcy.4 Thus, Houpts were not the real party in interest at the time they filed their Complaint. But, because Wells Fargo has not objected to Houpts’ standing as the real party in interest until this time, under I.R.C.P. 17(a), the action cannot be dismissed until a reasonable time has been allowed for the Houpts to cure the defect through “ratification . . . by, or joinder or substitution of,” the real party in interest. Accordingly, under I.R.C.P. 17(a), Houpts must be allowed the opportunity to cure any defect in the real party of interest. Yet, here, unlike in McCallister and Mowrey, the bankruptcy trustee has, since the original filing of the Complaint, specifically abandoned his interest in the property. Consequently, Houpts, unlike the plaintiffs in McCallister and Mowrey where the bankruptcy estates did not abandon their 4 Wells Fargo initiated the nonjudicial foreclosure proceedings on October 18, 2010. Houpts filed their bankruptcy schedules and amended schedules on February 16, 2011, and April 1, 2011, respectively. Houpts filed their Complaint in this action on June 22, 2012. The bankruptcy case closed on September 25, 2013. Based on these facts, Houpts had knowledge of their claims against Wells Fargo during the pendency of the bankruptcy proceedings, and no later than June 22, 2012, when they filed their Complaint. 6 interests in the plaintiffs’ claims, are now, in fact, the real party in interest and any such attempted cure would only result in Houpts seeking “ratification . . . by, or joinder or substitution of,” themselves. Therefore, even though Houpts may not have been the real party in interest at the time of filing—they are now. Requiring Houpts to start over would only result in needless waste. See, e.g., Mullaney v. Anderson, 342 U.S. 415, 417 (1952) (“To dismiss the present petition and require the [] plaintiffs to start over in the District Court would entail needless waste and runs counter to effective judicial administration—the more so since, with the silent concurrence of the defendant, the original plaintiffs were deemed proper parties below.”); Newman–Green, Inc. v. Alfonzo– Larrain, 490 U.S. 826, 836–37 (1989) (“[R]equiring dismissal after years of litigation would impose unnecessary and wasteful burdens on the parties, judges, and other litigants waiting for judicial attention. Appellate-level amendments to correct jurisdictional defects may not be the most intellectually satisfying approach to the spoiler problem, but, as Judge Posner eloquently noted, because ‘law is an instrument of governance rather than a hymn to intellectual beauty, some consideration must be given to practicalities.’ ” (citation omitted) (quoting Newman–Green, Inc. v. Alfonzo–Larrain, 854 F.2d 916, 925 (7th Cir. 1988))). Accordingly, in the interest of judicial economy and our policy favoring “the just resolution of actions [by] providing litigants their day in court” we allow Houpts’ claims to proceed. 2. The District Court had Jurisdiction to Award Wells Fargo the Proceeds of the Stipulated Sale Houpts argue that under Idaho Code section 6-101 Wells Fargo should not have been allowed to collect on its lien without first “exhausting the security.” Further, Houpts argue that they did not give implied or express consent for the court to distribute the funds from the Stipulated Sale to Wells Fargo. The district court ruled that Idaho Code section 6-101 was inapplicable and that Houpts gave at least implied consent for the district court to distribute the proceeds of the Stipulated Sale. We agree with the district court.
+Often referred to as the “one action” rule, Idaho Code section 6-101(1) states that “there can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate . . . .” However, Idaho Code section 6-101(3) explicitly states that for the purposes of section 6-101: 7 [A]n “action” does not include any of the following acts or proceedings: .... (e) For the exercise, pursuant to section 45-1505, Idaho Code, of a power of sale conferred pursuant to section 45-1503, Idaho Code; .... (k) Relating to any proceeding in bankruptcy . . . ;",jurisdiction
+38,2010554,1,3,"Durand raises two issues: (1) whether the Industrial Commission's decision setting the date of the accident on an unspecified date in either September or October 1997 was against the manifest weight of the evidence; and (2) whether this decision was contrary to Illinois law. The Industrial Commission is the ultimate decisionmaker in workers' compensation cases, and it is not bound by any decision made by the arbitrator. Cushing v. Industrial Comm'n, 50 Ill.2d 179, 181-82, 277 N.E.2d 838 (1971). Instead, the Commission must weigh the evidence presented at the arbitration hearing and determine where the preponderance of that evidence lies. See Steiner v. Industrial Comm'n, 101 Ill.2d 257, 260, 78 Ill.Dec. 256, 461 N.E.2d 1363 (1984); Wagner Castings Co. v. Industrial Comm'n, 241 Ill.App.3d 584, 594, 182 Ill.Dec. 94, 609 N.E.2d 397 (1993) (it is solely within the province of the Commission to weigh the evidence (emphasis in original)). A reviewing court will not reverse the Commission unless its decision is contrary to law (see Butler Manufacturing Co. v. Industrial Comm'n, 85 Ill.2d 213, 216, 52 Ill.Dec. 623, 422 N.E.2d 625 (1981)) or its fact determinations are against the manifest weight of the evidence (see Shockley v. Industrial Comm'n, 75 Ill.2d 189, 193, 25 Ill.Dec. 798, 387 N.E.2d 674 (1979)). A reviewing court will not reweigh the evidence, or reject reasonable inferences drawn from it by the Commission, simply because other reasonable inferences could have been drawn. See International Harvester v. Industrial Comm'n, 93 Ill.2d 59, 65, 66 Ill.Dec. 347, 442 N.E.2d 908 (1982); Benson v. Industrial Comm'n, 91 Ill.2d 445, 450, 64 Ill.Dec. 538, 440 N.E.2d 90 (1982). Fact determinations are against the manifest weight of the evidence only when an opposite conclusion is clearly apparent — that is, when no rational trier of fact could have agreed with the agency. See D.J. Masonry Co. v. Industrial Comm'n, 295 Ill.App.3d 924, 930, 230 Ill. Dec. 450, 693 N.E.2d 1201 (1998). Section 6(d) of the Workers' Compensation Act provides that an injured employee must file a workers' compensation claim within 3 years after the date of the accident. 820 ILCS 305/6(d) (West 2004). When the accident is a discrete event, the date of the accident is easy to determine: it is, obviously, the date that the employee was injured. When the accident is not a discrete event, this date is harder to specify. An employee who suffers a repetitive-trauma injury still may apply for benefits under the Act, but must meet the same standard of proof as an employee who suffers a sudden injury. See AC & S v. Industrial Comm'n, 304 Ill.App.3d 875, 879, 238 Ill.Dec. 40, 710 N.E.2d 837 (1999); Nunn v. Industrial Comm'n, 157 Ill.App.3d 470, 480, 109 Ill. Dec. 634, 510 N.E.2d 502 (1987). That means, inter alia, an employee suffering from a repetitive-trauma injury must still point to a date within the limitations period on which both the injury and its causal link to the employee's work became plainly apparent to a reasonable person. Williams v. Industrial Comm'n, 244 Ill. App.3d 204, 209, 185 Ill.Dec. 43, 614 N.E.2d 177 (1993). Setting this so-called manifestation date is a fact determination for the Commission. Palos Electric Co. v. Industrial Comm'n, 314 Ill.App.3d 920, 930, 247 Ill.Dec. 548, 732 N.E.2d 603 (2000). Here, Durand argues that the Commission's finding that her injury occurred sometime in September or October 1997 was against the manifest weight of the evidence. She contends that September 8, 2000, the date she was conclusively diagnosed with carpal tunnel syndrome, was the date of the accident; consequently, her January 12, 2001 claim was timely. Durand also argues that the Commission's finding was unfair, unrealistic, and contrary to law. According to Durand, Illinois cases have looked at the date when the employee requires medical treatment or becomes unable to work in determining when an injury manifested itself. Durand asserts that an injury in a carpal tunnel syndrome workers' compensation case cannot be established before the employee seeks medical consultation to confirm such a condition. RLI responds that the Commission's findings were consistent with Illinois law and were not against the manifest weight of the evidence. Initially, we reject Durand's argument that the decisions below were contrary to Illinois law. The appellate court, the trial court, and the Industrial Commission all employed the correct standard in determining when her injury manifested itself. That standard comes from Peoria County Belwood Nursing Home v. Industrial Comm'n, 115 Ill.2d 524, 106 Ill.Dec. 235, 505 N.E.2d 1026 (1987). In Peoria County, an employee in a nursing home laundry room experienced pain, numbness, and tingling in her hands and fingers on October 4, 1976, and consulted a neurologist regarding these symptoms the next day. The employee continued to work for nearly a year, then underwent outpatient carpal tunnel surgery on August 23, 1977. She filed a workers' compensation claim the next day, alleging that she developed carpal tunnel syndrome as a result of her work. The arbitrator awarded temporary and permanent total disability benefits. The Industrial Commission affirmed that decision; the trial court, in turn, confirmed the Commission's decision. The appellate court affirmed the trial court's decision. This court framed the issue as whether an injury sustained as a result of work-related repetitive trauma is compensable under the Workers' Compensation Act without a finding that the injury occurred as a result of one specific incident traceable to a definite time, place and cause. Peoria County Nursing Home, 115 Ill.2d at 527, 106 Ill.Dec. 235, 505 N.E.2d 1026. We stated that the purpose behind the Workers' Compensation Act is best served by allowing compensation where an injury is gradual but linked to the employee's work. Peoria County, 115 Ill.2d at 529, 106 Ill.Dec. 235, 505 N.E.2d 1026. We continued: Requiring complete collapse in a case like the instant one would not be beneficial to the employee or the employer because it might force employees needing the protection of the Act to push their bodies to a precise moment of collapse. Simply because an employee's work-related injury is gradual, rather than sudden and completely disabling, should not preclude protection and benefits.    To deny an employee benefits for a work-related injury that is not the result of a sudden mishap    penalizes an employee who faithfully performs job duties despite bodily discomfort and damage. Peoria County, 115 Ill.2d at 529-30, 106 Ill.Dec. 235, 505 N.E.2d 1026. We then discussed the limitations period. The employer argued that the employee's claim was time-barred because the injury was not traceable to a specific date. Peoria County, 115 Ill.2d at 530, 106 Ill. Dec. 235, 505 N.E.2d 1026. We agreed with the appellate court that the date of the injury in a repetitive-trauma compensation case is the date when the injury manifests itself — the date on which both the fact of the injury and the causal relationship of the injury to the claimant's employment would have become plainly apparent to a reasonable person. Peoria County, 115 Ill.2d at 531, 106 Ill.Dec. 235, 505 N.E.2d 1026, citing 1B A. Larson, Workmen's Compensation § 39.50 (1985). The employee experienced pain, numbness, and tingling in her hands and fingers on October 4, 1976; these symptoms were severe enough that she sought medical treatment the next day. Peoria County, 115 Ill.2d at 531, 106 Ill.Dec. 235, 505 N.E.2d 1026. Thus, October 4 was the last day that the employee worked before the fact of her injury and its causal connection to her work became apparent. Peoria County, 115 Ill.2d at 531, 106 Ill.Dec. 235, 505 N.E.2d 1026. We concluded that because she filed her claim less than three years later, her claim was timely. Peoria County, 115 Ill.2d at 531, 106 Ill.Dec. 235, 505 N.E.2d 1026. The appellate court has applied Peoria County in several carpal tunnel syndrome cases, and some of these cases provide useful insight regarding how to determine the manifestation date. In Oscar Mayer & Co. v. Industrial Comm'n, 176 Ill. App.3d 607, 126 Ill.Dec. 41, 531 N.E.2d 174 (1988), an employee cut meat at a slaughterhouse for 15 years. In 1981, he experienced numbness, tingling, and burning in his hands and elbows. The employer's doctor examined the employee and performed an EMG test. The doctor told the employee that he suffered from bilateral carpal tunnel syndrome, and the employee refused surgery, opting for more conservative treatment. A year later, the employee's doctor performed a second EMG test, which indicated that the employee's condition was deteriorating. Another year later, the doctor performed a third EMG test, which confirmed that the employee's condition was still deteriorating. The employee had surgery on May 12, 1983. On April 5, 1984, the employee filed a workers' compensation claim, listing his date of injury as the date he had surgery. The arbitrator awarded benefits to the employee, but the trial court reversed, concluding that the employee failed to prove that the date he had surgery was the date of accident. The appellate court reversed the trial court. Oscar Mayer, 176 Ill.App.3d at 608, 126 Ill.Dec. 41, 531 N.E.2d 174. According to the appellate court, the employee acknowledged that he knew of his injury and its relationship to his work before he had surgery. Oscar Mayer, 176 Ill.App.3d at 608, 126 Ill.Dec. 41, 531 N.E.2d 174. The appellate court, however, refused to read Peoria County narrowly: By their very nature, repetitive-trauma injuries may take years to develop to a point of severity precluding the employee from performing in the workplace. An employee who discovers the onset of symptoms and their relationship to the employment, but continues to work faithfully for a number of years without significant medical complications or lost working time, may well be prejudiced if the actual breakdown of the physical structure occurs beyond the period of limitation set by statute. [Citation.] Similarly, an employee is also clearly prejudiced in the giving of notice to the employer [citation] if he is required to inform the employer within 45 days of a definite diagnosis of the repetitive-traumatic condition and its connection to his job since it cannot be presumed the initial condition will necessarily degenerate to a point at which it impairs the employee's ability to perform the duties to which he is assigned. Requiring notice of only a potential disability is a useless act since it is not until the employee actually becomes disabled that the employer is adversely affected in the absence of notice of the accident. (Emphasis in original.) Oscar Mayer, 176 Ill.App.3d at 611, 126 Ill.Dec. 41, 531 N.E.2d 174. The appellate court stated that fact of the injury is not synonymous with fact of discovery. Oscar Mayer, 176 Ill. App.3d at 611, 126 Ill.Dec. 41, 531 N.E.2d 174, citing Peoria County, 115 Ill.2d at 531, 106 Ill.Dec. 235, 505 N.E.2d 1026. That is, the date on which the employee notices a repetitive-trauma injury is not necessarily the manifestation date. Instead, the date on which the employee became unable to work, due to physical collapse or medical treatment, helps determine the manifestation date. Oscar Mayer, 176 Ill.App.3d at 611, 126 Ill.Dec. 41, 531 N.E.2d 174. The appellate court noted that the standard remains flexible: Just as we reject [the employer's] contention the date of discovery of the condition and its relation to the employment necessarily fixes the date of accident, we reject any interpretation of this opinion which would permit the employee to always establish the date of accident in a repetitive-trauma case by reference to the last date of work. Oscar Mayer, 176 Ill.App.3d at 612, 126 Ill.Dec. 41, 531 N.E.2d 174. Where the employer concedes that the injury was work-related and that the employee continued to work until the day before surgery, the Commission could reasonably conclude that that day was the date of accident. Oscar Mayer, 176 Ill. App.3d at 611, 126 Ill.Dec. 41, 531 N.E.2d 174; but see Castaneda v. Industrial Comm'n, 231 Ill.App.3d 734, 738, 173 Ill. Dec. 402, 596 N.E.2d 1281 (1992) (holding that an employee's last day of exposure to repetitive trauma is not, in and of itself, the day of accident for the purposes of repetitive injury cases). In Three D Discount Store v. Industrial Comm'n, 198 Ill.App.3d 43, 144 Ill. Dec. 794, 556 N.E.2d 261 (1989), an employee buffed floors for a discount store. After five months, the employee noticed swelling in his hands and shooting pains in his right arm. He visited his doctor, who prescribed pain medication. At that time, he was also being treated by an endocrinologist for a diabetic condition. The employee experienced more severe pain, then numbness and tingling in his fingers and hands. The endocrinologist referred him to a neurologist. On June 27, 1984, the neurologist performed an EMG test and sent a report that the employee had carpal tunnel syndrome to the endocrinologist. The endocrinologist discussed the neurologist's report with the employee and referred him to an orthopedic surgeon. The orthopedic surgeon examined the employee on July 10, 1984, and scheduled surgery for August 1984. The employee then informed his supervisor that he had carpal tunnel syndrome and that it was work-related, and he continued to work until August 10, 1984. He later filed a workers' compensation claim. The arbitrator rejected this claim, finding that the employee failed to offer any evidence about when his injury occurred. The arbitrator concluded that if there was a work-related injury, it occurred when the employee first noticed swelling and pain, not when he left work in August 1984. The Commission reversed the arbitrator's findings. The Commission decided that the employee's injury was work-related and that it manifested itself when he left work. The Commission awarded benefits to the employee, and the trial court confirmed this decision. The appellate court initially reversed the trial court's decision, but on rehearing affirmed. Three D Discount Store, 198 Ill.App.3d at 47, 144 Ill.Dec. 794, 556 N.E.2d 261. The appellate court stated that the evidence established that the endocrinologist discussed the neurologist's report with the employee, but did not establish that the endocrinologist ever told the employee that his condition was work-related. Three D Discount Store, 198 Ill.App.3d at 47-48, 144 Ill.Dec. 794, 556 N.E.2d 261. The employee learned that his injury was work-related sometime in the month before he informed his supervisor and left work. Three D Discount Store, 198 Ill.App.3d at 48, 144 Ill.Dec. 794, 556 N.E.2d 261. The appellate court concluded that a reasonable person would have been on notice that this condition was work-related and medically disabling on July 10, 1984. Three D Discount Store, 198 Ill.App.3d at 48, 144 Ill.Dec. 794, 556 N.E.2d 261. After reviewing Oscar Mayer, the appellate court stated: An employee who continues to work on a regular basis despite his own progressive ill-being should not be punished merely for trying to perform his duties without complaint. On the other hand, it is not this State's policy to encourage disabled workers to silently push themselves to the point of medical collapse before giving the employer notice of an injury. Three D Discount Store, 198 Ill.App.3d at 49, 144 Ill.Dec. 794, 556 N.E.2d 261. The facts must be closely examined in repetitive-injury cases to ensure a fair result for both the faithful employee and the employer's insurance carrier. Three D Discount Store, 198 Ill.App.3d at 49, 144 Ill.Dec. 794, 556 N.E.2d 261. RLI argues, and we agree, that fairness and flexibility are the common themes in these cases. Indeed, the rule in Peoria County is broad enough to accommodate unique scenarios presented in different cases, and the Commission should weigh many factors in deciding when a repetitive-trauma injury manifests itself. But despite RLI's repeated invocations of flexibility, it asks us to limit the inquiry in this case to only one fact: the unspecified date in September or October 1997 on which Durand first noticed her hand and wrist pain, opined it could be carpal tunnel syndrome, and guessed it may bear some relation to her work, but declined to mention it to her supervisor for at least three months. As the appellate court correctly noted in Oscar Mayer, To always require an employee suffering from a repetitive-trauma injury to fix, as the date of accident, the date the employee became aware of the physical condition, presumably through medical consultation, and its clear relationship to the employment is unrealistic and unwarranted. Oscar Mayer, 176 Ill. App.3d at 610, 126 Ill.Dec. 41, 531 N.E.2d 174. The inquiry is not so narrow. Professor Larson's workers' compensation treatise provides a summary of the case law: The practical problem of fixing a specific date for the accident has generally been handled by saying simply that the date of accident is the date on which disability manifests itself. Thus, in [ Ptak v. General Electric Co., 13 N.J.Super. 294, 80 A.2d 337 (1951)], the date of a gradually acquired [back] strain was deemed to be the first moment the pain made it impossible to continue work, and in [ Di Maria v. Curtiss-Wright Corp., 23 N.J.Misc. 374, 44 A.2d 688 (1945)], the date of accident for gradual loss of use of the hands was held to be the date on which this development finally prevented claimant from performing his work. However, for certain purposes the date of accident may be identified with the onset of pain occasioning medical attention, although the effect of the pain may have been merely to cause difficulty in working and not complete inability to work. 3 L. Larson, Larson's Workers' Compensation Law § 50.05, at XX-XX-XX-XX (2005). In short, courts considering various factors have typically set the manifestation date on either the date on which the employee requires medical treatment or the date on which the employee can no longer perform work activities. See Peoria County Belwood Nursing Home v. Industrial Comm'n, 138 Ill.App.3d 880, 887, 93 Ill.Dec. 689, 487 N.E.2d 356 (1985), aff'd, 115 Ill.2d 524, 106 Ill.Dec. 235, 505 N.E.2d 1026 (1987) (holding that determining the manifestation date is a question of fact and that the onset of pain and the inability to perform one's job, are among the facts which may be introduced to establish the date of injury). A formal diagnosis, of course, is not required. The manifestation date is not the date on which the injury and its causal link to work became plainly apparent to a reasonable physician, but the date on which it became plainly apparent to a reasonable employee. See General Electric Co. v. Industrial Comm'n, 190 Ill.App.3d 847, 857, 137 Ill.Dec. 874, 546 N.E.2d 987 (1989). However, because repetitive-trauma injuries are progressive, the employee's medical treatment, as well as the severity of the injury and particularly how it affects the employee's performance, are relevant in determining objectively when a reasonable person would have plainly recognized the injury and its relation to work. See Oscar Mayer, 176 Ill.App.3d at 610, 126 Ill.Dec. 41, 531 N.E.2d 174. Against this legal background, the question before us is simply whether the date chosen by the Commission was against the manifest weight of the evidence adduced at the arbitration hearing. We believe it was. According to RLI, Durand admitted that she knew about carpal tunnel syndrome and even suspected she had it in September or October 1997. RLI contends that Durand presented no evidence to show that she changed her mind about her injury or its relation to her work, and concludes that the manifestation date was in 1997. RLI essentially asks us to rely on expert medical testimony from a layperson, Durand, and ignore her testimony about her intermittent pain and how it affected her performance. At the arbitration hearing, Durand testified that she told her supervisor about her hand and wrist pain in September or October of 1997, but she didn't know at the time what it was, even though she believed it was work-related. Durand reached that expert opinion based solely on the pain she was having, not on any doctor's advice. Durand later reiterated that she wasn't sure her pain was carpal tunnel syndrome because it wasn't real constant and real severe in 1997. She then testified that she might have heard of carpal tunnel syndrome and knew people who had had it, and so surmised that she too had developed work-related carpal tunnel syndrome. Durand was never reassigned to other work, and she never sought medical treatment for her hand and wrist pain until August 15, 2000, when she visited Dr. Escorcia. Dr. Escorcia noted that Durand reported her pain began 18 months earlier, or a year after she spoke to her supervisor, but the pain was on and off. Dr. Blume noted that Durand reported her pain began two years before he examined her on September 8, 2000, and progressed when she worked. Dr. Pomerance noted that Durand reported gradual onset of hand and wrist pain in mid-2000; she had symptoms approximately 18 months earlier, but these were not that bothersome to her. Similarly, Dr. Conner noted that Durand reported problems in her arms in mid-2000. Dr. Martin stated Durand's carpal tunnel syndrome could have manifested itself with her hand and wrist pain in 1997, but gave no indication whether he reached that conclusion using the Peoria County standard. If Durand would have filed a claim in 1997, she certainly would have had difficulty proving her injury. Her description and understanding of the hand and wrist pain was sketchy and equivocal. At that time, it was not so constant or severe that it warranted medical treatment or reassignment to different work. As Justice Holdridge suggested in his dissent, the circumstances signal periodic discomfort leading to doubt about the existence of a distinct injury. 358 Ill.App.3d at 246, 294 Ill.Dec. 715, 831 N.E.2d 665 (Holdridge, J., dissenting, joined by Donovan, J.). The record strongly suggests that this doubt lingered until 2000, when Durand's pain finally necessitated medical treatment. A reasonable person would not have known of this injury and its putative relationship to computer keyboard work before that time, and it was against the manifest weight of the evidence to conclude otherwise. Durand's claim was timely. We decline to penalize an employee who diligently worked through progressive pain until it affected her ability to work and required medical treatment. However, we must remand this cause to the Industrial Commission. RLI, relying on testimony from Dr. Pomerance, disputed whether Durand's work activities caused her injuries. The Commission decided this case solely on the limitations period issue, and did not weigh the evidence on causation. We decline to usurp this function of the Commission, based upon the paper record before us.",analysis
+39,2371008,1,2,We review a court's approval of an allocation plan for abuse of discretion. [7] The Court abuses its discretion when it exceeds the bounds of reason in light of the circumstances or when it ignores the rules of law or practices in a manner that creates injustice. [8],standard of review
+40,2714924,1,2,"Gomez gave birth to Rafael on August 7, 2001, in the backseat of her car. He was taken to the hospital, where he tested positive for 2 In re Pers. Restraint of Gomez No. 86711-9 methamphetamine, cocaine, and other nonprescribed controlled substances as a result of her drug use during pregnancy. Rafael was placed in foster care and was later declared a dependent of the State of Washington. In the 10 months he was in foster care from August 10, 2001, through June 4, 2002, Rafael did not sustain any significant injuries. At the time he was placed in Gomez's custody, Rafael was an easy baby who could feed himself. In September 2002, three months after leaving foster care and returning to his biological family, Rafael was taken to Samaritan Hospital for a fractured right tibia. He also had numerous bruises on his abdomen and back in the shape of a hand print. The following day, the physician's assistant who casted Rafael's leg noticed lacerations on both of his nipples. In early December 2002, less than three months after his broken tibia, Rafael was taken to Quincy Valley Medical Center for a broken left femur. He was then transferred to Central Washington Hospital, where Gomez falsely reported a history of a normal pregnancy and reported no prior hospitalizations. In addition to the proximal femur fracture, he was diagnosed with an occipital skull fracture, a pinch mark bn1ise to his ear, an infected scab injury to the occipital bone at the back of the skull, bums on his left hand, and a burn on his tongue. When the x-rays were reviewed, an additional skull 3 In re Pers. Restraint of Gomez No. 86711-9 fracture was noted that was in the early stages of healing. More than one physician had concerns of abuse, and Child Protective Services (CPS) was contacted. One treating physician, Dr. Cook, had no doubt that Rafael had been physically abused. Finding of Fact (FF) 2.17. Rafael was returned to his foster family, where he again sustained no serious injuries. Rafael was returned to Gomez three months later on March 21, 2003. Gomez testified that Rafael rolled off the bed and hit his forehead about a week before his death. She testified that she took him to CPS to show the injury to her case worker, Murray Twelves, and his supervisor, Cecelia DeLuna. Mr. Twelves and Ms. DeLuna both testified that Gomez never brought Rafael in to CPS to show them his injury. On September 9, 2003, less than six months after being returned to Gomez's care for the final time, the events occurred that led to Rafael's death. Gomez testified that she was feeding soup to Rafael when he threw himself backwards in a tantrum with a mouth full of soup. According to Gomez, Rafael hit his head on the floor, lost consciousness, and died the next day. Rafael was declared dead on September 10, 2003, at approximately 25 months old. An autopsy was performed one day after his death. The autopsy indicated blunt force injuries of the head to include 4 In re Pers. Restraint of Gomez No. 86711-9 abrasions of the face, right ear, and scalp; subgaleal hemorrhages of the occipital scalp and supragaleal hemorrhage of the frontal scalp, acute and subacute; occipital skull fractures, acute and chronic, focal organizing epidural hemorrhage; acute subdural and subarachnoid hemorrhages; cerebral edema; and focal acute ischemic changes of the cerebrum. The autopsy further revealed bilateral retinal hemorrhages, contusions of the back and upper extremities, and periosteal and epiphyseal-metaphyseal injuries of the proximal humeri. The injuries showed variably acute to subacute and chronic features. The features of the skull fractures suggested acute/recent fractures superimposed on an area of previous skull injury. Dr. Ross' autopsy findings were consistent with non-accidental trauma. Based on the autopsy findings and the investigative history, Dr. Ross concluded that Rafael died as a result of blunt force injuries of the head. He indicated that the manner of death was homicide. FF 2.33 (emphasis added). The autopsy revealed multiple skull fractures of varying ages, as well as new injuries that had not been noted while Rafael was alive. These new injuries included breaks to his upper arms. Dr. Feldman testified that this occurred when Rafael's arms were jerked severely enough to separate the bones at the shoulders. Although Gomez testified that Rafael exhibited selfinjurious behaviors, the foster mother, the day care provider, and the case worker all testified that they had never observed such behavior. Rafael's death in Gomez's presence gave rise to dependency proceedings in 2004 and 2006 to determine the status of the other children of 5 In re Pers. Restraint of Gomez No. 86711-9 Gomez and Jose Arechiga, Rafael's father. During the 2004 proceedings, both Gomez and Arechiga argued that Rafael's injuries resulted from accidents or Rafael's odd behavior. During the dependency proceedings, Robert Moser, a local defense attorney, represented Arechiga and another attorney represented Gomez. Around the time of the 2004 proceedings, the State charged Gomez with manslaughter. Instead of having her attorney at the dependency proceedings defend her against the manslaughter charge, Gomez retained Arechiga's attorney, Moser. Moser's experience included trying misdemeanors as a district court deputy prosecutor and practicing criminal and tort law privately. When Moser began representing Gomez, he based his investigation of her case on the facts and impressions he gathered from the 2004 proceedings. At the proceedings he heard testimony from friends, neighbors, social workers, and doctors who had seen Rafael while he was alive or after his death and who had reviewed his medical records for CPS. Such testimony led him to believe that Gomez's argument about accidents and self-injury would not persuade a judge or jury. Moser states, however, that when he learned new information from Gomez concerning this argument, he endeavored to 6 In re Pers. Restraint of Gomez No. 86711-9 interview new witnesses. Because Gomez speaks Spanish and, as Moser admits, her English skills are not very good, App. 4, at 4, 1 the two sometimes spoke through a bilingual friend of Gomez's or a court interpreter. In addition to investigating lay witnesses, Moser sought out expert witnesses to opine on the cause ofRafael's death. Moser's theory ofthe case appears to have been that Rafael's death was·not due to his fall while eating soup the day before his death, but rather a fall he took from a bed and onto his head a few days prior. Moser eventually retained Dr. Janice Ophoven, a forensic pathologist who specializes in diagnosing the cause of child injuries and deaths, to opine on the cause of Rafael's death. Dr. Ophoven requested autopsy slides and radiology Images from Moser, but Moser did not fulfill her request until around the start of trial. He did, however, write to Dr. Ophoven to provide her with background information, including that Rafael had suffered many injuries that were suspicious for child abuse. App. 18, at 2. Dr. Ophoven misunderstood Moser's letter to mean that CPS had confirmed the history of abuse. 1 All appendix citations are to the appendices attached to the amended opening brief of petitioner. 7 In re Pers. Restraint of Gomez No. 86711-9 At trial, Dr. Ophoven testified that Rafael died of aspiration pneumonia (choking) and conceded that Rafael had been abused. Her ultimate conclusion was that the cause of death was undetermined. The trial judge concluded that Rafael died of blunt force trauma and that Gomez caused his death. The trial judge also concluded that the upper arm injury, occipital skull fracture and epidural hemorrhage, bruised/gouged ear injuries, and lacerated nipples were all the result of assaults by Gomez. She was convicted of manslaughter and homicide by abuse. On appeal, the manslaughter conviction was vacated on double jeopardy grounds. State v. Gomez, noted at 147 Wn. App. 1003, 2008 WL 4561499. Gomez then filed a personal restraint petition, which was denied by the Court of Appeals. In re Pers. Restraint of Gomez, noted at 164 Wn. App. 1017, 2011 WL 4839109. Petitioner then filed a motion for discretionary review before this court, which was granted. In re Pers. Restraint of Gomez, 175 Wn.2d 1005, 284 P.3d 742 (2012).",facts
+41,880070,1,3,1. Whether the Commission’s ruling that Mazzone did not suffer a compensable psychological injury pursuant to I.C. § 72-451 is supported by substantial and competent evidence. 2. Whether the Commission improperly relied on evidence not properly before it. 3. Whether either party is entitled to attorney fees on appeal.,issues
+42,874029,1,3,1. Whether Arambarri has standing and whether his claim is moot? 2. Whether the Director has the statutory authority to eliminate the regional director positions? 3. Whether the district court erred when it denied Arambarri's Motion to Strike the affidavits of Armstrong and Taylor? 4. Whether Arambarri is entitled to attorney's fees on appeal? 5. Whether the Director is entitled to attorney's fees on appeal?,issues
+43,2330840,1,5,"[¶ 24] In Mendicoa v. State, 771 P.2d 1240, 1243 (Wyo. 1989) we noted regarding the sufficiency of the evidence: It is not our function to weigh the evidence for a determination as to whether or not it is sufficient to establish guilt beyond a reasonable doubt. We have consistently held that even though it is possible to draw other inferences from the evidence presented, it is the responsibility of the jury to resolve conflicts in the evidence. Broom v. State, 695 P.2d 640, 642 (Wyo.1985) (citations omitted), quoted in Roose [ v. State ], 759 P.2d [478] at 487 [ (Wyo.1988) ]. Broom v. State, 695 P.2d 640, 642 (Wyo. 1985) (citations omitted)[.] [¶ 25] In Kenyon v. State, 2004 WY 100, ¶ 14, 96 P.3d 1016, 1022 (Wyo.2004) (quoting May v. State, 2003 WY 14, ¶ 11, 62 P.3d 574, 578 (Wyo.2003) (citations and quotation marks omitted)), we stated: When reviewing a sufficiency of the evidence claim in a criminal case, we must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party's evidence. We have consistently held that it is the jury's responsibility to resolve conflicts in the evidence. We will not substitute our judgment for that of the jury, ... our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did. [¶ 26] We have stated that this Court does not review the record evidence to determine if it agrees with the verdict, but rather the critical inquiry of this 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 proven beyond a reasonable doubt. Ekholm v. State, 2004 WY 159, ¶ 18, 102 P.3d 201, 206 (Wyo.2004); Tanner v. State, 2002 WY 170, ¶ 7, 57 P.3d 1242, 1244 (Wyo.2002). Here, we conclude that a rational and reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, given the conduct of Jones. [¶ 27] In Wentworth v. State, 975 P.2d 22, 26 (Wyo.1999) we stated: Specific intent is an element of the crime of larceny. Wetherelt v. State, 864 P.2d 449, 452 (Wyo.1993). The State must establish that element, just as it must any other element, beyond a reasonable doubt. Jennings v. State, 806 P.2d 1299, 1303 (Wyo.1991). The element of specific intent that must be demonstrated in a larceny case is intent to steal or to deprive the owner of the property   . Wyo. Stat. Ann. § 6-3-402(b). Wentworth asserts that the prosecution presented no evidence of intent, but he might more appropriately argue that the prosecution offered no direct evidence of intent. The fallacy in Wentworth's claim, however, is that the jury may infer specific intent from circumstantial evidence, such as the conduct of the defendant. As we said in Schiefer v. State, 774 P.2d 133, 135 (Wyo.1989): The mind of an alleged offender may be read from his acts, his conduct, his words and the reasonable inferences which may be drawn from the circumstances of the case. To hold otherwise would create an impossible burden in a case requiring a finding of specific intent. [Emphasis in original.] [¶ 28] As to sufficiency of the evidence, leaving out the conflicting testimony of Jones, the jury had sufficient evidence to convict. The reasonable inference is that Jones intentionally and with premeditation demanded the money from Whitehead, shot and killed him, then took the money from Whitehead's pocket or off the floor, and fled with Bell. Bell stated that Jones was serious about the taking of the money. This was done in the presence of eye witnesses. The statement, give me your money, at gunpoint is generally sufficient for this Court to conclude that Jones intended to take the victim's money by using deadly force. Furthermore, the testimony was that even though Whitehead complied with the demand, Jones shot Whitehead, who was unarmed, several times. From our review of the record, the jury clearly had sufficient evidence to convict Jones.",sufficiency of the evidence
+44,1993742,1,3,"The overruling of a plea in bar raising a double jeopardy claim is a final order from which an appeal may be taken. [2] Issues regarding the grant or denial of a plea in bar are questions of law. [3] On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. [4]",standard of review
+45,2551919,1,13,"Defendant raises several claims of error regarding the penalty phase and the validity of his death sentence, but we need consider only one. During jury selection, the defense alleged that the prosecutor had improperly used peremptory challenges against five Hispanic prospective jurors, and the trial court found a prima facie case of invidious discrimination, but the court erroneously permitted the prosecutor to give his reasons for the peremptory challenges in ex parte hearings, out of the presence of defendant and his attorney. Although the record of voir dire failed to support some of the reasons that the prosecutor gave, the trial court accepted every reason without inquiry and denied the defense motion, with the result that no Hispanic served on the jury that returned the death verdict. We will conclude that the denial of the defense motion was prejudicial error requiring reversal of the death sentence.",issues
+46,2176586,1,8,"We therefore conclude that the Commissioner has failed to demonstrate any error by the Court of Chancery. The Vice Chancellor properly did not affirm the Commissioner's finding of direct liability of Hibbard Brown because it is not supported by material and substantial evidence in the record. Moreover, we agree with the Court of Chancery's method of determining the number of violations of the statute and its conclusion regarding the appropriate magnitude of the sanction to be imposed. With respect to the cross-appeal, Hibbard Brown has not shown that the award of restitutionary damages through the retroactive application of 6 Del.C. § 7325(b) was erroneous under applicable legal principles governing the retroactive application of statutory amendments which provide only additional remedies. Moreover, the Court of Chancery properly exercised its discretion in affirming the revocation of the licenses of Martone and Hart in light of the substantial evidence establishing their misconduct. By contrast, the Court of Chancery's conclusion that Hibbard Brown failed to disclose adequately its status as a market maker is erroneous as a matter of law because it is based on the particular stock purchaser's lack of sophistication rather than what a reasonable investor would understand. We AFFIRM the Court of Chancery's decision upholding the license revocation of Martone and Hart and the finding that Hibbard Brown failed to supervise them. We REVERSE the Court of Chancery's conclusion that Hibbard Brown failed to disclose adequately its market maker status and REMAND the matter for further proceedings consistent with this opinion. [12]",conclusion
+47,1859780,1,2,"We granted this appeal to decide whether the Court of Appeals erred in holding that expert medical or scientific proof of a serious mental injury is required to support the plaintiffs' claims for intentional infliction of emotional distress. The trial court granted the defendants' motion for summary judgment because the plaintiffs failed to have available expert proof to corroborate their claims of having sustained serious mental injuries. The Court of Appeals affirmed the trial court's dismissal of the case. After careful consideration of the record in this case, the applicable law, and the arguments of the parties, we conclude that expert medical or scientific proof of a serious mental injury is generally not required to support a claim for intentional infliction of emotional distress. Accordingly, for the reasons herein, we reverse the Court of Appeals and remand this case to the trial court for further proceedings.",introduction
+48,1320101,3,2,"Smith argues that, based upon a defective indictment, the trial court lacked jurisdiction over the solicitation charge. We need not reach this issue in light of our conclusion Smith was entitled to a directed verdict on this count. Accordingly, we reverse Smith's conviction for solicitation and affirm the granting of a new trial on the conviction for accessory before the fact. This matter is remanded for further proceedings. AFFIRMED IN PART; REVERSED IN PART.",jurisdiction
+49,2642474,1,1,"¶1 This appeal arises from the Central Utah Water Conservancy District’s (CUWCD) January 7, 2003 agreement (Agreement) to improve irrigation structures belonging to Upper East Union Irrigation Company (UEU), East River Bottom Water Company (ERB), and Timpanogos Canal Company (TCC) (collectively, Canal Companies) in exchange for rights to the increased water flow arising from the improvements. CUWCD failed to complete its CUWCD v. UEU et al. Opinion of the Court obligations under the Agreement. After negotiations with the Canal Companies broke down, CUWCD filed a declaratory action to establish its contractual rights. ¶2 The district court ruled that because CUWCD breached its obligations under the Agreement, UEU and ERB were entitled to enforce the bargained-for damages provisions, resulting in the loss of CUWCD’s prospective water rights. CUWCD appeals, asserting that the district court erred by: (1) granting summary judgment in favor of the Canal Companies, (2) failing to recognize that UEU and ERB received the benefit of their bargain, (3) refusing to reconsider its summary judgment ruling, (4) rejecting CUWCD’s claims that its performance was excused under the doctrine of impracticability, (5) failing to recognize CUWCD’s tender of cash in lieu of performance, and (6) refusing to allow CUWCD to amend its pleadings to add allegedly necessary parties. ¶3 We affirm the judgment of the district court in its entirety. Specifically, we hold that CUWCD’s breach was material because UEU and ERB did not receive the benefit of their bargain. And the breach was not excused by the doctrine of impracticability or CUWCD’s tender of cash in lieu of performance. Therefore, the district court appropriately entered summary judgment in favor of UEU and ERB and was under no obligation to reconsider its ruling. Finally, the district court did not abuse its discretion when it refused to allow CUWCD to amend its pleadings to join allegedly necessary parties.",introduction
+50,2184630,1,3,We find the evidence to be sufficient and we see no good reason why we should analyze that evidence in detail here. By the Court. —Judgment affirmed.,sufficiency of the evidence
+51,1657019,1,1,"Mr. Grim first argues that the evidence does not support his convictions. The standard for appellate review of the sufficiency of the evidence to support a criminal conviction was stated by this Court in State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989): On review, the Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary. [Citation omitted.] In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Under this standard, the Court must review the evidence adduced at trial and examine the inferences reasonably supported by that evidence to determine whether the jury's verdict is proper. The Dulany standard echoes the due process standard announced by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Missouri might choose to require more evidence to support convictions on appellate review, but due process mandates that all convictions be supported at least to this extent. For the most part, we have not required anything more than the constitutionally required minimum and employ the Dulany standard. One exception, however, has been in cases based upon circumstantial evidence. The State now questions the necessity of this different treatment and asks us to re-examine and reject the circumstantial evidence rule.
+The circumstantial evidence rule originated as a higher standard to which circumstantial evidence cases were held. Because of a basic distrust of criminal convictions based upon circumstantial evidence and nothing more, we required the prosecution in such cases to meet a different burden. The distrust took form in the rule, which was used both as a standard of appellate review and as a jury instruction. In its appellate form the rule was stated: Where the conviction rests on circumstantial evidence, the facts and circumstances to establish guilt must be consistent with each other, consistent with the guilt of the defendant, and inconsistent with any reasonable theory of his innocence. State v. Pritchett, 327 Mo. 1143, 39 S.W.2d 794, 796-97 (1931). Although this statement of the rule is quite similar to our modern rule, the older cases reveal the distrust of circumstantial evidence and the resulting higher standard. Where a chain of circumstances leads up to and establishes a state of fact inconsistent with any theory other than the guilt of the accused, such evidence is entitled to as much weight as any other kind of evidence; but the chain, as it were, must be unbroken, and the facts and circumstances disclosed and relied upon must be irreconcilable with the innocence of the accused in order to justify his conviction. Pritchett, 39 S.W.2d at 797 (quoting State v. Morney, 196 Mo. 43, 50, 93 S.W. 1117, 1119 (1906)) (emphasis added in Pritchett ). [1] In more recent years, courts have come to view circumstantial evidence as no different from direct evidence. See, e.g., Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954). Missouri courts now apply a more relaxed version of the rule. Specifically, we have retained the language of the traditional standard but continue in the next sentence with a limitation on the rule: Where the conviction rests on circumstantial evidence, the facts and circumstances to establish guilt must be consistent with each other, consistent with the guilt of the defendant, and inconsistent with any reasonable theory of his innocence. In such cases, the evidence need not be absolutely conclusive of guilt, nor must the evidence demonstrate the impossibility of innocence. E.g., State v. Livingston, 801 S.W.2d 344, 347 (Mo. banc 1990) (emphasis added). To withstand scrutiny under the Dulany standard, i.e., the due process minimum, a conviction must be supported by enough evidence that a reasonable juror, taking all evidence in the light most favorable to the State, would be convinced beyond a reasonable doubt. Under the circumstantial evidence rule, the inquiry would turn to whether there exists a reasonable theory of innocence that is consistent with all of the evidence. The theory need not be so likely that no reasonable person could discount it. At this point, the circumstantial evidence rule provides no more guidance and a reviewing court, or a juror, must simply decide whether the theory presented is reasonable. Confusion as to how likely a theory has to be before it is reasonable adds to the overall confusion regarding the rule. In a sense, the issue is whether the Dulany standard and the circumstantial evidence rule require a different quantum of evidence to support a conviction. If the two rules lead to identical results in all cases, there is no need to retain the circumstantial evidence rule since it could only lead to confusion to have two rules for one standard. If, on the other hand, the two rules sometimes yield different results in the same case, problems arise. Because the Dulany standard has a constitutional foundation, no conviction can be affirmed when the evidence fails under this test. If the circumstantial evidence rule is interpreted to require less evidence than the Dulany standard, then it will lead to the violation of defendants' constitutional rights and must be rejected. If the circumstantial evidence rule is used to require more evidence than the Dulany standard, we must consider what added quantum of evidence and convincing power is contemplated to overcome a reasonable theory of innocence, how this differs from the Dulany standard for appellate review and the phrase beyond a reasonable doubt, and whether the circumstantial evidence rule can be applied consistently and fairly by diverse judges and juries passing upon a wide spectrum of facts and circumstances. Even overcoming these hurdles, we must ask ourselves whether there is any need to hold circumstantial evidence cases to a higher standard. No reason remains to perpetuate this different rule. Any societal distrust of circumstantial evidence has long been abandoned. We no longer need to hold circumstantial evidence cases to a higher standard than direct evidence cases. If a jury is convinced beyond a reasonable doubt, so long as the evidence meets the minimal appellate standard required by due process, we need not disturb the result simply because the case depended wholly, mostly, or partially upon circumstantial proof. The State urges us to reject the rule because the overwhelming majority of jurisdictions have already done so. In fact, many jurisdictions have ceased to follow the rule, including the federal courts. Of course, we do not decide our cases based upon which rule wins favor in the most states. That other courts have reached the same conclusion reinforces our decision but does not require it. Suffice it to say that we are not the first court to reach the issue, nor are we the first to reject the rule. Those interested in the reasoning employed by other courts may find profitable an examination of two recent decisions—one from Ohio, the other from Texas. State v. Jenks, 61 Oh.St.3d 259, 574 N.E.2d 492 (1991); Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). In Jenks, the Ohio Supreme Court rejected the circumstantial evidence rule as an instruction to juries and as an appellate standard of sufficiency of the evidence. Jenks, 574 N.E.2d 492. Before doing so, the court reviewed the law of many states and the federal courts. Id. at 498-502. The court then overruled previous decisions that had examined the question and upheld the use of a circumstantial evidence instruction. Id. at 503. Almost as an aside, the court then disposed of the rule as a gauge of sufficiency of the evidence. Id. In reaching its conclusion, the Ohio court noted first that [c]ircumstantial evidence and direct evidence inherently possess the same probative value.... Hence, we can discern no reason to continue the requirement that circumstantial evidence must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt. Id. at 502. Thus, in the court's view, the instruction to the jury was no longer warranted. Proceeding to consider the proper standard of appellate review, where the evidence is either circumstantial or direct, we conclude that the relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id. at 503. Of similar import is the Texas Court of Criminal Appeals decision in Geesa, 820 S.W.2d 154. In Texas, the circumstantial evidence instruction had already been rejected in Hankins v. State, 646 S.W.2d 191 (Tex.Crim.App.1983). Thus, in Geesa , the Texas court had to determine whether the reasonable-hypothesis-of-innocence analytical construct retained any validity as a standard of review. Noting that the theoretical basis for the rule disappeared with the demise of the jury instruction, the court also pointed out a number of problems that the analytical construct gave rise to. In Texas, the rule led appellate courts to place themselves in the posture of a `thirteenth juror'. Id. at 159. Also, the rule had served as a source of confusion in appellate courts as to what evidence should be considered in applying the rule, what light the evidence should be viewed in, and what the result should be in a given case. Id. at 160. Consequently, the Texas court rejected the rule, noting that many other jurisdictions had done the same. Id. at 161, n. 9. The State argues, and we recognize, that Missouri's circumstantial evidence rule is causing many of the same problems that Texas courts experienced. We might have chosen to try to solve these problems by redefining the phrase reasonable theory of innocence in such a way as to make it clear that the circumstantial evidence rule was equivalent to the Dulany rule. Such a redefinition would have disposed of the remnants of our distrust of circumstantial evidence and might have aided in eliminating confusion. However, maintenance of a different test, even one designed to produce identical results, could never entirely end the confusion surrounding the rule. Thus, rather than suffer an unnecessarily restrictive standard based upon an outdated view of circumstantial evidence or invite further confusion and error by adopting yet another version of the circumstantial evidence rule, we reject the circumstantial evidence rule as a standard for reviewing the sufficiency of the evidence. The State also asks us to end the practice of giving to the jury that portion of the circumstantial evidence instruction that mirrors the appellate circumstantial evidence rule. Because we conclude that the circumstantial evidence rule is confusing to judges and lawyers, who make a career out of shoveling the smoke of abstract ideas, we cannot ignore the fact that the rule has to confuse, and often mislead, lay jurors. Everything we have said concerning the appellate circumstantial evidence rule applies with equal force to the same language found in the jury instruction, MAI-CR3d 310.02. [2] We have honed our reasonable doubt instruction with legal analysis brought on by decades of defendants' attacks coming from every point of the compass. We believe the reasonable doubt instruction fully and accurately instructs the jury on the risk of non-persuasion. The circumstantial evidence instruction no longer serves the same purpose it did when we reaffirmed its use in State v. Lasley, 583 S.W.2d 511, 515 (Mo. banc 1979) (explaining that abrogation of the rule was proper only in jurisdictions that had an instruction defining reasonable doubt). The second paragraph of MAI-CR3d 310.02 shall no longer be given. The rule might be seen as requiring less evidence than, the same amount of evidence as, or more evidence than the Dulany standard. No conviction can be affirmed on less evidence than Dulany requires. A different rule stating the same standard is confusing and redundant. The previous justifications for requiring more evidence have been abandoned. Under any interpretation of the quantum of evidence required by the circumstantial evidence rule, the rule is no longer valid. It should be, and is, rejected. Having rejected the circumstantial evidence rule, we must now determine whether the state's case is adequate under the Dulany standard. A brief narration of the relevant evidence is in order.
+The crime took place in the City of St. Louis. The evening of July 28, 1988, Cora Bradford's niece became worried when her aunt failed to answer repeated telephone calls. The niece called the police and asked them to check on Ms. Bradford, an elderly woman who lived alone. When Officer Scott arrived to investigate, he found the front door of the house locked. No one answered the bell or repeated knocks on the front door. Upon further investigation, Officer Scott found the back door standing open and the screen door shut but not latched. The eye and hook arrangement normally used to latch the screen door had been broken loose and was lying on the floor. Officer Scott stepped through the back door and into the kitchen. In the short, narrow hallway leading from the kitchen to the front bedroom, Officer Scott found Ms. Bradford's nude body. As a part of the ensuing homicide investigation, the police took photographs of the scene and searched for fingerprints and other evidence. Ms. Bradford's body was removed to the morgue for the purpose of conducting an autopsy. The police seized numerous items of evidence in an attempt to determine who had killed Ms. Bradford. The evidence was removed from the scene for further examination and testing. Many of the photographs were admitted into evidence for the purpose of showing the layout of the house, the scene of the crime, and the position of the body. The photos also revealed the amount and location of blood spattered and smeared on the walls and floors from which the jury could draw inferences as to the nature of the attack. The photos of the bedroom show bloodstains on the sheets and bedspread, a puddle of blood on the floor next to the bed, and a few bloody shoeprints. In addition to the shoeprints, the pictures show a bloody print made by a bare foot and many drops of blood on the floor in a trail away from the bed and toward the hall. Also visible in the pictures are a few pieces of newspaper scattered about the floor, some of which have spots of blood on them. The photos of the hallway show Ms. Bradford's body as it was found by the police—face down, head pointed towards the bedroom and feet towards the kitchen, and laying at an angle so that it extended from one side of the hall to the other. Anyone traveling down the hall from the kitchen to the bedroom would be forced to step over the body. The pictures show streaks of blood on Ms. Bradford's legs and feet and a pool of blood under her face and chest. The pictures also reveal a number of drops of blood on the floor around Ms. Bradford's body. Other pictures show two small areas of blood on the walls above Ms. Bradford's feet on both sides of the hall, the blood in these areas is mostly in spots and drips, though there are some areas that look smeared. The pictures of the kitchen show a table with a number of items on it, including a wallet, which looks like it has blood stains on it. Pictures of the floor reveal more pieces of newspaper and a few bloody shoeprints, including one on the sill of the back door. The autopsy showed that Ms. Bradford died from a wound to the left side of her chest that severed her aorta and her trachea. The medical examiner concluded that the wounds were consistent with stab wounds from a sharp object, most probably a knife with a blade more than four inches long. All of the wounds were on the left side of the body, one appearing on the left arm. He characterized the wound to the arm as a defensive wound; i.e., one suffered in an attempt to ward off a blow. The medical examiner was of the opinion that Ms. Bradford died seven to twenty-four hours before her body was found. He explained that, while this range was his best approximation, the actual time of death could extend out of this seventeen hour range. Blood samples were taken from the body for the purpose of comparison with blood stains on evidence seized from the scene. The blood samples were delivered to the crime lab. Criminalist Margaret Owens tested the blood to type it with respect to five of the approximately one hundred enzymes present in human blood. Because these five enzymes were more resistant to the effects of temperature and drying, they could be detected and classified even after as long as a month outside of the body. Thus, the enzymes were most likely to be discernible in blood on the items taken from the house. Each of the five enzymes Ms. Owens tested had three possible types. For example, the enzyme abbreviated ESD could be type one, type two-one, or type two. Any particular person's blood would have only one of these types. Thus, the enzymes served as points of comparison between the blood sample taken directly from Ms. Bradford's body and any blood found on evidence seized from the house. Ms. Owens testified that fourteen percent of the black population in St. Louis has the same types for these five enzymes as Ms. Bradford did. In addition, Ms. Owens tested some of the pieces of evidence to determine whether they had traces of blood on them, whether the blood was human, and whether the enzymes matched Ms. Bradford's. Not all of the evidence seized had marks or stains to be tested. Each important piece of evidence will be discussed in turn. The police found a large kitchen knife in some weeds in the backyard of the house. The size of the knife was consistent with it being the murder weapon. The knife was examined for fingerprints, but no identifiable prints were present. Although there were no visible stains on the knife, Ms. Owens scraped the blade and handle with a piece of test paper and was able to obtain a very small sample. The sample proved to be blood but was too small to be tested to determine whether it was human blood or animal blood such as from cutting meat or poultry. The police seized some of the pieces of newspaper from the house. The three pieces of newsprint admitted into evidence each had at least a partial footprint. One piece of paper had a complete print made by a bare foot. The other two pieces of paper had shoeprints on them, which Criminalist Harold Messler testified came from two sets of shoes. [3] There was no evidence as to how the prints compared to Mr. Grim's shoes. Ms. Owens tested the prints and determined that they were made in blood, that the blood was human blood, and that all five enzyme types matched the enzyme types in Ms. Bradford's blood. The most important piece of evidence was the wallet found on the kitchen table. Ms. Bradford's niece could not positively identify the wallet as her aunt's, but she identified a picture inside the wallet as being her aunt's husband, who had been dead for thirty-eight years at the time of the murder. The wallet could be held shut by a short strap fastened with a snap and, when opened, had a section for paper money; a place for coins, which also snapped shut; and a section for pictures that contained a plastic insert to hold the photos. The wallet had a few dark smears on the outside, and there were stains around each of the snaps that held the various parts of the wallet shut. Ms. Owens tested the stain on the coin flap of the wallet and found that it was blood, that it was human blood, and that four of the five enzymes matched those of Ms. Bradford. The test for the fifth enzyme was inconclusive; it did not reveal what type the enzyme was. According to Ms. Owens, seventeen percent of the black population in St. Louis shares these four enzyme types. Inside the wallet was a partial fingerprint left on the plastic insert directly opposite the picture of Ms. Bradford's late husband. Ms. Owens testified that the fingerprint appeared to be in blood that looked the same as the blood on the rest of the wallet. She further testified that she could definitely say, based on her visual examination, that there was blood on the insert. However, the fingerprint would have been destroyed if tests had been conducted to conclusively determine whether the print was in blood and whether any enzymes were present that matched Ms. Bradford's blood. Rather than destroy the fingerprint, Ms. Owens preserved the print using a super glue process. A St. Louis Police officer and a fingerprint expert from the FBI both testified that the fingerprint conclusively matched that of Mr. Grim's right thumb. [4] The FBI fingerprint specialist also testified that it is impossible to leave a fingerprint in dried blood. However, there was no evidence about the length of time it takes blood to dry, whether in small amounts, such as was on the wallet, or in larger amounts, such as were found in the bedroom and in the hallway, under the body. Officer Kroeck, the first evidence technician to arrive at the scene, did testify that the blood was dry when he got there, but that was at 11:34 p.m., about an hour after the body was discovered. Following the arguments based on this evidence, the jury deliberated for about six hours and returned a guilty verdict on the burglary count but reported that they had not reached verdicts on the other charges. After receiving a hammer instruction, [5] they went back to deliberate further on the other two counts. A little more than five hours later, they returned guilty verdicts on the murder and armed criminal action charges. [6] We must now determine whether the evidence supports the verdicts.
+In considering whether the evidence is sufficient to support the jury's verdict, we must look to the elements of the crime and consider each in turn. Under the Dulany standard, we are required to take the evidence in the light most favorable to the State and to grant the State all reasonable inferences from the evidence. We disregard contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Taking the evidence in this light, we consider whether a reasonable juror could find each of the elements beyond a reasonable doubt. In this case, we believe a reasonable juror could find beyond a reasonable doubt that Mr. Grim was guilty of second degree murder. The State chose to submit the charge of second degree murder in the disjunctive, permitting the jury to convict if it found that Mr. Grim aided and encouraged another person in committing the murder or if it found that Mr. Grim committed the murder himself. [7] For the sake of clarity, we will discuss the two disjunctive theories separately. First, the jury could have found that Mr. Grim was guilty as a principal. Essentially, the instruction required the jury to find 1) Mr. Grim stabbed Ms. Bradford to death and 2) it was his purpose to cause serious physical injury or death. The testimony of the medical examiner directly supported the conclusion that someone stabbed Ms. Bradford to death. The second element of the crime is supported because the evidence of the nature of the attack supports the conclusion that the attacker intended to cause Ms. Bradford serious physical injury; a person stabbing an elderly woman four times with a sharp object could scarcely intend anything less. The remaining issue is whether there is sufficient evidence to support a conclusion that it was Mr. Grim who stabbed Ms. Bradford. The evidence regarding the thumbprint on the wallet provides support for concluding that Mr. Grim was the one who stabbed Ms. Bradford. Because fingerprints are unique, it is possible for experts to compare a latent print found on an object with prints on file and establish the identity of the person who left the latent print. In this case, the experts were thorough in their explanation of how fingerprints worked and how the print found on the wallet matched the thumb of Mr. Grim. A fingerprint can also prove presence at a particular place because prints are left through physical contact between people and things. If there is adequate evidence of where the object was when the person left the print, the print is evidence that the person was in the same place. The wallet was found inside Ms. Bradford's house following her murder and contained a picture of her long dead husband. From these facts the jury could conclude that the wallet was in the house before the murder, during the murder, and after the murder until the police took it to the lab. This conclusion is all the more reasonable because it is overwhelmingly improbable that anyone breaking into Ms. Bradford's home would bring along a wallet containing a picture of her late husband and then leave it behind for the police to find. This conclusion in turn supports the conclusion that Mr. Grim was inside the house when he left the print. A fingerprint, by itself, normally proves little more than identity and presence. However, in some cases the circumstances surrounding a print or the peculiar location or nature of the fingerprint provide additional evidence of how, when, or why the person touched the object. For example, in State v. Boyington, 831 S.W.2d 642 (Mo. App.1992), a bloody palmprint was found on the inside of a car trunk that contained a bullet-riddled corpse. This sort of location of a print tends to show that the person making the print was involved in the murder both because the print was in blood and because the print was inside the trunk with the body. In this case, the jury could conclude that the print was made in Ms. Bradford's blood. As a preliminary matter, the jury could conclude that the blood on the wallet was Ms. Bradford's. Ms. Bradford was stabbed to death and found face down in a pool of blood. There was blood on the floor in the bedroom and some blood on the walls near her body. Given the nature of the murder, the jury could conclude that all of the blood surrounding the body belonged to Ms. Bradford. Further, the laboratory tests indicated that the blood on the coin flap of the wallet matched Ms. Bradford's blood, at least as to the four enzymes that were testable on the wallet. Absent any other reasonable source of blood, the logical and sound inference from the evidence was that the blood on the coin flap of the wallet was Ms. Bradford's. The conclusion that the thumbprint was made in Ms. Bradford's blood follows from this conclusion because Ms. Owens' testimony that the fingerprint looked the same as the blood on the rest of the wallet supports the conclusion that it was the same; i.e., it was blood and it was Ms. Bradford's blood. In addition, Ms. Owens testified directly based upon her visual examination that there was blood on the insert. Though this testimony might not have the weight of the chemical tests performed on the other blood, on review we consider the evidence favorable to the State to be true. Thus, the print was made in Ms. Bradford's blood. Suppose that the police had caught Mr. Grim in the house minutes after the murder. The testimony of police officers that Mr. Grim had blood on his hands would be admissible for the purpose of showing that Mr. Grim committed the murder. The fact that there was blood on Mr. Grim's thumb would tend to prove that Mr. Grim committed the murder. Other inferences would be possible; having blood on his thumb would also be consistent with trying to assist Ms. Bradford or trying to determine whether she was dead. However, it is left to the jury to resolve which is true. In this case, there is no direct testimony that Mr. Grim had the victim's blood on his hands. However, there is evidence from which the jury could conclude that Mr. Grim was standing only a few feet from the dead body and that he left a print in the victim's blood. Of course, we are not deciding the admissibility of this evidence. Rather, we are faced with the question of whether this thumbprint in blood is enough to support the conclusion that Mr. Grim stabbed Ms. Bradford. That the print was in blood supports a number of inferences. One reasonable inference is that Mr. Grim got blood on his thumb as he held the knife and stabbed Ms. Bradford in the chest and arm. Another inference is that Mr. Grim came into the house after the murder, but before the blood was dry, touched some wet blood, and then touched the inside of the wallet. However, we are bound to consider the inferences favorable to the State unless the contrary inference is such that it would necessarily give rise to a reasonable doubt in a reasonable juror's mind. See Dulany, 781 S.W.2d 52, 55. Nor should we consider this thumbprint in isolation from the other circumstances. To reach any of the pools of blood, a person coming through the back door would have to step over the body and walk into the bedroom, or would have to reach under Ms. Bradford's head or chest. Even the blood on the floor and walls is confined to areas immediately around the body and is in relatively small amounts. Further, the testimony that a fingerprint cannot be made in dried blood limits, to a certain extent, the time during which Mr. Grim might have wandered into the house and left his print. These circumstances reduce the persuasive force of the argument that Mr. Grim came in later and got blood on his thumb in some way other than by participating in the killing. Further, his print was left inside a wallet that was found closed. If he came along later, Mr. Grim chose to thumb through Ms. Bradford's wallet, close the wallet, lay it on the table, and leave without telling anyone about the crime. While this is a permissible inference, the question of which version of the facts actually happened is precisely the sort of issue that should be left to a jury to decide. The bloody thumbprint inside Ms. Bradford's wallet gives rise to a reasonable inference that Mr. Grim was involved in the murder. There are other potential inferences, but they are not so believable and inescapable as to convince us that they would give rise to a reasonable doubt in the mind of a reasonable juror. The surrounding circumstances further reduce the believability and the validity of the innocent inferences. If we voted as jurors rather than judges, we might well vote not guilty on this charge, but our role is fixed by the rule from Dulany . We decline to force ourselves into the posture of a thirteenth juror. We hold that the evidence in this case was sufficient to support the conclusion that Mr. Grim stabbed Ms. Bradford and, thus, was sufficient to support the conviction under the first theory of second degree murder. The second theory was based upon Mr. Grim's liability for aiding and encouraging or participating in the murder. Essentially, the jury had to find 1) someone else stabbed Ms. Bradford, 2) the person acted with the intent to cause serious physical injury, and 3) with the purpose of furthering the commission of the murder, Mr. Grim acted together with or aided and encouraged the other person. The first two elements are adequately supported by the evidence; Ms. Bradford was stabbed by someone, and whoever did it intended serious physical injury. The third element was supported by the evidence that the thumbprint was in Ms. Bradford's blood. One reasonable inference from this piece of evidence was that Mr. Grim actually stabbed Ms. Bradford. Another reasonable inference is that he helped the person that had the knife. The same innocent inferences described with respect to the first theory are relevant here but are, again, merely possible inferences and not necessary ones. A reasonable juror could have concluded beyond a reasonable doubt that Mr. Grim committed the crime of second degree murder, either through his own actions or by assisting another in the crime. The bottom line of the dissent's reasoning is that the inference to be drawn from the evidence that Mr. Grim was present before and at the time the murder was committed is of equal validity with the inference that sometime after the murder but before the blood dried, the defendant wandered into Ms. Bradford's backyard, saw the open door, entered and was confronted by the murder scene, in some manner acquired blood on his thumb, opened the billfold and made the thumbprint, then closed the billfold and left. We believe there are two fallacies in the dissent's rationale. First, these two inferences are not equally valid, the latter being so unique and unusual as to be implausible; and, second, we think that the dissent has ignored the requirement that the Court accept[] as true all the evidence favorable to the state, including all favorable inferences drawn from the evidence.... Dulany, 781 S.W.2d at 55. If an appellate court sets itself up to select between two or more acceptable inferences, it ceases to function as a court and functions rather as a juror, actually a super juror with veto powers. It is not the function of the court to decide the disputed facts; it is rather the court's function to assure that the jury, in finding the facts, does not do so based on sheer speculation. The bloody thumbprint of the defendant is adequate and sufficient evidence of the defendant's presence in Ms. Bradford's house at the time of her murder. Given that single fact and the physical evidence in this case, it is reasonable for a juror to conclude beyond a reasonable doubt that the defendant was guilty of second degree murder. While we have based our decision upon the law as stated in Dulany and the unique facts of this case, our decision is not entirely unprecedented; two cases decided under the circumstantial evidence rule are substantially similar. In State v. Maxie, 513 S.W.2d 338 (Mo.1974), a division of this Court faced a case with similar facts and upheld the sufficiency of the evidence to support second degree murder. In Maxie , the defendant's thumbprint was found on a cardboard box top in the victim's apartment amid various papers and debris scattered around the scene. While the defendant in Maxie did not leave his print in blood, he testified that he had never seen the outside of the apartment building, the inside of the apartment, the victim, the crime scene, or the box top. As explanation for the print on the box top, the defendant argued that he might have picked up the piece of cardboard and put it in the trash, from which the victim or her husband could have picked it up and brought it into their home. The jury was essentially left with two possible conclusions as to what happened, and the trial became a believability contest. In such a situation, this Court held that the evidence supported the jury's verdict. Even closer to the case at bar is State v. Gales, 507 S.W.2d 35 (Mo.App.1974). In Gales , an elderly woman who lived alone in the city of St. Louis was found murdered in her home. The defendant's fingerprint was found on a jewelry box in the house, and the evidence established that the defendant had some of the victim's property in his possession shortly before her body was discovered. The defendant's print was not in blood, so the print was less probative on the issue of involvement in the murder. [8] Although the police found the house locked up and had to break open a back door to enter the house and discover the body, the jury in Gales still had to find that the defendant had been present during the murder. In Gales , the defendant's possession of some of the victim's property was probative on the issue of whether the defendant had been inside the house but did not bear on the issue of when he was in the house. On evidence essentially equivalent to that in the present case, i.e., the fingerprint, the jury found, and the evidence supported the finding that, the death occurred in connection with the robbery. The evidence in this case was sufficient to support Mr. Grim's conviction for second degree murder.
+In this case, the charge of armed criminal action was submitted by reference to the instruction for murder. As we have just explained, the evidence was adequate to support the conviction for second degree murder under either theory of liability. For the conviction for armed criminal action to be proper, the evidence had to support the additional finding that the murder was committed by or with or through the use or assistance or aid of a dangerous instrument. [9] The evidence in this case supported the conclusion that Ms. Bradford was stabbed with a sharp object, probably a knife. That evidence is sufficient to support the additional element contained in the crime of armed criminal action.
+As noted, a fingerprint usually proves little more than presence of a person in a particular place. Sometimes, however, presence in a particular place is a violation of the criminal code. There are a number of cases where a fingerprint supplemented with little else has been held sufficient to support a conviction for a crime focusing primarily on presence of the defendant in a forbidden place. See, e.g., State v. Schleicher, 442 S.W.2d 19 (Mo. 1969) (burglary); State v. Anderson, 671 S.W.2d 383 (Mo.App.1984) (burglary); State v. Sanders, 619 S.W.2d 344 (Mo.App.1981) (burglary); State v. Clemmons, 579 S.W.2d 682 (Mo.App.1979) (tampering); State v. Parker, 535 S.W.2d 126 (Mo.App.1976) (burglary). As to the charge of first degree burglary, the jury had to find beyond a reasonable doubt that 1) Mr. Grim knowingly entered unlawfully Ms. Bradford's house, 2) that he did so for the purpose of stealing, and 3) that while Mr. Grim was in the house, Ms. Bradford was there too and was still alive. [10] The first element, unlawful entry, is supported by the evidence provided by the thumbprint that Mr. Grim was in the house during the murder, and the evidence that the latch was broken from the screen door. The fact that Mr. Grim's thumbprint is on the wallet supports the conclusion that Mr. Grim had the intent to steal when he entered the house because it supports the inference that he looked for things of value while in the house. The third element of first degree burglary is also supported because, as explained with regards to the murder charge, the fact that the print is in Ms. Bradford's blood supports the conclusion that Mr. Grim participated in the murder. If Mr. Grim was in the house while Ms. Bradford was being stabbed, then Mr. Grim was in the house while Ms. Bradford was in the house. The conviction for first degree burglary is sufficiently supported that we will not disturb it on appellate review. Because Mr. Grim's convictions were adequately supported by the evidence, we deny his first point and turn to the second.",sufficiency of the evidence
+52,2639108,1,5,"[¶ 20] All parties agree that the certificates to store water in Buffalo Bill Reservoir were properly issued to the BOR, adjudicated by the state, and confirmed by the district court. This dispute arises because the Stutzmans are dissatisfied with the manner in which the stored water has been administered by the BOR. Specifically, they allege the BOR improperly released stored water during the winter for the state's in-stream flow permit which carries a much more recent priority date (1975) than the BOR's certificates (1904 and 1905) through which they claim implied secondary rights. The Stutzmans claim the release resulted in less stored water available in the irrigation season. We note the Stutzmans do not allege that they were denied any specific amount of water to which they were entitled under their patents and federal contracts. Rather, they raise the broader question of who owns or controls the water stored in a federal reclamation project. The answer to that complex question depends upon the context in which it is addressed and a variety of facts and circumstances. See, Reed D. Benson, Whose Water Is It? Private Rights and Public Authority Over Reclamation Project Water, 16 Va. Envtl. L.J. 363 (1997). As the Benson article described it, The entire package of rights in reclamation project water can be thought of, as with other property rights, as a bundle of sticks. In most cases, the sticks of the project water bundle are divided among at least four entities: the federal government, the state, the district, and the end user. Id. at 366. [¶ 21] The Stutzmans' assertion that they have the right to control a proportionate share of the stored water involves two of the sticks in the bundle—one over which the district court had jurisdiction, and one over which it did not. To the extent the Stutzmans sought to enforce their rights against the United States pursuant to the federal patents and contracts, the district court lacked jurisdiction. The McCarran Amendment provides only limited consent to the exercise of state court jurisdiction over the United States. Specifically, the amendment waives the federal government's right to plead that state laws are inapplicable or that it is not subject to such laws by reason of its sovereignty, but only in cases involving the adjudication and administration of water rights where the United States is the owner of such rights and is a necessary party to the action. 43 U.S.C. § 666(a). The amendment does not give consent to claims against the federal government for enforcement of contracts to which the United States is a party. The district court properly found it had no jurisdiction over the Stutzmans' claims to the extent they sought to enforce such contracts. [¶ 22] However, the district court had jurisdiction to determine whether the Stutzmans had a legitimate claim of a state water right. Some of the facts relative to their status as individual irrigators in a federal reclamation project could be relevant to the determination of their state water right claims. If so, the district court certainly could consider those facts in the application of state law.",jurisdiction
+53,879614,1,1,"The first issue relates to whether the District Court had jurisdiction under the time restraints of Rule 60(c), M.R.Civ.P. to set aside the judgment effect of the filing of a warrant of distraint. Rule 60(c), M.R. Civ.P. provides: Time for determining motions. Motions provided by subdivision (b) of this rule shall be determined within the times provided by Rule 59 in the case of motions for new trials and amendment of judgment and if the court shall fail to rule on the motion within the 45 day period, the motion shall be deemed denied. The Department argues that the time elapsing between the date of the father's motion for relief from judgment, February 8, 1985, and the hearing on the motion, March 28, 1985 was 48 days, and the order itself did not come down until July 30, 1986, and that thereby the District Court lost jurisdiction of the cause. In cases for collections for delinquent taxes, or the recoupment of AFDC payments as here, where the collection is based upon warrants of distraint, a judgment as such is not actually entered by a District Court. Instead, the Department of Revenue files a warrant of distraint with the Clerk of the District Court, whose duty is then to file the warrant in the judgment docket with the name of the taxpayer or parent listed as the judgment debtor. Section 15-1-704, MCA. Upon the filing thereof, there is a lien against all real and personal property of the delinquent taxpayer or nonpaying parent in the county where the warrant is filed. Section 15-1-701(2), MCA. Thus, the filing of the warrant by the Department with the District Court has the same lien effect as a properly docketed judgment and the Department may collect delinquent taxes and enforce the tax lien or recoup AFDC funds in the same manner as a judgment is enforced. Section 15-1-701(2), MCA; § 40-5-241, MCA. In this case, the effect of the motion of Kenneth for relief from judgment and a stay of enforcement is the same as the situation of a person seeking relief from a judgment of the District Court under Rule 60(b), M.R.Civ.P. It is, however, provided in Rule 60(b) that the rule ... does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as may be required by law ... The time limitations provided in Rule 60(c) must be read in light of the principle set out in Rule 60(b), which provides for such an independent action. The residual power of the District Court therein preserved is a complete reservation of the District Court's independent power. Its purpose is to protect equity by not enforcing a judgment obtained against the public conscience. Thomas v. Savage (1973), 161 Mont. 192, 505 P.2d 118, 120; Elliston Lime Company v. Prentice Lumber (1971), 157 Mont. 64, 483 P.2d 264. The residual power portion of Rule 60(b) was enacted particularly to prevent an injustice. For that reason, we hold that Kenneth's motion to set aside enforcement of an unserved warrant of distraint was an independent action, and thus is not subject to the 45 day time limitation of Rule 60(c), M.R. Civ.P.",jurisdiction
+54,1788220,1,6,"For the reasons stated herein, Martin's appeal is dismissed. APPEAL DISMISSED.",conclusion
+55,1224040,1,2,"This case comes before this Court as an appeal from the Circuit Court of Gilmer County, which affirmed the decisions made by the West Virginia Education and State Employees Grievance Board. The appeal provisions of W. Va.Code § 29-6A-7 (1998) (Repl.Vol.2004) [6] provide that an appeal may be taken to a circuit court where the final grievance decision: (1) Is contrary to law or a lawfully adopted rule or written policy of the employer; (2) Exceeds the hearing examiner's statutory authority; (3) Is the result of fraud or deceit; (4) Is clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (5) Is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. W. Va.Code § 29-6A-7. More specifically articulated by this Court is the directive that [a] final order of the hearing examiner for the West Virginia Education and State Employees Grievance Board, made pursuant to W. Va.Code, 29-6A-1, et seq. [(1988) (Repl. Vol.2004)], and based upon findings of fact, should not be reversed unless clearly wrong. Syl., Quinn v. West Virginia N. Comty. Coll., 197 W.Va. 313, 475 S.E.2d 405 (1996). Further explaining this Court's role in the review process, we have previously stated: in reviewing an ALJ's [Administrative Law Judge's] decision that was affirmed by the circuit court, this Court accords deference to the findings of fact made below. This Court reviews decisions of the circuit [court] under the same standard as that by which the circuit [court] reviews the decision of the ALJ. We must uphold any of the ALJ's factual findings that are supported by substantial evidence, and we owe substantial deference to inferences drawn from these facts. . . . We review de novo the conclusions of law and application of law to the facts. Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995). This instruction is consistent with our observation that rulings upon questions of law are reviewed de novo Quinn, 197 W.Va. at 316, 475 S.E.2d at 408 ( citing Bolyard v. Kanawha County Bd. of Educ., 194 W.Va. 134, 136, 459 S.E.2d 411, 413 (1995) (per curiam)). Specifically, [a]lthough we accord great deference to the findings of fact of the West Virginia Educational Employees Grievance Board,[ [7] ] we review, de novo, questions of law. Syl. pt. 2, Maikotter v. University of W. Va. Bd. of Trs., 206 W.Va. 691, 527 S.E.2d 802 (1999) (footnote added). Because this Court reviews decisions of the circuit court under the same standard used by the circuit court in reviewing the decisions of an ALJ, it is clear that this Court employs a combination of deferential and plenary review. More particularly, [g]rievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo. Syl. pt. 1, Cahill v. Mercer County Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000). Mindful of these applicable standards, we now consider the substantive issues raised herein.",standard of review
+56,2594137,1,4,"[¶ 11] Magallanes contends that his conviction for first degree murder cannot stand because: (1) the State failed to conclusively prove Lopez's death was caused by the bullet wounds to his head; (2) no witness actually saw Magallanes shoot Lopez; and (3) there was no physical evidence linking Lopez to the crime. [2] In reviewing Magallanes' sufficiency of the evidence claim, we must determine whether a rational jury could have found the essential elements of the crime beyond a reasonable doubt. Vlahos v. State, 2003 WY 103, ¶ 36, 75 P.3d 628, 637 (Wyo.2003). We do not consider conflicting evidence presented by Magallanes, and afford to the State every favorable inference that may be reasonably and fairly drawn from the evidence it presented. Id., ¶ 36, 75 P.3d at 637-38. We have consistently held that it is the jury's responsibility to weigh the evidence, assess the credibility of the witnesses and resolve conflicts in the evidence. Leyo v. State, 2005 WY 92, ¶ 11, 116 P.3d 1113, 1116-17 (Wyo.2005). We will not substitute our judgment for that of the jury when applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals could have come to the same result as the jury did. Id.; Vlahos, ¶ 36, 75 P.3d at 638. [¶ 12] Magallanes' complaint concerning the cause of Lopez's death rests largely on selected portions of the testimony of Dr. Stephen Cina, the forensic pathologist who autopsied Lopez. Dr. Cina testified he could not determine whether Lopez died before or after being run over by Hampton's vehicle, but that Lopez would not have been exposed to that vehicle had the gunshots not left him incapacitated and lying in the roadway. Magallanes argues this latter conclusion is unsupported by the record, speculating that Lopez may have been shot someplace other than the road and somehow managed to move himself onto the road after being shot twice in the head. [¶ 13] In advancing this argument, Magallanes ignores the evidence that after his brother pulled over on Campstool Road — presumably on the right hand side of the road — Rojas remained seated on the right hand side of the rear passenger seat. Thus, when Magallanes, who was seated behind the driver, pulled Lopez out of the back seat and began to beat him, those activities can reasonably be inferred to have occurred on the road. Magallanes also ignores that the .25 caliber shell casings were also found on Campstool Road in close proximity to Lopez's body. [¶ 14] Magallanes further fails to note evidence indicating that Hampton's vehicle did not hit Lopez's body until shortly before 2:00 a.m., which was approximately the same time Sophia and her friend embarked for Greeley to take Teniente and Rojas home and approximately forty-five minutes after Magallanes shot Lopez. That lapse in time is significant because, although Dr. Cina testified that the gunshot wounds to the brain might not have immediately resulted in death, and that the injuries caused to Lopez's body by Hampton's vehicle occurred either shortly before or shortly after Lopez expired, he also testified the bullet wounds would have incapacitated Lopez. Furthermore, Dr. Cina testified that Lopez had aspirated blood from those wounds and, from the amount of such blood discovered, Lopez could have been gasping for breath only for a short time after being shot. [¶ 15] From that evidence, a rational jury could have reasonably inferred that Lopez was shot in the roadway and left there to die. A rational jury also could have reasonably concluded that the bullet wounds immediately rendered Lopez incapable of moving and, after a few minutes, no longer capable of gasping for breath, and that death's door was swinging shut, if not already closed, when Hampton encountered him that morning. We find ample evidence in the record to support a reasonable conclusion that Lopez's death was a direct result of the bullets Magallanes discharged into his head. Magallanes has not convinced us otherwise. [¶ 16] Similarly unpersuasive is Magallanes' claim that the evidence supporting his murder conviction is inadequate because neither of the two eyewitnesses testifying at trial, Jesse and Rojas, stated they actually saw him fire the bullets into Lopez's head. The record reveals that both witnesses testified Magallanes was the last person to handle the gun prior to the shooting. Jesse testified Lopez was on the ground when Magallanes pointed the gun towards the ground and fired it twice. Additionally, Rojas testified that, after observing Magallanes fumbling with the gun, he saw him go towards Lopez and then heard two gun shots. Rojas further testified that when Magallanes returned to the car following the shooting, he stated that he had shot Lopez both in the forehead and the back of the head. A rational jury could easily conclude from that evidence that it was Magallanes who killed Lopez. [¶ 17] Magallanes' final claim, as set forth in the title of his argument, is that there is no physical evidence linking [Lopez] to the crime. Magallanes, however, has not mentioned, let alone developed, this claim in the body of his argument. Needless to say, we will not address it.",issues
+57,2517385,1,3,"We review the trial court's ruling on Security Life's C.R.C.P. 59 post-trial motion for an abuse of discretion. Buckley Powder Co. v. State, 70 P.3d 547, 564 (Colo. App.2002); see Blue Cross of W.N.Y. v. Bukulmez, 736 P.2d 834, 840 (Colo.1987). Likewise, we review the trial court's ruling on Security Life's motion for attorney fees for an abuse of discretion. Haystack Ranch, LLC v. Fazzio, 997 P.2d 548, 556 (Colo.2000). A trial court abuses its discretion if its actions are manifestly arbitrary, unreasonable, or unfair. Colo. Nat'l Bank of Denver v. Friedman, 846 P.2d 159, 166-67 (Colo.1993).
+A trial court may amend a jury verdict regarding matters of form but not regarding matters of substance. Harrison Constr. Co. v. Nissen, 119 Colo. 42, 47, 199 P.2d 886, 888-89 (1948). The rationale of this rule is obvious. If a trial court is permitted to amend a jury verdict regarding matters of substance, then the court could arbitrarily set aside a verdict of a jury in its entirety, and make a contrary finding in a law action for itself, and render judgment upon it. Bartlett v. Hammond, 76 Colo. 171, 175, 230 P. 109, 110 (1924). A change of substance is a change that affects the underlying determination made by the jury, while a change of form is one that corrects a technical error made by the jury without affecting the underlying determination made by the jury. Weeks v. Churchill, 44 Colo-App. 520, 615 P.2d 74, 75 (1980). Therefore, if an inconsistency in a jury verdict demonstrates that the jury did not understand the directions, was misled, or ignored certain instructions, then any change in the verdict made by the court is a change of substance and not a change of form. Id. at 76. However, if an inconsistency in a jury verdict can be resolved based upon the instructions given to the jury and without violating the intent of the jury, then such a change is a change of form. Id. (citing Morgan v. Gore, 96 Colo. 508, 510-12, 44 P.2d 918, 919-20 (1935)). Because an appellate court is bound by the jury's findings, a jury verdict will not be reversed for inconsistency where the jury has been properly instructed by the trial court and where the record contains sufficient competent evidence to support the finding. Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1259 (Colo.1994). To determine whether the jury could have logically reached its verdict, the appellate court must review the jury instructions, the jury verdict forms, and the evidence. Id. Furthermore, the appellate court must attempt to reconcile the jury's answers to a special verdict, [4] if it is at all possible, based upon the evidence and the instructions given. Id. If there is a view of the case that makes the jury's answers consistent, then the appellate court must reconcile the special verdict in that way. Id. Here, the jury instructions and interrogatories contained in the verdict form asked the jury to determine the value of Parcel B on the date of trial, at a time when the School District had possessed Parcel A for nearly a year. Instruction No. 2 explained to the jury that the condemnation proceeding involved two scenarios, one which was certain and in which possession had already occurred, and another which was hypothetical. In the first scenario, in which possession occurred before the date of trial, the School District would condemn Parcel A on February 19, 2004, the date the School District took possession of Parcel A. In the second and hypothetical scenario, the School District would condemn Parcel A on February 19, 2004, thus resulting in damages to Parcel B, and would then condemn Parcel B on February 7, 2005, the date of trial. Having explained these two scenarios, Instruction No. 2 summarized the jury's task as two-fold: first, to determine the value of Parcel A and the resulting damages to Parcel B on the date the School District took possession of Parcel A; and second, to determine the value of Parcel B on the date of trial. Consistent with the explanations and requirements set forth in Instruction No. 2, the interrogatories contained in the verdict form asked the jury for the value of Parcel A on the date the School District took possession of Parcel A; the value of the damages to Parcel B; and the value of Parcel B on the date of trial. As to the value of damages to Parcel B, Instruction No. 11 told the jury that [a]ny finding of damages to the residue shall not affect your determination of the value of the property actually taken. Thus, Instruction No. 11 prohibited the jury from adding the value of the damages to Parcel B to the value of Parcel B on the date of trial. Moreover, the interrogatory regarding the value of Parcel B specifically asked for the value of Parcel B on the date of trial. For these reasons, the jury determined that the value of Parcel B on the date of trial was the value of Parcel B as damaged by the School District's possession of Parcel A. In other words, the interrogatories contained in the verdict form told the jury that the School District already possessed Parcel A, which resulted in damages to Parcel B, and asked the jury to value the damages to Parcel B. Moreover, Instruction No. 11 prohibited the jury from adding the value of the damages to Parcel B to the value of Parcel B on the date of trial. As such, the jury accurately and appropriately determined that the value of Parcel B as it existed on the date of trial was the value of Parcel B as damaged by the School District's possession of Parcel A. Following the requirements set forth in the jury instructions and answering the interrogatories contained in the verdict form, the jury determined that the value of Parcel A on the date the School District took possession of Parcel A was $5,619,240; the value of the resulting damages to Parcel B was $2,000,000; and the value of Parcel B on the date of trial was $1,655,280. The trial court ruled that the value of Parcel B for the purpose of condemning Parcel B is the sum of the value of Parcel B as damaged by the School District's possession of Parcel A and the value of the damages to Parcel B. This equation makes the value of Parcel B whole, as if it had not been damaged by the School District's possession and taking of Parcel A on February 19, 2004, and is easily determined by adding the value of Parcel B as damaged, $1,655,280, to the value of the damages to Parcel B, $2,000,000, which equals $3,655,280. The logic of this calculation is bolstered by Instruction No. 11, which required the jury to determine the value of the damages to Parcel B by subtracting the value of Parcel B after the School District's possession of Parcel A from the value of Parcel B before the School District's possession of Parcel A. Thus, to determine that the value of the damages to Parcel B due to the School District's possession of Parcel A was $2,000,000, the jury first had to determine that the value of Parcel B before the School District's possession of Parcel A was $3,655,280 and that the value of Parcel B after the School District's possession of Parcel A was $1,655,280. Viewing the trial court's ruling mathematically illustrates this point. For the condemnation of Parcel A, the trial court ordered the School District to pay $5,619,240 for Parcel A, plus $2,000,000 for the resulting damages to Parcel B. Because the verdict form states that Parcel A is actually taken, the School District was required to pay Security Life $7,619,240 for the condemnation of Parcel A, which the School District has possessed since February 19, 2004. For the condemnation of Parcel B, the trial court ordered the School District to pay Security Life an additional $1,655,280 because the jury determined that the value of Parcel B, as it existed on the date of trial and as damaged by the School District's possession of Parcel A, was $1,655,280. Hence, to acquire both Parcel A and Parcel B through its power of eminent domain, the School District must pay Security Life $9,274,520, which is the sum of the value of the two distinct and separable condemnations as determined by the jury. Under either condemnation scenario, the jury, in its answers to the interrogatories contained in the verdict form, logically accounted for the damages to Parcel B due to the School District's possession of Parcel A on February 19, 2004. In the first scenario, in which possession had already occurred, the School District would take Parcel A, thus resulting in damages to Parcel B, and would pay Security Life $7,619,240, which is the sum of the value of Parcel A on the date the School District took possession of Parcel A and the value of the resulting damages to Parcel B. In the second and hypothetical scenario, the School District would take Parcel A on February 19, 2004, and would then take Parcel B on the date of trial. In the second scenario, the School District would pay Security Life an additional $1,655,280, which is the value of Parcel B as it existed on the date of trial — that is, the value of Parcel B less the damages that had already occurred due to the School District's possession and taking of Parcel A. At first blush, the facts of this case appear to be analogous with the facts in Boulder Valley School District R-2 v. Price, 805 P.2d 1085, 1092-94 (Colo.1991), rev'd on other grounds by Community Hospital v. Fail, 969 P.2d 667, 670 (Colo.1998), in which we held that the court of appeals' attempt to correct an inconsistent jury verdict was a change of substance and not one of form because the jury instructions and verdict forms were misleading. There, we explained that the jury was presented with two verdict forms, one for each defendant. Id. at 1093. Because the jury in Boulder Valley had no jury instruction stating that it was necessary to mark only one verdict form for the teacher, or that, in the alternative, only one defendant was liable, we concluded that the jury had been misled by the jury instructions and verdict forms. Id. On these grounds, we remanded the case for a new trial. Id. at 1094. Closer review reveals that the facts of Boulder Valley are distinguishable from the facts of this case. In Boulder Valley, the court of appeals changed the jury verdict in a way that imposed damages on a defendant even though the jury had indicated that the defendant was liable for $0 in damages. Id. at 1093-94. Here, the trial court imposed judgment based on the sum of two values that were determined by the jury. In this case, the trial court changed neither the values provided by the jury in the verdict form nor the substance of any interrogatory contained in the verdict form. Rather, the trial court used the jury's values to determine the answer to a question that was not presented to the jury regarding the second and hypothetical scenario: What is the total amount of compensation owed by the School District to Security Life for the taking of both Parcel A and Parcel B? On that question, the trial court determined that the answer was the sum of the three values provided by the jury in the verdict form, or $9,274,520. The principles set forth in Hock require us to review the jury instructions, the jury verdict forms, and the evidence in an attempt to reconcile the jury's answers to a special verdict based upon the evidence and the instructions given. 876 P.2d at 1259. Following these principles and for the reasons stated above, we conclude that the jury followed the requirements set forth in the jury instructions and answered the interrogatories contained in the verdict form accordingly, and that the trial court's ruling reflected the jury's intent. Hence, we hold that the trial court's ruling was a permissible change of form because it did nothing more than confirm what the jury had already determined: that if the School District wanted to condemn all 138 acres, then it must compensate Security Life first for taking Parcel A on February 19, 2004, which resulted in damages to Parcel B, and then for taking Parcel B on February 7, 2005.
+The School District argues that the court of appeals incorrectly awarded interim damages to Security Life as compensation for the condemnation of its entire property. Both parties agree that because the School District will condemn all 138 acres, Security Life is not entitled to damages. See § 38-1-115(2), C.R.S. (2007) (No findings as to damages . . . shall be required in cases involving the total taking of property.). Although the court of appeals does not use the term interim damages, it remanded the case to the trial court to determine the value of damages to Parcel B for the period between the date the School District took possession of Parcel A and the date the School District took possession of Parcel B. We vacate this part of the court of appeals' judgment to the extent that it can be construed to create a category of so-called interim damages.
+Under section 38-1-122(1.5), a landowner is entitled to attorney fees if the condemnation award equals or exceeds 130 percent of the last written offer given to the landowner prior to the filing of the condemnation proceeding: [I]n addition to any compensation awarded to the owner in an eminent domain proceeding, the condemning authority shall reimburse the owner whose property is being acquired or condemned for all of the owner's reasonable attorney fees incurred by the owner where the award by the court in the proceedings equals or exceeds one hundred thirty percent of the last written offer given to the property owner prior to the filing of the condemnation action. (Emphasis added). The School District contends that the plain language of section 38-1-122(1.5) requires a court to disregard any written offer other than the one made prior to the filing of the petition in condemnation. Thus, the School District maintains that the final written offer in this case is its final offer to purchase Parcel A for $3,250,000, which was made four days before the School District filed its petition in condemnation. The School District further argues that the offer to purchase Parcel A should be modified to reflect its amendment to the petition in condemnation by prorating the offer, either by the square foot or by the square acre, to a proportional value of either $7,477,761.81 or $7,474,999 depending on which unit value is used in the calculation. In either case, the amount of compensation owed by the School District to Security Life for the condemnation of all 138 acres — $9,274,520, as confirmed by the trial court — would not equal or exceed 130 percent of the prorated last written offer, and Security Life would not be entitled to any attorney fees. In support of its position, the School District cites two court of appeals cases: E-470 Public Highway Authority v. Wagner, 77 P.3d 902, 903-05 (Colo.App.2003), and E-470 Public Highway Authority v. Kortum Investment Co., 121 P.3d 331, 332-34 (Colo. App.2005). There are no Colorado cases that interpret section 38-1-122(1.5) in situations such as the one in this case, where a condemning authority makes a final written offer before filing its petition in condemnation and then decides to amend the petition in condemnation in a way that changes the amount of property condemned. However, Wagner and Kortum Investment required the court of appeals to interpret identical language from section 43-4-506(1)(h)(II)(B), [5] which pertains to highway condemnation proceedings, and to apply that interpretation to situations in which the condemning authority amended its petition in condemnation. In Wagner, the E-470 Highway Authority made a written offer to purchase thirty-nine acres, which the landowner rejected, before filing a petition in condemnation to acquire the property. 77 P.3d at 903. The highway authority later amended its petition in condemnation to acquire only twenty-seven acres and an easement. Id. Because the highway authority did not make a new last written offer before it amended its petition, the trial court determined the value per acre represented by the written offer to purchase the thirty-nine acres and then reduced that offer by deducting the value of the acreage that the highway authority decided not to condemn. Id. at 904. On appeal, the court of appeals affirmed, finding that the trial court properly prorated the last written offer because the highway authority did not make a new last written offer based upon the changes in the amount of land. Id. at 905. In Kortum Investment, the E-470 Highway Authority made a written offer to purchase fourteen acres in fee, as well as an easement to use five and a half acres, which the landowners rejected. 121 P.3d at 332. The highway authority then filed a petition in condemnation to acquire the fourteen acres in fee as well as an easement to use the five and a half acres. Id. Subsequently, the highway authority amended its petition in condemnation to acquire the entire nineteen and a half acres in fee, and made a written offer to purchase the nineteen and a half acres in fee three days after filing the amendment, which the landowners rejected. Id. Based on the second written offer, the trial court awarded the landowner attorney fees. Id. The court of appeals held that the second written offer could not be considered a final written offer because the highway authority offered it three days after filing its amended petition, in contradiction to the plain language of the statute which requires final written offers to be made prior to the filing of the condemnation action. Id. Citing Wagner, the court of appeals held that the trial court should have prorated the highway authority's first written offer to a proportional value for the purchase of the entire property in fee. Id. at 334. In dicta, the court of appeals commented that it is unclear whether section 43-4-506(1)(h)(II)(B) either requires or permits a new last written offer when the condemning authority amends its petition in such a substantial manner as to warrant a conclusion that a taking of an essentially new or different character is at issue. Id. However, Wagner and Kortum Investment are distinguishable from this case because, unlike the condemnation proceedings in either Wagner or Kortum Investment, this case involves two distinct and separable condemnations that were tried in a single proceeding, and the School District made a final written offer both before filing its petition in condemnation to acquire Parcel A and before amending its petition in condemnation to acquire both Parcel A and Parcel B. Four days before it filed its petition in condemnation to acquire Parcel A, the School District made a final offer to purchase Parcel A for $3,250,000. Almost one month before it amended its petition in condemnation to acquire both Parcel A and Parcel B, the School District made a final offer to purchase both Parcel A and Parcel B for $6,564,492. Unlike the second written offer in Kortum Investment, which was made three days after the highway authority amended its petition in condemnation, the second written offer in this case was made almost one month before the School District amended its petition in condemnation. Section 38-1-122(1.5) defines the last written offer as the offer given to the property owner prior to the filing of the condemnation action. Given that this case involves two distinct and separable condemnations that were tried in a single proceeding, we conclude that section 38-1-122(1.5) contemplates the trial court's application of each written offer to the corresponding condemnation scenario. In the first scenario, the condemnation action occurred when the original petition was filed on January 16, 2004, four days after the School District's last written offer of $3,250,000 on January 12, 2004. The value of Parcel A and the value of the damages to Parcel B as determined by the jury, $7,619,240, exceeds 130 percent of the School District's last written offer of $3,250,000. In the second scenario, the condemnation action occurred when the petition was amended to include both parcels on June 15, 2004, following the last written offer of $6,564,492 for both parcels on May 18, 2004. The amount of compensation owed by the School District to Security Life for the condemnation of all 138 acres, as confirmed by the trial court to be $9,274,520, exceeds 130 percent of the School District's last written offer of $6,564,492. Hence, we hold that Security Life is entitled to attorney fees under section 38-1-122(1.5). Security Life requests attorney fees incurred on appeal and states section 38-1-122(1.5) as its legal basis for such fees. We direct the trial court to determine whether Security Life is entitled to attorney fees incurred on appeal and, if so, to determine the reasonable amount of those fees.",analysis
+58,2631850,1,3,"[¶ 8] An insurance policy constitutes a contract between the insurer and the insured. Helm v. Board of County Comm'rs, 989 P.2d 1273, 1275 (Wyo.1999). When called upon to determine the meaning of a contract, our focus is upon the intent of the parties. Wolter v. Equitable Resources Energy Co., 979 P.2d 948, 951 (Wyo.1999). The nature of the exercise depends upon the clarity with which the parties have memorialized their intent. Clarity and lack of ambiguity limit the exercise to one of interpretation marked by a simple reiteration of the parties' intent gleaned from within the four corners of the document. Sierra Trading Post, Inc. v. Hinson, 996 P.2d 1144, 1148 (Wyo.2000). [¶ 9] Only when a contract is ambiguous do we acquire license to construe that document by resort to rules of construction. Sinclair Oil Corp. v. Republic Ins. Co., 929 P.2d 535, 539 (Wyo.1996); Martin v. Farmers Ins. Exch., 894 P.2d 618, 620 (Wyo. 1995). An exception to construing insurance policies as other contracts has been observed by this court where the language of the policy is ambiguous. Ahrenholtz v. Time Ins. Co., 968 P.2d 946, 949 (Wyo.1998); State Farm Fire & Cas. Co. v. Paulson, 756 P.2d 764, 765 (Wyo.1988). Because insurance policies represent contracts of adhesion where the insured has little or no bargaining power to vary the terms, if the language is ambiguous, the policy is strictly construed against the insurer. Doctors' Co. v. Insurance Corp. of America, 864 P.2d 1018, 1024 (Wyo.1993) (citing St. Paul Fire & Marine Ins. Co. v. Albany County Sch. Dist. No. 1, 763 P.2d 1255, 1258 (Wyo.1988)). Ambiguity is found if indefiniteness of expression or double meaning obscure the intent of the parties, though disagreement between the parties as to the Agreement's meaning does not give rise to an ambiguity. Hansen v. Little Bear Inn Co., 9 P.3d 960, 964 (Wyo.2000). Whether there is ambiguity within the four corners of the contract is a question of law. Martin v. Farmers Ins. Exchange, 894 P.2d at 620.",standard of review
+59,1172923,1,1,"This appeal involves a dispute between an insurance carrier and a company it formerly insured over which of them will pay workers' compensation benefits to Donald Wolfer. The carrier provided workers' compensation insurance to Wolfer's employer when he was originally injured in 1979. Wolfer allegedly aggravated his injury in 1980 while working for his employer, then self-insured.",introduction
+60,900350,1,1,"[¶ 2.] Warren and Norma Pellegrin were married in 1975. Warren was seventy and Norma was sixty-three years old at the time of trial. Warren and Norma both had been previously married and have five and six adult children, respectively. They have no children by this marriage. [¶ 3.] At the time of their marriage, Warren was a graduate of SDSU and a school teacher, earning approximately $7,000 per year. Warren retired from teaching in 1991. In addition to teaching full time, he worked on the ranch at Enning, South Dakota, where the couple came to live within the first years of their marriage. Norma had a high school degree and worked two jobs—as a cook at the school and nights as a waitress. Norma also helped out on the ranch, including mowing and raking hay during the summer. Norma eventually acquired a college degree during the marriage and has been employed continuously as a school teacher since 1991. [¶ 4.] Warren and Norma have contrasting states of health. On the one hand, Warren has suffered from poor health. During the past six months, he has suffered from congestive heart failure and also a slight stroke. His poor health condition has caused him to retire from active ranching. On the other hand, Norma enjoys good health. [¶ 5.] The parties each brought assets into the marriage. Warren's notable assets at that time included 560 acres of pasture and cropland, eighteen cows and a pickup. Warren's net worth was reduced by debts of approximately $17,000. Norma owned a trailer home in Wall with an addition added to it, a 1975 Pontiac, and substantial amounts in CD's, savings and checking accounts. [¶ 6.] The ranch operation grew during the marriage. The parties purchased 80 acres of land from Warren's brother and 320 acres of pasture at Marcus (Marcus land), tripled their cattle herd, built buildings and improvements, and planted trees. [¶ 7.] Eventually, the marriage became strained and Warren filed for divorce on grounds of irreconcilable differences along with a request for a division of the parties' property. Norma counterclaimed, seeking divorce on alternative grounds of irreconcilable differences and extreme mental cruelty, and requested a property division as well. Warren stipulated that the decree of divorce could be entered in favor of both parties on the grounds of irreconcilable differences. However, Norma would not give her consent to a divorce on those grounds at the trial before the court on September 26 and 27, 1996. She stated she did not want a divorce, that she was too old to go through one, and that she filed for divorce just to protect herself. After refusing to stipulate to the divorce on grounds of irreconcilable differences at trial, counsel for Norma allowed Warren to lay grounds for an alternative theory for the divorce. Warren then proceeded with evidence in support of a divorce based on extreme cruelty. [¶ 8.] The trial court granted Warren a divorce on grounds of extreme cruelty and denied Norma's counterclaim on the same grounds. The court also found the value of the marital estate to be $222,355, after excluding a premarital allowance of $28,000 for Warren's family ranch [1] and a premarital allowance for the value of a trust of which Norma was a beneficiary. [2] The assets representing the $222,355 were divided by the court into substantially equal shares for each party. Norma brought this appeal raising the following issues: I. Whether Norma established grounds for a divorce on the basis of extreme mental cruelty. II. Whether the trial court's division of property and debts of the marriage was an abuse of discretion.",facts
+61,1293642,1,2,Did the special referee err in granting summary judgment to Cousins and Island Cabaret on the ground Appellants lacked standing?,issues
+62,4316338,1,1,"Kathleen Chafin sued two religious organizations, alleging that when she gave birth, these organizations kidnapped her newborn son and fraudulently concealed his adoption. Based upon the statute of limitations, the district court dismissed her amended complaint. Chafin contends that her allegation of fraudulent concealment tolled the statute. Because a pleading rule requires the facts of fraudulent concealment to be stated with particularity and because Chafin pled mere legal conclusions, dismissal was correct. Therefore, we affirm. - 96 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports CHAFIN v. WISCONSIN PROVINCE SOCIETY OF JESUS Cite as 301 Neb. 94",introduction
+63,4515871,1,4,"DNA Testing Act Pursuant to the act, a person in custody takes the first step toward obtaining possible relief by filing a motion in the court that entered the judgment requesting forensic DNA 2 Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016). 3 State v. Myers, 301 Neb. 756, 919 N.W.2d 893 (2018). 4 Id. 5 Id. - 717 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. ILDEFONSO Cite as 304 Neb. 711 testing of biological material.6 The court has discretion to either consider the motion on affidavits or hold a hearing.7 Under § 29-4120(5), the court shall order DNA testing upon a determination that (a)(i) the biological material was not previously subjected to DNA testing or (ii) the biological material was tested previously, but current technology could provide a reasonable likelihood of more accurate and probative results, (b) the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition, and (c) such testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced. Under the act, “exculpatory evidence means evidence which is favorable to the person in custody and material to the issue of the guilt of the person in custody.”8 Denial of Motion for DNA Testing Part of the defendant’s burden of proof is to provide the court with affidavits or evidence at a hearing establishing the three required factual determinations under § 29-4120(5).9 We have recognized that the showing needed to satisfy the requirement that DNA testing may produce noncumulative, exculpatory evidence is “relatively undemanding . . . and will generally preclude testing only where the evidence at issue would have no bearing on the guilt or culpability of the movant.”10 Although the threshold to obtain DNA testing is rather low, we 6 State v. Betancourt-Garcia, 299 Neb. 775, 910 N.W.2d 164 (2018). 7 Id. 8 § 29-4119. 9 See State v. Young, 287 Neb. 749, 844 N.W.2d 304 (2014). 10 State v. Buckman, 267 Neb. 505, 515, 675 N.W.2d 372, 381 (2004). - 718 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. ILDEFONSO Cite as 304 Neb. 711 agree with the district court that Ildefonso did not meet this minimal threshold. A court is not required to order DNA testing if such testing would not produce exculpatory evidence. In State v. Dean,11 we reasoned that “even if [the prisoner] is correct and DNA testing would not detect the presence of his DNA on the objects in question, the result would be at best inconclusive, and certainly not exculpatory.” The same is true here. Ildefonso asserts that his DNA will not appear on any of the items. But the absence of his DNA on some of the items would be consistent with the evidence and would not be exculpatory, particularly in light of the testimonies of Devore-Alexander, Reh, and Taylor and Ildefonso’s possession of the murder weapon at the time of his apprehension. Ildefonso essentially seeks DNA testing to corroborate Anderson’s original story. Ildefonso maintains that he was framed for the murder, and he argues that testing showing the DNA of Anderson, Fields, or Smith would raise serious doubts regarding the credibility of Devore-Alexander, Reh, and Taylor. One problem for Ildefonso is that the State’s index of property does not show that the State has actual or constructive possession of a DNA sample of Anderson, Fields, or Smith with which to compare any testing results. Another problem is that Anderson recanted his story—parts of which police determined were not credible or were not consistent with the evidence—and was charged with a crime for his false report. An admittedly fabricated story does not provide a basis for DNA testing. We find no error in the district court’s factual findings that the evidence Ildefonso desired to have tested would not produce exculpatory evidence. Thus, we find no abuse of discretion by the court in denying Ildefonso’s motion for DNA testing. 11 State v. Dean, 270 Neb. 972, 976, 708 N.W.2d 640, 644 (2006). - 719 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. ILDEFONSO Cite as 304 Neb. 711 Appointment of Counsel A court shall appoint counsel for an indigent person upon a showing that DNA testing may be relevant to the person’s claim of wrongful conviction.12 Here, Ildefonso did not make the requisite showing that DNA testing may be relevant to his claim of wrongful conviction. Accordingly, the court did not abuse its discretion in refusing Ildefonso’s request for appointment of counsel.",analysis
+64,1604614,1,2,"A & B and Allemang argue that Henry's motion lacked any factual support for his contentions regarding the $300,000 offer, and, therefore, that the trial court exceeded its discretion when it granted Henry's Rule 60(b)(6) motion. [7] In part, A & B and Allemang note that Henry's attorneys have not provided any affidavits to support their contention that the offer was not made, likely because they cannot affirmatively state the $300,000 offer of judgment was not made; they simply do not remember one way or another. Not remembering if an offer was made is entirely different than knowing that an offer was not made. By contrast, A & B and Allemang note that their attorney does recall such conversations and has evidentiary support for his position that the offer was indeed made, including affidavits, billing records and email correspondence between the parties' attorneys. [Henry] has made no effort to repudiate this evidentiary support. Before discussing A & B and Allemang's argument, we first note that where there are disputed issues of fact to be resolved and the trial court has received ore tenus evidence, the ore tenus rule is applicable to our review of a ruling on a Rule 60(b)(6) motion. See Shipe v. Shipe, 477 So.2d 430, 432 (Ala.Civ.App. 1985). In the present case, however, the material facts, as hereinafter discussed, were not in dispute, and the trial court did not receive ore tenus evidence. Thus, the trial court's order setting aside the consent judgment is subject to de novo review. Beavers v. County of Walker, 645 So.2d 1365, 1373 (Ala.1994) ([B]ecause the underlying facts are not disputed and this appeal focuses on the application of the law to those facts, there can be no presumption of correctness accorded to the trial court's ruling, and this Court must review that application of the law de novo. ). The materials before us do not reflect that Henry made any evidentiary submission in support of his Rule 60(b)(6) motion; they reflect only that his attorneys stated to the trial court that they have no recollection of whether Legion's offer to settle for $300,000 was ever communicated to them. A & B and Allemang, by contrast, submitted two affidavits from Oncale and written materials in support of their argument that Oncale discussed the $300,000 settlement with Henry's attorneys before the consent judgment was entered. In one affidavit, Oncale stated, in part, that he remembered vividly having a telephone conference with [Henry's attorneys] attempting to explain the fact that Legion was willing to make the $300,000 settlement offer, but could not pay any money. [One of Henry's attorneys] responded by stating, `Why should I take a $300,000 judgment when I already have a $750,000 judgment?' I responded by saying `Legion is certain that you will never be able to collect more than the $300,000.' [Henry's attorney] responded by stating `my research shows that I can collect the $300,000 judgment against the Guarantee Association and still collect underinsured motorist benefits.' Within days of this discussion I was in fact contacted by State Farm inquiring about the judgment, settlement discussions and the demand made for payment by [Henry]. [8] Henry offered no testimony or other evidence to contradict Oncale's assertion that this telephone conversation occurred. Oncale also asserted that the materials submitted with his affidavits, including, in part, the e-mail correspondence between him and Gustafson, his billing records, and his December 12, 2002, letter to Gustafson, supported his recollection that the $300,000 offer was communicated to Henry's attorneys. Oncale stated further that his billing records reflected that he had a meeting with Henry's attorneys on December 3, 2002, to discuss the settlement. It is true that the October 2006 order by the trial court states that Oncale informed the court that he had no recollection of such a meeting. It is also true that the materials before us do not include correspondence from Oncale to [ Henry's attorneys ] that would confirm that a meeting occurred. (Emphasis added.) Even if Oncale had no recollection as to the occurrence of a meeting, his billing records and the December 12, 2002, letter to Gustafson constitute affirmative evidence that a meeting did occur. There is no suggestion that any of the materials A & B and Allemang submitted in opposition to Henry's motion were falsified or inaccurate. Aside from the issue whether a face-to-face meeting occurred, however, there is nothing in the materials before us to support the conclusion that Oncale did not properly remember that he had communicated the $300,000 offer to Henry's attorneys. The materials before us contain undisputed evidence that Oncale did communicate the $300,000 offer to Henry's attorneys. Again, according to the October 2006 order, Henry's attorneys only stated that they have no recollection of whether Legion's offer to settle for $300,000 was ever communicated to them — this is not a denial that Oncale communicated the offer to them or evidence indicating that Oncale failed to communicate the offer to them. In fact, Henry states in his appellate brief that his attorneys have no recollection of this offer ever being conveyed to them, but the evidence produced by petitioners certainly suggests that the offer was made at some time before the consent decree was entered as a final judgment. After learning of the presence of the $300,000.00 offer and not recalling the fact that the offer had ever been brought to their attention, counsel for [Henry] filed a Rule 60(b)(6) Motion for Relief from Judgment, arguing that equity demanded that the consent decree be set aside so that the parties could start fresh. (Henry's brief pp. 6-7.) Henry's appellate brief further states: [I]n light of defendants' evidentiary showing, [Henry] concede[s] that it is more likely than not that [his attorneys] did have knowledge of the offer before the consent decree was entered. (Henry's brief p. 13 at n.9.) Based on the foregoing, we conclude that Henry failed to meet his burden of proving extraordinary circumstances and/or extreme hardship or injustice sufficient to entitle him to relief under Rule 60(b)(6). Ex parte Baker, 459 So.2d at 876. All Henry proved, if anything, was that his attorneys could not recall whether they received notice of the $300,000 settlement offer. Absent evidence that would support a finding that Henry did not receive the offer, he could not prove that he would be entitled to relief pursuant to Rule 60(b)(6) (assuming, without deciding, that such relief would be proper if the $300,000 offer was not communicated to Henry's attorneys). See note 7, supra. Finally, Henry argues in his appellate brief that, even if the $300,000 offer was communicated to his attorneys, he should still be entitled to relief pursuant to Rule 60(b)(6) because the parties were in a difficult situation concerning settlement in light of the rehabilitation proceedings regarding Legion. In other words, Henry argues that he should be allowed to set aside the $750,000 settlement offer he accepted because of the difficult financial circumstance confronting the parties in 2002 and because he has been unable to enforce that settlement so as to obtain the monetary result he desired (apparently being under the impression that LIGA will then make some more definite and acceptable settlement offer). It is well settled, however, that `Rule 60(b)(6) [cannot] be used for the purpose of relieving a party from the free, calculated, and deliberate choices he has made.' See Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 285 (Ala.1998) (quoting Chambers County Comm'rs v. Walker, 459 So.2d 861, 866 (Ala.1984), quoting in turn 11 C. Wright & A. Miller, Federal Practice & Procedure § 2864, at 214-15 (1973)). [9]",sufficiency of the evidence
+65,1145366,2,3,"In his final argument, Relish asserts that there was insufficient evidence to convict him of aggravated homicide by vehicle. Wyoming's aggravated homicide by vehicle statute can be found at W.S. 6-2-106(b) (Cum.Supp.1993) and it provides, in relevant part: (b) A person is guilty of aggravated homicide by vehicle    if       (ii) He operates or drives a vehicle in a reckless manner, and his conduct is the proximate cause of the death of another person. This court applies an oft-repeated standard when reviewing claims of insufficient evidence. We view the evidence in the light most favorable to the State and determine whether it is sufficient to support a finding of a reasonable inference of guilt beyond a reasonable doubt. Glazier v. State, 843 P.2d 1200, 1203 (Wyo.1992). The essence of Relish's argument is that his actions were not sufficiently egregious to constitute driving in a reckless manner. Although reckless is not defined in the criminal code, the term recklessly is defined as follows: A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that the harm he is accused of causing will occur, and the harm results. The risk shall be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation[.] W.S. 6-1-104(a)(ix) (1988). This definition is a fair statement, long accepted in law, and a reasonable definition of what the legislature intended as behavior that would constitute driving in a reckless manner. At trial the State was able to demonstrate that: (1) Relish was travelling I-80, a road he had driven often, during a snow storm at a minimum speed of 45 miles per hour and perhaps as high as 60 miles per hour; (2) the safe speed in those conditions was 20-25 miles per hour; (3) Relish was in a hurry to deliver a load of perishable vegetables to Wisconsin and unconcerned about being involved in a collision; (4) Relish drove his truck completely off the paved portion of the interstate onto the shoulder where he slammed into a parked vehicle with its hazard lights on, crushing the car and Tom Neal with it; and (5) Relish continued down the interstate approximately one mile until his semi would go no further. Relish, as an experienced interstate truck driver, was well aware of the dangerousness of winter weather conditions on this section of I-80, yet he pushed his 80,000 pound semi at unsafe speeds. These facts are sufficient to support a reasonable inference of proof beyond a reasonable doubt that Relish was operating his semi in a reckless manner.",sufficiency of the evidence
+66,3135033,1,2,"The defendant raises three issues on appeal: (1) whether the State violated his statutory right to a speedy trial; (2) whether the trial court abused its discretion in allowing the State to impeach the defendant with facts not in evidence; and (3) whether the trial court abused its discretion in allowing the State to present evidence that its key witnesses received threats before testifying at trial. 1. Compulsory Joinder and the Speedy-Trial Act First, the defendant contends that the State violated the speedy-trial act when it charged him with first degree murder in connection with Patterson’s death 168 days after it charged him with contributing to the criminal delinquency of a juvenile in connection with Patterson’s death. The defendant claims that, because these charges were subject to compulsory joinder, pretrial continuances attributable to him on the contributing charge were not attributable to him on the murder charge. The speedy-trial act provides, “Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant .” 725 ILCS 5/103–5(a) (West 1996). Application of the speedy-trial act is a straightforward counting exercise when the defendant is charged with a single offense. Its application, however, becomes more complicated when the defendant is charged with multiple, but factually related, offenses at different times. In such cases the speedy-trial guarantee is tempered by compulsory joinder principles. The compulsory-joinder provision of the Criminal Code of 1961 states: “(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. (b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act . (c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately.” (Emphasis added.) 720 ILCS 5/3–3 (West 1996). The committee comments shed some light upon what the phrase “based on the same act” means: “Section 3–3 requires in substance that several offenses must be prosecuted in a single prosecution if they are based on the same act . (The Joint Committee originally used the word ‘conduct’ instead of ‘act,’ but after much discussion it was changed to ‘act’ before submission to the legislature.) This requirement is expressly subject, however, to several qualifications. First, the several charges must be known to the prosecuting officer [citation] at the commencement of the prosecution.  Second, the several charges must be within the jurisdiction of the same court–a necessary recognition of the statutory venue provisions. Third, as provided in subsection (c), after the prosecution has been initiated, the court may permit the separate trial of one or more of the offenses if the interests of justice so require.     Section 3–3 is not intended to cover the situation in which several offenses–either repeated violations of the same statutory provision or violations of different provisions–arise from a series of acts which are closely related with respect to the offender’s single purpose or plan.” (Emphasis in original.) Ill. Ann. Stat., ch. 38, par. 3–3, Committee Comments–1961, at 101-02 (Smith-Hurd 1989). That is, “same act” does not include independent acts constituting different offenses: “There is no requirement of joinder where multiple offenses arise from a series of related acts.” People v. Mueller , 109 Ill. 2d 378, 385 (1985). In People v. Quigley , 183 Ill. 2d 1 (1998), we discussed section 3–3 and its relation to the speedy-trial act. In Quigley , the defendant was charged by indictment with felony DUI and by information with misdemeanor DUI. Both charges arose from the same multiple-vehicle collision. The court dismissed the felony charge, and the defendant filed a speedy-trial demand on that charge. After he was reindicted for felony DUI, he filed a motion to dismiss the misdemeanor charge on speedy-trial grounds. The trial court agreed with the defendant and dismissed the misdemeanor charge. The defendant then filed a motion to dismiss the felony charge on compulsory-joinder and double-jeopardy grounds. The trial court disagreed with the defendant, and the defendant filed an interlocutory appeal. The appellate court affirmed. We examined section 3–3 and noted that the parties’ dispute centered upon whether the two DUI charges were based on the “same act.” Quigley , 183 Ill. 2d at 7. We held that they were and that the DUI charges were subject to compulsory joinder: “Driving while under the influence may lead to some other act that, in turn, leads to the accident. The underlying cause of both misdemeanor and [felony] DUI, however, is driving while under the influence. The misdemeanor DUI and the [felony] DUI charges are based on the same act.   The ‘same act’ requirement applies primarily to two situations: (1) where several persons are affected by one act, and (2) where several different statutes are violated by one act.   Defendant was allegedly engaged in only one continuous and uninterrupted act of driving while under the influence. In this instance, the phrase ‘based on the same act’ cannot be given a hypertechnical interpretation to create multiple acts based on discrete moments in time.” (Emphasis in original.) Quigley , 183 Ill. 2d at 10-11. We then addressed the interaction between compulsory-joinder principles and the speedy-trial guarantee: “Compulsory joinder requires the State to bring multiple charges in a single prosecution. The charges are tried together unless the circuit court determines that a separate trial is required in the interest of justice. [Citation.] Once a speedy-trial demand is filed, the multiple charges are subject to the same speedy-trial period. If the charges are required to be brought in a single prosecution, the speedy-trial period begins to run when the speedy-trial demand is filed, even if the State brings some of the charges at a later date.” Quigley , 183 Ill. 2d at 13. We concluded that the felony and misdemeanor charges were required to be tried together. Quigley , 183 Ill. 2d at 13-14. Once the speedy-trial period expired on the misdemeanor charge, it also ran on the felony charge. Quigley , 183 Ill. 2d at 16. In this case, the defendant claims, and the State concedes, that the murder and contributing charges related to Patterson were subject to compulsory joinder. In fact, responding to the defendant’s second speedy-trial motion to dismiss, the prosecutor stated that the new charges were based upon “the same fact pattern that the Grand Jury heard and in fact the Grand Jury considered the facts. This is an alternative theory to the same facts. There is no change in discovery. There is no change in witnesses. There is no change in any evidence that would be presented. It’s preliminarily an alternative theory which may–which a jury could find based upon the same facts which were presented .” The parties disagree, however, on whether continuances attributable to the defendant on the contributing charge were attributable to him on the murder charge. In People v. Williams , 94 Ill. App. 3d 241 (1981), the appellate court addressed this issue. Though the court did not mention compulsory joinder or section 3–3, it held: “Where new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges. Continuances obtained in connection with the trial of the original charges cannot be attributed to defendants with respect to the new and additional charges because these new and additional charges were not before the court when those continuances were obtained .” (Emphasis added.) Williams , 94 Ill. App. 3d at 248-49. Until 1998, the appellate court uniformly followed the rule announced in Williams . See People v. Stanley , 266 Ill. App. 3d 307, 311 (1994); People v. Hinkle , 234 Ill. App. 3d 663, 666 (1992); People v. Hawkins , 212 Ill. App. 3d 973, 981 (1991); People v. Howard , 205 Ill. App. 3d 702, 710 (1990); see also People v. Parker , 59 Ill. App. 3d 302, 304-05 (1978); People v. King , 8 Ill. App. 3d 2, 5 (1972); People v. Williams , 2 Ill. App. 3d 993, 994-95 (1971); People v. Alcazar , 173 Ill. App. 3d 344, 354 (1988). People v. Gooden , 296 Ill. App. 3d 205 (1998), aff’d in part & rev’d in part , 189 Ill. 2d 209 (2000), changed that. In Gooden , the State charged the defendant with home invasion. The State alleged that he entered his ex-wife’s house without authority and struck her in the head with a shotgun. One hundred five days after his arrest, the defendant requested a 3½-month continuance to obtain a mental health expert. Two hundred eighteen days after his arrest, the State filed an amended information against the defendant, recharging him with home invasion and adding five counts of aggravated criminal sexual assault. In the new charges, the State alleged that the defendant sexually assaulted his ex-wife after he struck her in the head. The defendant filed a motion to dismiss the sexual assault charges under the speedy-trial act. The trial court denied the defendant’s motion. Two hundred forty-three days after his arrest, but only 26 days after the State filed the new charges, the defendant was tried and convicted of home invasion and one count of sexual assault. The defendant appealed. The appellate court affirmed, but its holding on the speedy-trial issue is difficult to discern. The court initially announced it had “no problem” with the proposition that, under section 3–3, “[i]f the newly charged offenses are known to the State at the time of the original prosecution and they arise from the same set of facts, then they are subject to the speedy-trial limits that apply to the original charge, regardless of when the new charges are filed.” Gooden , 296 Ill. App. 3d at 210. The appellate court, however, did not explicitly apply this rule to the defendant. That is, the court did not conclude that the home invasion and sexual assault charges were not subject to compulsory joinder. Instead, the court considered whether the lengthy continuance requested by the defendant on the home invasion charge also applied to the sexual assault charges. The appellate court stated: “[I]t is illogical to hold that continuances which are attributable to the original charges are not attributable to the later filed charges on the basis that those charges are not before the court. The defendant cannot have it both ways. He cannot seek continuances that benefit him and enable him to better prepare for trial on the charges and then seek the dismissal of a later-filed charge on the basis that 120 days had elapsed since he was brought into custody.” Gooden , 296 Ill. App. 3d at 210. The appellate court observed that the State waited to receive forensic test results to support the victim’s allegations before filing the sexual assault charges: “This seems preferable to the State filing charges initially and having the defendant defend against charges that may be unfounded or have little supporting evidence.” Gooden , 296 Ill. App. 3d at 210. According to the court, nothing in the record indicated that the State filed the new charges in an effort to deprive the defendant of his right to a speedy trial or to hinder his defense. Gooden , 296 Ill. App. 3d at 210. The defendant’s trial was postponed because he sought mental health evidence on the home invasion charge, not because the State delayed in filing the sexual assault charges. Gooden , 296 Ill. App. 3d at 210. The court declined to follow Williams and it progeny, in effect holding that the continuance attributable to the defendant on the home invasion charge was also attributable to him on the sexual assault charges. Gooden , 296 Ill. App. 3d at 211. We affirmed. Though we noted that compulsory-joinder principles are relevant to determining speedy-trial issues, we held that the so-called Williams rule should not extend to cases which do not involve compulsory joinder “because it would result in the State having to join charges not otherwise mandated by the statute to be joined.” Gooden , 189 Ill. 2d at 218; accord People v. Williams , 193 Ill. 2d 1, 17 (2000) (“the Williams rule applies only when the new and original charges are subject to compulsory joinder”). We concluded that the home invasion and sexual assault charges were based on separate acts and not subject to compulsory joinder. Gooden , 189 Ill. 2d at 220. We then examined whether the State’s decision to permissively join these charges thwarted the purposes of the speedy-trial guarantee. The defendant contended that the continuance he requested on the home invasion charge could not be used to extend the speedy-trial period for the sexual assault charges because those charges did not exist when he requested the continuance. We agreed: “[I]t is precisely because those charges were not in existence at that time that we cannot say  that defendant’s speedy-trial rights with respect to those charges were violated.” Gooden , 189 Ill. 2d at 221. This conclusion was merely an extension of our earlier conclusion that the home invasion and sexual assault charges were not subject to compulsory joinder. Because we disposed of this case on compulsory-joinder grounds, we did not need to discuss the core of the appellate court’s holding–namely, its refusal to follow Williams on whether continuances attributable to the defendant on the initial charge also apply to subsequent charges. Nonetheless, we added that, consistent with Quigley : “[T]he concerns that attend to the right to a speedy trial come into play in those cases where the later-filed charges are based on the “same act” as the original charges, i.e. , in cases where the charges must be brought in a single prosecution. In other words, had the sexual assault charges been required under section 3–3(b) to have been joined, we would not allow the State to circumvent the original speedy-trial term. The later date could not be used by the State to ‘restart’ the speedy-trial period, and any delay occasioned by such a late filing would not be attributable to the defendant . The State would be required to bring defendant to trial on all of the charges within the original speedy-trial term or face dismissal of the new charges. In such cases, fairness dictates that those charges ‘relate back’ to the date the original charges were filed.” (Emphasis added.) Gooden , 189 Ill. 2d at 222. In short, we disapproved of the appellate court’s departure from Williams . Here, the appellate court disregarded this aspect of Gooden , reasoning: “Because the supreme court reversed this court’s decision in Gooden on the basis that the charges were not subject to compulsory joinder, any further statements by the supreme court regarding delay attributable to the defendant on the originally filed charges and the later-filed charges are mere dicta .     [W]e choose to adhere to our court’s approach in Gooden .  [W]e continue to believe that it is illogical to hold that continuances which are attributable to a defendant on an original charge are not attributable to a defendant on a latter-filed [ sic ] charge where that charge is subject to compulsory joinder. We acknowledge our supreme court’s dicta but note that it did not clearly advise that any delay attributable to the defendant on the original charge is not retroactively attributable to the defendant on the later-filed charge. Our supreme court’s statement merely indicated that any delay occasioned by such a late filing would not be attributable to the defendant. This reasonably could refer to any future delay on account of the late filing of the new and additional charges, and not necessarily to delay that had already occurred.” No. 5–99–0452 (unpublished order under Supreme Court Rule 23). Thus, the appellate court concluded that the charges were subject to compulsory joinder, but found that the delays attributable to the defendant on the contributing charge were similarly attributable to the defendant on the murder charge.",analysis
+67,1179653,1,3,"The Dental Board is subject to the Administrative Procedures Act. Okla.Stat. tit. 75, §§ 301-323 (1991). Section 306 authorizes an action for declaratory judgment to test the validity of an agency rule. Section 318 provides for judicial review of final agency orders. Section 328.43 of title 59 provides that an appeal from a disciplinary proceeding is in the district court. The Board argues Dr. Johnson is appealing an interlocutory order and, under these statutory provisions, the district court does not have jurisdiction until a final order issues. Generally, a litigant must seek review of agency decisions in a manner prescribed by statute and cannot invoke the jurisdiction of the court in a separate proceeding. Conoco, Inc. v. State Dep't of Health of the State of Oklahoma, 651 P.2d 125, 129 (Okla.1982); Martin v. Harrah Independent School District, 543 P.2d 1370, 1377 (Okla.1976). An independent action is permitted where the judicial review of an agency decision fails to provide an adequate remedy. Martin, 543 P.2d at 1375. Statutory procedures can be circumvented when there is a constitutional question, inadequate administrative relief, and threatened or impending irreparable injury. Id. A district-court action is not abatable if the uninvoked administrative remedy was unavailable, ineffective or would have been futile to pursue. Tinker Investment & Mortgage Corp. v. City of Midwest City, 873 P.2d 1029, 1038 (Okla. 1994) (emphasis omitted). Dr. Johnson has alleged a constitutional question in that the right to due process is a protection afforded by both the United States and the Oklahoma Constitutions. Due process entitles a person to an impartial and disinterested tribunal in both civil and criminal adjudicative proceedings. Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182 (1980); Gibson v. Berryhill, 411 U.S. 564, 578-79, 93 S.Ct. 1689, 1697-98, 36 L.Ed.2d 488 (1973). The lack of due process resulting from a biased tribunal cannot be corrected on appeal. Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 61, 93 S.Ct. 80, 83-84, 34 L.Ed.2d 267 (1972). Likewise, a professional whose license is at stake is entitled to be treated according to a previously established uniform system of published rules and regulations. Adams v. Professional Practices Commission, 524 P.2d 932, 934 (1974). Dr. Johnson has also alleged inadequate administrative relief and irreparable injury. Dr. Johnson alleged the members of the Board were biased and proceeding without having properly enacted rules or the rules under which the Board was acting were void. There is little doubt an appearance before a biased tribunal will be ineffective and inadequate and is not authorized by law as the Board argues. An appellate review is inadequate to correct injury to a professional's reputation after a board has pronounced a negative decision. Because Dr. Johnson has alleged facts sufficient to justify circumventing statutory procedures, the district court's jurisdiction was correctly invoked. Not only did the trial court have jurisdiction under the rule set out in Martin, 543 P.2d 1370, it also had jurisdiction under article 7, section 7 of the Oklahoma Constitution. Article 7, section 7 vests in the district court ` unlimited original jurisdiction of all justiciable matters . . . and such powers of review of administrative action as may be provided by statute. ' Lincoln Bank and Trust v. Oklahoma Tax Commission, 827 P.2d 1314, 1318 (1992).",jurisdiction
+68,4520058,1,2,"[1,2] An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.2 In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence.3 [3] The interpretation of an insurance policy presents a question of law that an appellate court decides independently of the trial court.4",standard of review
+69,906391,1,1,"At a hearing on November 22, 2010, Hector Medina-Liborio pled no contest to an amended information charging one count of attempted first degree sexual assault of a child and one count of kidnapping. The court subsequently sentenced him to 20 to 25 years’ imprisonment on the attempted sexual assault conviction and to 20 to 25 years’ imprisonment on the kidnapping charge, the sentences to run consecutively. Medina-Liborio filed a timely direct appeal, asserting in part that the district court erred in accepting his pleas without giving him the advisement required by § 29-1819.02. That statute requires: (1) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: IF YOU ARE NOT A UNITED STATES CITIZEN, YOU ARE HEREBY ADVISED THAT CONVICTION OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY HAVE THE CONSEQUENCES OF REMOVAL FROM THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES. (2) . . . If, on or after July 20, 2002, the court fails to advise the defendant as required by this section and the 2 § 29-1819.02(2). Nebraska Advance Sheets 628 285 NEBRASKA REPORTS defendant shows that conviction of the offense to which the defendant pleaded guilty or nolo contendere may have the consequences for the defendant of removal from the United States, or denial of naturalization pursuant to the laws of the United States, the court, on the defendant’s motion, shall vacate the judgment and permit the defend­ ant to withdraw the plea of guilty or nolo contendere and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement. In a memorandum opinion, the Court of Appeals agreed that the district court failed to give the advisement required by this statute but denied relief, reasoning that Medina-Liborio’s remedy was to file a motion to withdraw his pleas.3 Neither party has challenged that determination. Medina-Liborio then filed a motion to withdraw his pleas, alleging that the district court failed to give him the advisement required by § 29-1819.02 and that he faces immigration consequences as the result of his no contest plea-based convictions. At an evidentiary hearing on this motion, the district court received the bill of exceptions from the plea hearing and a detainer issued by the U.S. Department of Homeland Security advising the Nebraska Department of Correctional Services that Medina-Liborio had been ordered deported or removed from the United States, and requesting Nebraska officials to notify the Department of Homeland Security at least 30 days prior to his release. The State, over a relevance objection, offered recorded telephone conversations between Medina-Liborio and members of his family. In these conversations, which took place prior to the date Medina-Liborio entered his pleas, he discussed deportation as a consequence of conviction. The State also offered the testimony, over MedinaLiborio’s relevance and attorney-client privilege objection, of the attorney who represented him prior to and at the time he entered his pleas. This attorney testified, subject to his own 3 See State v. Medina-Liborio, No. A-11-147, 2011 WL 3615572 (Neb. App. Aug. 16, 2011) (selected for posting to court Web site). Nebraska Advance Sheets STATE v. MEDINA-LIBORIO 629 Cite as 285 Neb. 626 assertion of the attorney-client privilege, that he had advised Medina-Liborio that if convicted of the charges, he would be deported. The district court ultimately denied Medina-Liborio’s motion to withdraw his pleas. It reasoned that the plain language of § 29-1819.02 must be read in light of the legislative intent expressed in Neb. Rev. Stat. § 29-1819.03 (Reissue 2008), concluding: [Here,] the concerns of the legislature about a Defendant entering a plea without understanding the possible deportation or naturalization consequences [are] met as the State has submitted evidence that [Medina-Liborio] not only knew that he might be deported but that he in fact understood that he would be deported based on the convictions which are the subject matter of the pending motion. The court further noted that to allow defendants who know the consequences set forth in § 29-1819.02 to withdraw the pleas would allow such individuals to “game” the system by hoping that the trial court would not give the admonitions set forth in the statute and then such Defendants could proceed to sentencing and if they felt the sentences were extremely harsh or excessive they could withdraw their pleas, enter pleas of not guilty and start the proceeding all over again contemplating for a different result. Medina-Liborio filed this timely appeal. We moved the case to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.4 ASSIGNMENTS OF ERROR Medina-Liborio assigns, restated and consolidated, that the district court erred in (1) denying his motion to set aside his pleas, (2) admitting irrelevant evidence relating to whether he actually knew the immigration consequences of his pleas prior to entering them, and (3) admitting testimony from his former attorney that was subject to the attorney-client privilege. 4 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008). Nebraska Advance Sheets 630 285 NEBRASKA REPORTS",facts
+70,4547328,1,4,"We have two sets of appeals: those taken following the June 18, 2018, orders and those taken after the district court awarded attorney fees to the relators. The first appeals were 7 § 84-712.01(3). 8 Id. 9 Aksamit Resource Mgmt., supra note 5. 10 Id. 11 Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 N.W.2d 100 (1998). 12 See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). - 789 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 premature. 13 We dismiss those appeals for lack of jurisdiction. We have jurisdiction over the second set of appeals.",jurisdiction
+71,1810981,1,4,"The mother appeals this adjudicatory order and judgment on the grounds that: (1) The phrase neglected or dependent child, as defined in SDCL 26-8-6, is unconstitutionally vague and indefinite; (2) both SDCL 26-8-6 and SDCL 26-8-36 are violative of substantive due process in that neither section requires as a prerequisite to termination of parental rights a showing of a high and substantial degree of harm to the children, nor that less drastic alternatives be considered prior to resorting to termination; and (3) the trial court's finding that the children were dependent and neglected was not supported by the evidence. The father appeals on the grounds that: (1) The evidence was insufficient to support the findings of fact entered by the court, and (2) the court abused its discretion in terminating his parental right. The children also appeal asserting the court erred in terminating the father's parental rights.",issues
+72,1799379,1,1,"Plaintiff, Melvin Foster was employed as a relief captain aboard the M/V Laura Ann Blessey on the date of his injury, September 5, 1991. The M/V Laura Ann Blessey had two barges in tow, WEB 205 and WEB 206 both of which were owned by Destin. The vessels were moored at the dock of the Houston Fuel Oil Terminal in Houston, Texas. Oil was being discharged from each of the barges to the terminal. The two barges had cargo compartments thirty inches above the walkway of the vessel. Each barge had a hatch cover located at the mid point and at both ends. Three boards extended across from the tank of WEB 205 to WEB 206 at points approximately even with the hatch covers. These boards provided a direct route from cargo compartment to cargo compartment and were requested by the tankermen to conveniently cross from barge to barge. The tankermen would put the boards out when the barges were breasted (side by side) at the dock and take them down when the barges were moved. The boards that were used as a walkway were three 2 × 12 × 16 pressure treated pine boards. During pumping operations, the tankermen checked the cargo compartment hatches for the level of product. The boards were laid even with the three hatches, so that the tankermen moved from cargo compartment to cargo compartment rather than down to the walkway across to the connecting barge then up to the cargo compartment. Just before the accident, two U.S. Coast Guard officers boarded one of the barges for a routine inspection, and one of Blessey's seamen was asked to produce his tankerman's certificate. Because he did not have the document on his person, the tankerman went to the Laura Ann Blessey and asked Foster to retrieve it. When he returned with the certificate, plaintiff was informed by the tankerman that he believed the Coast Guard was going to issue a citation because the hatches were open. Plaintiff was injured as he was crossing from the top of barge WEB 205 to barge WEB 206 which was the shortest route, when the wooden board connecting the barges broke, causing him to fall approximately 30 inches to the walkway below. Foster was taken to Hermann Hospital and diagnosed with an open medial dislocation of the right subtalar joint and the right talonavicular joint. The treating physician also noted torn ligaments. Surgery was performed, with screws placed in plaintiff's right ankle to assist in the healing process. He was released after a seven day hospital stay.",facts
+73,1705000,1,5,"¶ 14. Because Shuqualak had a duty to refrain from causing an unreasonably dangerous condition for motorists, and because we find that genuine issues of material fact exist, we reverse summary judgment for Shuqualak and remand this case for trial. ¶ 15. REVERSED AND REMANDED. DIAZ, P.J., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. SMITH, C.J., NOT PARTICIPATING.",conclusion
+74,6332114,1,6,"The compensation court had authority pursuant to § 48-162.01(7) to modify the original award, and modification was not precluded by the law-of-the-case doctrine. Because the compensation court erred in finding to the contrary, we reverse its ruling and remand the cause for further proceedings. Reversed and remanded for further proceedings. Stacy, J., not participating.",conclusion
+75,2639180,1,2,"The issue raised on appeal is whether Martin is entitled to an award of attorney fees in his action against State Farm pursuant to I.C. § 41-1839. As a collateral question, both parties seek an award of attorney fees for participation in the appeal.",issues
+76,865175,1,5,"¶39. Today, we return the legislatively intended sentencing discretion to our trial courts by clarifying that (1) Miss. Code Ann. Section 47-7-33 prohibits the imposition of a suspended sentence and supervised probation on a prior convicted felon; however, this statute does not prohibit the imposition of a suspended sentence, in whole or in part, upon a prior convicted felon, so long as the sentence does not involve a period of supervised probation and does not exceed the maximum penalty statutorily prescribed for the felony offense committed; (2) when a suspended sentence and supervised probation are properly imposed upon a first-offender under the provisions of Section 47- 7-33, the period of supervision by the Mississippi Department of Corrections is limited to a maximum period of five years; (3) Miss. Code Ann. Section 47-7-34 does not prohibit the imposition of post release supervision upon a prior convicted felon, nor does this statute limit the period of postrelease supervision to a period of five years; but instead, the period of post release supervision is limited only to the number of years, which when added to the total period of incarceration, would not exceed the maximum penalty statutorily prescribed for the felony offense committed; and, (4) importantly, the statutory limitation of five years applies only to that maximum period of post-release supervision which may be served under the supervision of the Mississippi Department of Corrections. To the extent that our decision in Goss v. State, 721 So.2d 144 (Miss. 1998), is in conflict with today’s decision, Goss is expressly overruled. 30 ¶40. The practical effect of today’s decision on Johnny Lee Johnson is that Circuit Judge R. I. Prichard, III imposed a valid and non-modifiable sentence upon Johnson when Judge Prichard sentenced Johnson, a prior convicted felon, to serve fifteen years in the custody of the Mississippi Department of Corrections, with seven years to be served by actual incarceration, and the remaining eight years to be suspended and served by way of post-release supervision pursuant to the provisions of Miss. Code Ann. Section 47-7-34, with five of the eight years to be served in accordance with “probation-like” terms under the supervision of the Mississippi Department of Corrections, pursuant to Miss. Code Ann. Sections 47-7-34, -35. While the Court of Appeals correctly found that Johnson’s sentence (1) was not vindictive or harsh, (2) was not a denial of due process, and (3) was not disproportionate, the Court of Appeals erred when it modified Judge Prichard’s lawful sentence to a sentence of seven years’ incarceration followed by only five years of post-release supervision. ¶41. For these reasons, the judgment of the Court of Appeals is affirmed, in part, and reversed, in part, and the final judgment of the Circuit Court of Jefferson Davis County is reinstated and affirmed. ¶42. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, AND THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS COUNTY IS REINSTATED AND AFFIRMED. CONVICTION OF SALE OF A SCHEDULE II CONTROLLED SUBSTANCE (COCAINE- .1 GRAMS) AND SENTENCE OF FIFTEEN (15) YEARS, WITH SEVEN (7) YEARS TO SERVE AND EIGHT (8) YEARS SUSPENDED, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY TO THE SENTENCE APPELLANT IS NOW SERVING, AND PAY ALL COSTS OF COURT IN THIS CASE AND CASE NOS. K2000-68P AND K2000-69P, WITH PAYMENTS TO BE MADE WHILE ON POST-RELEASE SUPERVISION. SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING. 31",conclusion
+77,2299879,1,4,"Appellant's final claim is that the trial court erred in denying his motion for judgment of acquittal because the government's evidence was insufficient to prove that he possessed and intended to distribute the marijuana in the parcel that was delivered to him. In reviewing sufficiency claims, the evidence must be viewed in the light most favorable to the prosecution to determine whether a reasonable factfinder could find guilt beyond a reasonable doubt. Lewis v. United States, 767 A.2d 219, 222 (D.C.2001). The evidence must be sufficiently weighty to allow a finding of guilt beyond a reasonable doubt, but it need not compel such a finding, nor must the government negate every possible inference of innocence. Timberlake v. United States, 758 A.2d 978, 980 (D.C.2000). Reversal of the trial court's denial of appellant's motion for judgment of acquittal is warranted only where there is no evidence upon which a reasonable [trier of fact] could infer guilt beyond a reasonable doubt. Id. at 981 (quotations omitted). In a bench trial, the judge, as fact finder, has the right to make credibility determinations, weigh the evidence, and draw reasonable inferences of fact. Joiner-Die v. United States, 899 A.2d 762, 764 (D.C. 2006). In reviewing a bench trial, we will not overturn the trial court's factual findings unless they are plainly wrong or without evidence to support [them]. Lewis, 767 A.2d at 222 (alteration in original). Appellant was charged under D.C.Code § 48-904.01(a)(1) (2001), which states, in relevant part, that it is unlawful for any person knowingly or intentionally to ... possess ... with intent to ... distribute, a controlled substance. Id. Proof of possession requires that the government establish that the accused had actual or constructive possession of the prohibited item. See Smith v. United States, 809 A.2d 1216, 1221-22 (D.C.2002). Actual possession is the ability of a person to knowingly exercise direct physical custody or control over the property in question. Id. at 1222 (quoting United States v. Hubbard, 429 A.2d 1334, 1338 (D.C.1981)). Proof of possession can be established by either direct or circumstantial evidence. Smith, 809 A.2d at 1222. The government presented sufficient evidence that appellant knowingly possessed the marijuana. Appellant accepted the parcel with the drugs addressed to Corey Johnson at the address where he was found, acknowledged he was the correct recipient, and signed the postal receipt, which was introduced at trial. A document found in appellant's car had the name Corey Johnson and the address where the package was mailed. Almost immediately after the delivery, appellant left the house carrying the unopened parcel, placed it in the front seat of his car, with the intent to transport it to another location. These actions evidenced actual physical custody and control of the package. And even though appellant never opened the parcel, the fact finder could have inferred from appellant's behavior that he knew what was in it, and thus knowingly possessed the marijuana in the parcel. After being arrested, appellant told the officers that the contents of the parcel were crushed cookies and medicine, and that the officers could test it. As the trial court noted in denying the motion for judgment of acquittal, it was reasonable for a factfinder to infer that appellant knew the contents of the parcel because, if you didn't know what was in the box, you wouldn't make up something. See United States v. Branham, 515 F.3d 1268, 1273-74 (D.C.Cir.2008) (rejecting contention that evidence was insufficient because there was no indication defendant had any idea what was in the package[] where the jury could infer defendant had 1) arranged for the package to be delivered to him at another address, 2) was anticipating its arrival, 3) appeared to try to conceal his connection to the package, and 4) was dealing drugs from the building where the package was delivered); United States v. Calhoun, 49 F.3d 231, 236 (6th Cir.1995) (holding evidence sufficient to establish that defendant had knowledge of contraband in parcel even though the parcel was never opened, because she, inter alia, signed a false name for a package that contained a kilogram of cocaine and gave officers false information about the person she claimed was the intended recipient). Furthermore, as discussed infra, there was evidence linking appellant to a large-scale contraband operation, which bolsters the conclusion that appellant possessed the parcel with knowledge that it contained marijuana. See Bronham, 515 F.3d at 1274; cf. Moore v. United States, 927 A.2d 1040, 1050 (D.C.2007) ([W]e have recognized that a prima facie case of constructive possession may be established by evidence linking the accused to `an ongoing criminal operation of which that possession is a part.' (quoting Earle v. United States, 612 A.2d 1258, 1265-66 (D.C.1992)). The evidence also sufficed to prove that appellant possessed the marijuana with the intent to distribute. We have held that such an intent can be inferred from the possession of a quantity of drugs that exceeds supply for personal use. See Taylor v. United States, 662 A.2d 1368, 1371 (D.C. 1995); Shorter v. United States, 506 A.2d 1133, 1135 (D.C.1986). The government presented unrebutted expert testimony that the quantity of the drugs recovered from appellant was consistent with an intent to distribute. The parcel contained approximately 4,797 grams of marijuana worth between $10,000 and $47,000. The trial court credited the expert witness who testified that, given the packaging of this very large crushed quantity of marijuana, appellant clearly intended to distribute the drugs on the streets of the District of Columbia. We have upheld PWID convictions for possession of contraband worth far less than the marijuana appellant possessed. See, e.g., Spriggs v. United States, 618 A.2d 701, 704 (D.C.1992) (eight packets of heroin and five packets of cocaine worth approximately $470); Taylor, 662 A.2d at 1370 (crack cocaine worth $180); Mack v. United States, 570 A.2d 777, 779 (D.C. 1990) (a gallon jar of PCP and one pound of marijuana worth an estimated $4,500). In addition to the quantity of drugs, there were other indications that the marijuana was intended for distribution. According to the government's narcotics expert, the parcel and the way the drugs were packaged were typical of how marijuana is sent through the Washington metropolitan area in bulk form for further distribution. Once the package is received, it is transported to another location where it is further distributed, to reduce the likelihood of raising law enforcement awareness. The expert testified that the buyers tend to use fictitious names and addresses that do not correspond with their residence or work addresses. The narcotics expert also testified that dealers often obtain supplies from the Midwest or California and pay for shipments by wiring money through Western Union or by mailing multiple money orders in $1,000 increments. He explained that money orders are the most common methods of payment because they leave almost no paper trail. The known scheme described by the expert closely resembles the operation of the transaction involving appellant. The two packages of marijuana located in the parcel Johnson accepted were wrapped in Saran Wrap and dryer sheets, in an apparent attempt to mask the odor of the drugs during delivery from the West to the East coast. The package was addressed to a fictitious name and delivered to appellant's girlfriend's house. Minutes after its delivery, appellant left the house with the parcel and placed it in his car, with the intention to take it to some other location. Finally, the government presented evidence that tied appellant to Ricardo Austin, who was connected to drug-trade activity: the parcel containing 16 pounds of marijuana addressed to appellant was sent by Austin from California; at least four money orders totaling $3,500 were purchased by Courthney Johnson and sent to Ricardo Austin in California; an express-mail receipt located in a postal office in Baltimore identified Courthney Johnson as its sender and an individual in California as the recipient; three different addresses, all within the greater D.C. area, were connected to a drug scheme and to a Corey, Courthney or Courtney Johnson; several other parcels containing marijuana found at the Barlow Place address, all of which used fictitious names, and similar packaging and the same handwriting as the package accepted by appellant, were connected to Ricardo Austin. These facts, taken as a whole, constitute ample evidence from which a reasonable fact finder could find, beyond a reasonable doubt, that appellant knowingly possessed the marijuana that was the subject of the controlled delivery with the intent to distribute it. Affirmed.",sufficiency of the evidence
+78,889020,1,2,¶ 12 McDaniel raises two issues on appeal: 1. Did the District Court err in granting the State's motion for summary judgment based on its prosecutorial immunity defense? 2. Did the District Court err in denying McDaniel's motion for partial summary judgment with respect to the State's liability?,issues
+79,2514089,1,2,"The Washington State Constitution provides that the citizens of this state may seek the removal of a public official from her duly elected office before her term expires through a recall election. CONST. art. I, §§ 33-34; In re Recall of Pearsall-Stipek, 141 Wash.2d 756, 764, 10 P.3d 1034 (2000). The process for initiating a recall election is detailed in chapter 29.82 RCW, and RCW 29.82.010 further defines the causes for which a public official may be recalled from public office. [1] We have previously recognized that the state legislature has limited the recall process so that public officials will be protected from petitions based on frivolous or unsubstantiated charges. Chandler v. Otto, 103 Wash.2d 268, 274, 693 P.2d 71 (1984). Although the courts serve a gateway function in the recall process, we do not attempt to evaluate the truthfulness of the charges in a petition. In re Recall of Beasley, 128 Wash.2d 419, 427, 908 P.2d 878 (1996). Rather, the court's function is limited to evaluating the legal and factual sufficiency of the charges. Pearsall-Stipek, 141 Wash.2d at 764, 10 P.3d 1034. Finally, when we review a trial court's decision, this court will apply the same reviewing criteria as the superior court. Id.",analysis
+80,1764940,1,5,"On appeal, the parties do not dispute that Vokal's office and its contents were property under his official care and control, as defined by the NPADA, or that Vokal was campaigning for or against the nomination or election of a candidate when he filmed 7 seconds of his campaign advertisement in his office. The question is whether sitting at his desk touching the keyboard inside that office was use of these resources under § 49-14,101.02 and, thus, a violation of the NPADA. In answering that question, we are guided by several familiar principles of statutory construction. In discerning the meaning of a statute, we must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, it being our duty to discover, if possible, the Legislature's intent from the language of the statute itself. [5] Under principles of statutory construction, the components of a series or 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. [6] Moreover, because § 49-14,101.02 is penal in nature, [7] it must be strictly construed. [8] Penal statutes 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. [9] A penal statute will not be applied to situations or parties not fairly or clearly within its provisions. [10] So, with those principles in mind, we turn to the specific provisions of the NPADA. The NPADA was promulgated in 1976 to set up disclosure and accountability procedures concerning campaign finance. [11] Specifically, it was designed to establish requirements for the financing, disclosure, and reporting of political campaigns and lobbying activities and provide conflict of interest provisions for ensuring the independence and impartiality of public officials. [12] Section 49-1402 states in full: The Legislature finds: (1) That the public interest in the manner in which election campaigns are conducted has increased greatly in recent years, creating a need for additional disclosure and accountability; (2) That there is a compelling state interest in ensuring that the state and local elections are free of corruption and the appearance of corruption and that this can only be achieved if (a) the sources of funding of campaigns are fully disclosed and (b) the use of money in campaigns is fully disclosed; (3) That it is essential to the proper operation of democratic government that public officials and employees be independent and impartial, that governmental decisions and policy be made in the proper channels of governmental structure, and that public office or employment not be used for private gain other than the compensation provided by law; and (4) That the attainment of one or more of these ends is impaired when there exists, or appears to exist, a substantial conflict between the private interests of a public official and his or her duties as such official; and that although the vast majority of public officials and employees are dedicated and serve with high integrity, the public interest requires that the law provide greater accountability, disclosure, and guidance with respect to the conduct of public officials and employees. Section 49-14,101.02, enacted in 2001, falls under the conflicts of interest section of the act. The broad term use, found in § 49-14,101.02, is not specifically defined in the NPADA. The Concise Oxford American Dictionary defines use as to take, hold, or deploy (something) and to take or consume. [13] The Commission acknowledged at oral argument that the office, desk, and computer in this case were only props for the video. There is no allegation that Vokal created or distributed campaign material using his office or the computer in that office. There is likewise no evidence that he used the office telephone to solicit votes or contributions. We question, even under the strict dictionary definition of use, whether the mere fact that items under official control that are present in the background as props in an advertisement can be considered as a deployment or consumption of these items. But, regardless, we do not view the term use in a vacuum. Instead, we must understand it in the context of the statute where it is found. And we consider the express goal of the NPADA's conflict of interest provisions, which is the independence and impartiality of public officials. We find the case of Saefke v. Vande Walle [14] illustrative of the meaning of use in this context. In Saefke, the Supreme Court of North Dakota held that a judge running for reelection did not violate a corrupt practices act forbidding the use of state property for political purposes when he was filmed for a campaign advertisement wearing his judicial robe while seated at the bench in the courtroom. Although the act specified that state property included buildings, the court found the broad construction asserted by the contestant elector was simply unreasonable. The court noted that because the statute was penal in nature, it must be strictly construed and given a reasonable construction. The court then explained that the primary intent of the legislature in passing the corrupt practices act was to prevent the misuse of public funds or a financial misuse of public property for political purposes. The court found no evidence of such misuse. Instead, by being filmed wearing his robe while seated at the bench in the courtroom, the court found that the judge was simply trying to express to voters that he already occupied the office to which he sought reelection. The court observed that it was common practice for state officials to be shown sitting at their desks in campaign literature. And it reasoned that given such common practice, surely if the legislature intended such `use' of state property to be a violation ..., it would have so provided in specific and clear terms. [15] We find the North Dakota court's reasoning to be persuasive. We simply find nothing in the statute indicating that we should stretch the meaning of use to its broadest possible application—to a case where nothing was consumed and the actions do not create any impression of a conflict of interest. A commonsense approach to the term, in the context in which it is presented, does not warrant such a broad understanding. In fact, the Commission has been unable to persuasively explain how Vokal's actions represented any of the problems the NPADA sought to address. The Commission admits that a much clearer violation would be present had Vokal, for instance, actually used a photocopier or other equipment to produce campaign flyers. While the Commission suggests that Vokal was utilizing an unfair advantage of his incumbency, as in Saefke, we find that Vokal was merely conveying something that most of the public already knew and that Vokal had a right to convey to those who did not. As the Commission concedes, Vokal would not have been sanctioned had he simply rebroadcast news footage showing him working in his office. We see no meaningful distinction between such a scenario and what happened in this case. We agree with the district court that Vokal's actions did not violate § 49-14,101.02. Therefore, we affirm the district court's decision reversing the Commission's judgment. We do not explicitly reach Vokal's contention that the district court erred in failing to find § 49-14,101.02 unconstitutional. Not only would it be unnecessary to our disposition of this appeal, but Vokal also failed to properly set forth any assignment of error in his cross-appeal. A party filing a cross-appeal must set forth a separate division of the brief prepared in the same manner and under the same rules as the brief of appellant. [16] Thus, the cross-appeal section must set forth a separate title page, a table of contents, a statement of the case, assigned errors, propositions of law, and a statement of facts. [17] In this case, Vokal's separate section entitled Brief on Cross-Appeal contains nothing more than an argument section. We have repeatedly said that errors argued but not assigned will not be considered on appeal. [18] Parties wishing to secure appellate review of their claims for relief must be aware of, and abide by, the rules of this court and the Nebraska Court of Appeals in presenting such claims. [19]",analysis
+81,2624923,1,2,"The issue presented on appeal is a question of law which we review de novo. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wash.2d 692, 698, 952 P.2d 590 (1998). In Washington, the general rule is that an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability. Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984). Conversely, in the absence of a contract stating otherwise, an employee has the absolute right to abandon his or her employment at-will. This common law at-will employment doctrine has been the background employment rule in Washington since at least 1928. See Davidson v. Mackall-Paine Veneer Co., 149 Wash. 685, 688, 271 P. 878 (1928); see also Prescott v. Puget Sound Bridge & Dredging Co., 40 Wash. 354, 357, 82 P. 606 (1905) (Mount, C.J., dissenting) (where [an employment] contract is general and for an indefinite time, it is terminable at will.). As a device of the common law, the doctrine is subject to modification by the legislature, the courts, and the parties themselves. However, absent statutory, judicial, or contractual modifications to the employment relationship, the at-will employment doctrine limits an employee's reasonable expectations to compensation for work performed. Thompson, 102 Wash.2d at 228-29, 685 P.2d 1081. There are three recognized exceptions to the general at-will employment rule. First, both Congress and the Washington State Legislature have modified the employment at-will doctrine by limiting employers' rights to discharge employees. See National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1994); Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1994); chapter 49.60 RCW (Washington's law against discrimination); see also chapter 49.12 RCW (prohibiting discharge of employees for testifying in investigations regarding labor conditions, worker earnings, or sex discrimination); RCW 49.44.090 (prohibiting discharge of employee for being age 40 and over). These laws create an exception to an employer's right to discharge an employee by establishing and protecting the employee's rights in those specific situations. The Legislature has specifically authorized lost earnings as damages when an employer wrongfully discriminates against an employee. See RCW 49.60.030(2) (creating cause of action allowing discrimination victims to sue for actual damages); Xieng v. Peoples Nat'l Bank of Wash., 63 Wash.App. 572, 583, 821 P.2d 520 (1991) (Actual damages include `damages for injury in fact, as distinguished from exemplary, nominal or punitive damages.' (quoting Ellingson v. Spokane Mortgage Co., 19 Wash.App. 48, 58, 573 P.2d 389 (1978))), aff'd, 120 Wash.2d 512, 844 P.2d 389 (1993). The Xieng court noted that lost earnings are a type of actual damages awarded in Title 7 employment discrimination suits which compensates victims `for the continuing future effects of discrimination[.]' Xieng, 63 Wash.App. at 583, 821 P.2d 520 (quoting Pitre v. W. Elec. Co., 843 F.2d 1262, 1278 (10th Cir.1988)). Second, we have recognized a narrow public policy exception to an employer's right to discharge an employee. See Smith v. Bates Technical Coll., 139 Wash.2d 793, 991 P.2d 1135 (2000) (public policy exception to for-cause employees); Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 913 P.2d 377 (1996) (discharge of armored truck driver who abandoned post to prevent murder violated public policy). Under this exception, an employer does not have the right to discharge an employee when the termination would frustrate a clear manifestation of public policy. Smith, 139 Wash.2d at 804-08, 991 P.2d 1135; Gardner, 128 Wash.2d at 949-50, 913 P.2d 377. By recognizing this public policy exception, this court expressed its unwillingness to shield an employer's action which otherwise frustrates a clear manifestation of public policy. Thompson, 102 Wash.2d at 231, 685 P.2d 1081. Absent reinstatement, awarding a wrongfully terminated employee his or her lost earnings is the only reliable method of remedying the employee's injury. Lost earnings are available in these claims because an action for discharge in violation of public policy sounds in tort. Damages is a term used in torts to denote an award made to a person by a competent judicial tribunal ... because of a legal wrong done to him by another. Restatement (Second) of Torts § 902 cmt. a (1979). Tort actions are maintainable for a variety of reasons: to compensate injured parties; to determine parties' rights; to punish wrongdoers and deter wrongful conduct; and to vindicate parties and deter retaliation. Restatement (Second) of Torts § 901. The measure of damages in tort [is] based upon the purposes for which actions of tort are maintainable. Restatement (Second) of Torts § 901. Awarding lost earnings to an employee discharged in violation of public policy compensates the employee's pecuniary loss, punishes the employer and deters future wrongful discharges, and vindicates the employee's actions that gave rise to the initial termination. The fact such a remedy exists is not a testament to the ease with which it can be calculated. Rather, such a remedy reflects an understanding that if it were unavailable, the courts could not enforce sound public policy by remedying legal wrongs. Third, employers and employees can contractually modify the at-will employment relationship, eschewing the common law rule in favor of negotiated rights and liabilities. Thompson, 102 Wash.2d at 228-30, 685 P.2d 1081. An employer can bargain away its right to discharge an employee without cause by contracting not to do so. Thompson, 102 Wash.2d at 228, 685 P.2d 1081. The law governing this exception is not a species of the employment at-will doctrine; it is the law of contracts. Therefore, the law of contracts governs an injured party's right to recover damages under this exception. Thompson, 102 Wash.2d at 230-32, 685 P.2d 1081. Unlike a wrongful discharge, a breach of contract is neither immoral nor wrongful; it is simply a broken promise. See Thompson, 102 Wash.2d at 231-32, 685 P.2d 1081. Ford's claim is based on Trendwest's breach of contract to rehire him as an at-will employee. To the extent possible, the law of contracts seeks to protect an injured party's reasonably expected benefit of the bargain: Contract damages are ordinarily based on the injured party's expectation interest and are intended to give that party the benefit of the bargain by awarding him or her a sum of money that will, to the extent possible, put the injured party in as good a position as that party would have been in had the contract been performed. Mason v. Mortgage Am., Inc., 114 Wash.2d 842, 849, 792 P.2d 142 (1990). The central objective behind the system of contract remedies is compensatory, not punitive. Punishment of a promisor for having broken his promise has no justification on either economic or other grounds.... Restatement (Second) of Contracts § 356 cmt. a (1981). See also Restatement (Second) of Contracts § 355 cmt. a (courts in contract cases do not award damages to punish the party in breach or to serve as an example to others unless the conduct constituting the breach is also a tort for which punitive damages are recoverable.). Employment contracts are governed by the same rules as other contracts. Kloss v. Honeywell, Inc., 77 Wash.App. 294, 298, 890 P.2d 480 (1995). Thus, Ford argues, once the breach of contract was established, Ford's damages were limited only by their foreseeability. See Gaglidari v. Denny's Rests., Inc. 117 Wash.2d 426, 446, 815 P.2d 1362 (1991) (damages recoverable for a breach of contract are those which `may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from [the] breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.' (quoting Hadley v. Baxendale, 9 Ex. 341, 354, 156 Eng. Rep. 145, 151 (1854))). But a contract confers no greater rights on a party than it bargains for. In other words, a party to a contract has a contractual right only to that which it bargained for—its reasonable expectation. The parties do not dispute Ford bargained for at-will employment, nor does Ford dispute Trendwest could have hired him as an at-will employee and then immediately fired him without fear of liability. An employee's expectations under an employment at-will contract are no different from the employment itself. Although Ford presents compelling facts that suggest he was treated unfairly by Trendwest, we are unwilling to abandon the long-standing distinction between at-will employment and for-cause employment. Since we are dealing with an at-will employment contract for hire and not a for-cause employment contract for hire, the question is whether we should treat the breach of one different from the breach of the other. The answer is yes, and the reason is because if we treat them the same (i.e., if the breach of either gives rise to expectation damages), there will be no difference between at-will or for-cause employment. When the parties contracted for at-will employment, Ford had no greater expectations than an at-will employee, and Trendwest had no fewer rights than an at-will employer. The contract did not modify the at-will employment relationship, and Ford's claim does not fall within a recognized exception to the employment at-will doctrine. Ford does not allege his discharge was discriminatory nor does he claim it violated public policy. Although Ford entered into a contract with Trendwest, neither party bargained for something other than employment at-will. Nothing in this contract changed the at-will employment relationship. The Court of Appeals in Bakotich reached the right result but for the wrong reasons. The court held that in a breach of an employment at-will contract case, anticipated lost earnings evidence is highly speculative and [therefore] properly excluded by the trial court. Bakotich, 91 Wash.App. at 316-17, 957 P.2d 275. But to simply characterize lost earnings as speculative does not fairly explain why they are available to remedy a wrongful discharge but not a breach of contract. We hold lost earnings cannot measure damages for the breach of an employment at-will contract because the parties to such a contract do not bargain for future earnings. By its very nature, at-will employment precludes an expectation of future earnings. Because Ford did not bargain for future earnings, he cannot claim they measure the harm he sustained by Trendwest's breach. To hold that Ford reasonably expected future earnings under his employment at-will contract would create a new exception to the at-will employment doctrine not supported in law. [4] Other courts have reached the same result. [5] The Michigan Court of Appeals addressed an almost identical factual situation and reached the same conclusion. Sepanske v. Bendix Corp., 147 Mich.App. 819, 384 N.W.2d 54 (1985) (per curiam). In that case, Sepanske left his employment at-will position after relying on Bendix's promise to rehire him in an equal or better position. Sepanske, 147 Mich.App. at 822-23, 384 N.W.2d 54. A jury found Bendix breached its contract, but the appellate court limited Sepanske's damages to a nominal amount. The court held Sepanske contracted for at-will employment and he had no actionable expectation that any such restoration would be permanent. Sepanske, 147 Mich.App. at 829, 384 N.W.2d 54. Because an employer can alter or terminate at-will employment without consequence, [t]here [was] no tangible basis upon which [to assess] damages where plaintiff's expectation was for an at-will position which could have been changed or from which he could have been terminated without consequence. Sepanske, 147 Mich. App. at 829, 384 N.W.2d 54. We agree with this analysis. Sepanske is consistent with our case law, and Ford has cited no authority to support his argument that a party to an employment at-will contract is entitled to future earnings. Ford, therefore, falls under the default rule: an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability. Thompson, 102 Wash.2d at 226, 685 P.2d 1081.",analysis
+82,1965477,1,1,"On appeal, the city contends that the hearing justice erred (1) by allowing Sepe and Slade's Ferry to raise a defense that, by statute, was personal to Joan Kilberg and (2) by applying the incorrect statute in determining the notice to which Mrs. Kilberg was entitled to receive. Specifically, the city argues that under § 44-9-11(b), as effective at the time of the tax sale, the right to notice was personal to each party entitled to it, and the lack of notice could not be asserted by any other party of interest. Consequently, the city asserts, Sepe and Slade's Ferry lacked standing to raise the defense of lack of notice to Mrs. Kilberg. Additionally, the city argues that any interest Mrs. Kilberg may have had in the property was extinguished by the mortgage foreclosure and that therefore Sepe and Slade's Ferry did not acquire any interest from her. The city's second argument implicates the language of the statutory notification requirements in effect at the time of the tax sale. The city ascribes error to the hearing justice's finding that Joan Kilberg was entitled to notice under § 44-9-10, which provided in pertinent part: (a) Whether or not the person or general partnership to whom the estate is taxed as of December 31st prior to the tax sale is a resident of this state, the collector shall, in addition to the foregoing, notify the taxpayer of the time and place of sale either by registered or certified mail    not less than twenty (20) days before the date of sale   . [6] According to the city, it was required to send certified notice under § 44-9-10 only to Arnold Kilberg, the record owner as of December 31, 2002; the city further contends that, because Joan Kilberg acquired her interest after December 31, 2002, the notice to which she was entitled was governed by either § 44-9-9 (requiring notice in public places and a newspaper) or § 44-9-11. [7] Because at the time § 44-9-11 required certified notice only to certain enumerated parties whose interests were recorded at least ninety days before the tax sale, and Joan Kilberg's interest was recorded eighty-two days before the tax sale, the city argues she was entitled only to the advertising and posting requirements of § 44-9-9. In response, Sepe and Slade's Ferry argue that they have standing to challenge the tax sale. Sepe and Slade's Ferry contend that they can raise Joan Kilberg's notice rights because they succeeded to her interest in the property and are in direct privity with her. They contend that a conveyance through a mortgage foreclosure passes all of the rights of the record owner in the form of a fee simple interest. Because title to the property, with all of its rights and privileges—including the owner's right to defend against a tax sale invalid as to his or her predecessor in title—passed to Mr. Campellone as the successful bidder at the foreclosure sale, these rights were, in turn, conveyed to Sepe when it purchased the property from Mr. Campellone. Turning to the merits, Sepe and Slade's Ferry assert that the term taxpayer in § 44-9-10 necessarily included the record owner at the time of the tax sale. In their view, to find otherwise would run afoul of state and federal due-process protections that require adequate notice of tax sales to parties of interest. They argue that the city's reading of § 44-9-10 would mean that the taxpayer as of the previous December 31, who no longer may have any interest in the property, would receive greater notice protection than the current owner, who has everything to lose. Because Joan Kilberg was not merely an interested party, but the record owner eighty-two days before the tax sale, Sepe and Slade's Ferry assert she was entitled to certified notice at least twenty days before the tax sale, under § 44-9-10. They further contend that because failure to comply with statutory notice provisions invalidates a tax sale the city's failure to notify Joan Kilberg necessarily nullifies the tax sale. Sepe and Slade's Ferry also argue that the city's interpretation of § 44-9-11 would violate due process and thus render the statute unconstitutional. Sepe and Slade's Ferry point out that the language in § 44-9-11 in effect at the time of the tax sale did not provide for any notice to the owner of record. At the time of the June 25, 2003 tax sale, § 44-9-11 required certified notice to various interested parties, subject to the condition that their interests were recorded ninety days before the tax sale, but the section did not specifically mention owners of record. The Rhode Island General Assembly later amended § 44-9-11 to require notice to the present owner of record. P.L.2003, ch. 262, § 1 (effective on January 6, 2004). Thus, under current law, owners of record must receive notice only if their interest was recorded ninety days before the tax sale, [8] but at the time of the tax sale in this case, § 44-9-11 did not specifically enumerate owners of record. Sepe and Slade's Ferry assert, therefore, that in June 2003, § 44-9-10, and not § 44-9-11, governed the appropriate notice to property owners. In the alternative, Sepe and Slade's Ferry argue that they purchased the property free and clear of the tax sale. Before closing on the property, Sepe and Slade's Ferry ordered a municipal lien certificate from the city in accordance with § 44-7-11. They argue that because the certificate did not mention 140 Reservoir Avenue's tax payment, they took title to the property free and clear of the tax sale by operation of law. Finally, it is worth noting that 140 Reservoir Avenue has declined to take an active role in presenting additional arguments before this Court. [9] 140 Reservoir Avenue asserts that if this Court finds the tax sale void, then it must be reimbursed as an innocent purchaser. See § 44-9-43 (allowing refunds to innocent purchasers after invalid tax sales). However, 140 Reservoir Avenue also asserts that if this Court determines that the city held a valid tax sale, then the case should be remanded to the Superior Court to set the terms of redemption. See § 44-9-29 (setting forth rights of redemption for parties of interest).",issues
+83,1905575,1,2,"On appeal, Canal raises two issues. First, he claims the evidence was insufficient to establish the e-mails he sent C.E. were obscene. Second, he claims his trial counsel was ineffective for failing to request a jury instruction informing the jury that mere nudity is not sufficient to establish obscenity.",issues
+84,4544303,1,4,"We have two sets of appeals: those taken following the June 18, 2018, orders and those taken after the district court awarded attorney fees to the relators. The first appeals were 7 § 84-712.01(3). 8 Id. 9 Aksamit Resource Mgmt., supra note 5. 10 Id. 11 Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 N.W.2d 100 (1998). 12 See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). - 789 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 premature. 13 We dismiss those appeals for lack of jurisdiction. We have jurisdiction over the second set of appeals.",jurisdiction
+85,2634605,2,1,"The long-arm statute provides jurisdiction over an out of state company when it does an act in Idaho for pecuniary gain. I.C. § 5-514(a). The long-arm statute should be liberally construed. McAnally v. Bonjac, Inc., 137 Idaho 488, 491, 50 P.3d 983, 986 (2002). Based on PurCo's purposefully directed activities in Idaho the exercise of jurisdiction over PurCo by the Director in issuing the cease and desist order is consistent with fair play. State Department of Finance v. Tenney, 124 Idaho 243, 247, 858 P.2d 782, 786 (1993). This Court concludes Idaho has personal jurisdiction over PurCo.",jurisdiction
+86,4513340,1,1,"In both of these consolidated cases, the State filed complaints in county court charging appellants with felonies. The State charged A.D. with first degree sexual assault, a Class II felony. The State charged C.M. with possession of a stolen firearm, a Class IIA felony. Both offenses were alleged to have been committed when appellants were older than 14 years old but younger than 18 years old. Both A.D. and C.M. filed motions asking the county court to transfer their respective cases to juvenile court under Neb. Rev. Stat. §§ 29-1816 (Cum. Supp. 2018) and 43-276 (Reissue 2016). In both cases, the State argued that the county court did not have jurisdiction to decide a motion to transfer to juvenile court in felony cases. And in both cases, after a hearing, the county court issued orders stating that it did not have jurisdiction to rule on a motion to transfer to juvenile court and scheduled preliminary hearings. Before a preliminary hearing was held in either case, appellants filed notices of appeal. We moved the appeals to our docket and consolidated them for oral argument and disposition. - 156 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. A.D. Cite as 305 Neb. 154 ASSIGNMENTS OF ERROR Both appellants claim that the county court erred in one respect: by holding that it lacked jurisdiction to rule on their respective motions to transfer to juvenile court.",facts
+87,4545795,1,1,"A federal statute 1 and its Nebraska counterpart 2 make noncitizens, who are not “lawfully present,” 3 ineligible for state public benefits unless the State “affirmatively provides” 4 for eligibility. In these consolidated Administrative Procedure Act 5 appeals, we determine whether the language of the Young Adult Bridge to Independence Act (YABI) 6 sufficiently made several noncitizen applicants eligible for all public benefits of the Bridge to Independence program (B2I). A state agency ruled them ineligible, and on appeal, the district court affirmed. On appeal to this court, we affirm. We also reject their constitutional challenge to an agency regulation. 7",introduction
+88,1107655,1,1,"Before deciding these cases, we address a jurisdictional issue. The district courts in these cases only acknowledged, but did not certify, their conflict with the First District. For purposes of our jurisdiction, this is an important distinction. While it is a district court's prerogative to acknowledge rather than certify conflict, such an approach does not give us jurisdiction under article V, section 3(b)(4) of the Florida Constitution (establishing this Court's discretionary jurisdiction to review any decision of a district court of appeal that . . . is certified by it to be in direct conflict with a decision of another district court of appeal) (emphasis added). As already informally recognized, district court opinions accepted [for review as certified conflict cases under article V, section 3(b)(4) of the Florida Constitution] . . . almost uniformly meet two requirements: they use the word `certify' or some variation of the root word `certif.-' in connection with the word `conflict;' and, they indicate a decision from another district court upon which the conflict is based. Harry Lee Anstead, Gerald Kogan, Thomas D. Hall, & Robert Craig Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L.Rev. 431, 529 (2005) (footnote omitted). However, all of the cases — with few exceptions — in which the district court has merely `acknowledged' conflict are treated as petitions for [review based on] `express and direct' conflict [under article V, section (3)(b)(3) of the Florida Constitution], and some are accepted for review on that basis. Id. at 530 (footnote omitted). We thus hold that district court decisions that simply acknowledge, discuss, cite, suggest, or in any other way recognize conflict do not provide a proper basis for a party to seek this Court's review under our certified conflict jurisdiction. See art. V, § 3(b)(4), Fla. Const. To support such review, conflict must be certified. Of course, this does not mean that we lose all jurisdiction to review the case. As occurred with the three cases here, jurisdiction may nevertheless exist under our express and direct conflict jurisdiction, see art. V, § 3(b)(3), Fla. Const. (granting this Court jurisdiction to review district court opinions that expressly and directly conflict with the decision of another district court of appeal or with a decision of the Florida Supreme Court), or on some other basis. The difference is that a certification of conflict provides us with jurisdiction per se. On the other hand, when a district court does not certify the conflict, our jurisdiction to review the case depends on whether the decision actually expressly and directly conflicts with the decision of another court. We therefore advise district courts that when they intend to certify conflict under article V, section 3(b)(4) of the Florida Constitution, they use the constitutional term of art certify.",jurisdiction
+89,1358921,1,3,"Summary judgment is appropriate where it is clear there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Hamiter v. Retirement Division of South Carolina, 326 S.C. 93, 484 S.E.2d 586 (1997). In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Id.",standard of review
+90,6215723,1,3,"¶43 Two of the cornerstones of our criminal justice system are that defendants are presumed innocent until found guilty by a jury of their peers and that the prosecution has the burden of proving each and every element of the offense beyond a reasonable doubt. Because the jury instruction allowed the jury to 20 convict Garcia of second degree kidnapping without first finding all of the statutory elements of the crime, Garcia’s right to due process and right to a trial by jury were violated. Accordingly, we reverse the decision of the division below and remand the case for further proceedings consistent with this opinion. 21",conclusion
+91,901494,1,3,"[¶ 8.] Krukow does not dispute that he violated the conditions of his supervision agreement. Instead, he contends that he was not under the Board's jurisdiction at the time the violations occurred. According to Krukow, his November 1998 judgment does not explicitly state how long he was to remain on supervised release, and thus the Board did not have the power to revoke his suspended sentence nearly six years after he was sentenced. The Board, on the other hand, claims that a plain reading of Krukow's sentence demonstrates that the sentencing court expected the suspended sentence to last nine years and six months. [¶ 9.] At his revocation hearing, Krukow did not challenge the Board's jurisdiction to impose the remainder of his suspended sentence. However, we will consider the issue because questions of jurisdiction can be raised and considered at any time. Wells v. Wells, 2005 SD 67, ¶ 11, 698 N.W.2d 504, 507 (citing Reaser v. Reaser, 2004 SD 116, ¶ 27, 688 N.W.2d 429, 437 (citations omitted)). While Krukow is correct that the trial court's sentence does not explicitly state the time Krukow will be subject to the Board's supervision, he cites no authority for the conclusion that absent such a provision the Board has no jurisdiction. Nevertheless, he insists that this Court cannot assume that the sentencing court meant to place Krukow on supervision for the entire time of his suspended sentence. [¶ 10.] Once a defendant is released on a suspended sentence, the Board has the responsibility for enforcing the conditions imposed by the sentencing judge, and the [B]oard retains jurisdiction to revoke the suspended portion of the sentence for violation of the terms of suspension. SDCL 23A-27-19. Krukow was sentenced to ten years. Then, on the condition that he adhere to certain terms, the court suspended the execution of nine years and six months of his sentence. While the court could have stated in its sentence that Krukow was to remain under the Board's supervision for less than the suspended nine years and six months, the court was not required to do so. See State v. Macy, 403 N.W.2d 743, 744-46 (S.D.1987). Unless otherwise provided, the length of supervision and the suspended sentence were coterminous. Despite the fact that Krukow had been on supervised release for over five years, he was still under the supervision of the Board at the time he violated the conditions of his suspended sentence. Therefore, the Board had jurisdiction to revoke the suspended portion of his sentence.",jurisdiction
+92,4663184,1,3,"Background Regarding Adjudication Proceedings in Juvenile Court. [2,3] Before addressing Mohamed’s and Abak’s arguments, we briefly review the standards governing the adjudication phase of a juvenile court proceeding. The purpose of the adjudication phase is to protect the interests of the child. In re Interest of Justine J., 286 Neb. 250, 835 N.W.2d 674 (2013). To obtain jurisdiction over a juvenile at the adjudication stage, the court’s only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of Neb. Rev. Stat. § 43-247 (Reissue 2016). In re Interest of Justine J., supra. Section 43-247(3)(a) sets forth numerous grounds by which the juvenile court could take jurisdiction over a juvenile. See In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020). The ground relevant to this case is that the juvenile “lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian.” See § 43-247(3)(a). As we have previously explained, “proper parental care” includes providing a home, support, subsistence, education, and other care necessary for the health, morals, and wellbeing of the child. . . . It commands that the child not - 426 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 be placed in situations dangerous to life or limb, and not be permitted to engage in activities injurious to his health or morals. State v. Metteer, 203 Neb. 515, 520, 279 N.W.2d 374, 377 (1979). See, also, In re Interest of Jeremy U. et al., supra. In considering whether a juvenile lacks proper parental care, our case law has incorporated a risk of harm component. In re Interest of Jeremy U. et al., supra. To show that a juvenile lacks proper parental care, the State is not required to prove that the child has actually suffered physical harm, but the State must establish that, without intervention, there is a definite risk of future harm. See In re Interest of Kane L. & Carter L., 299 Neb. 834, 910 N.W.2d 789 (2018). We recently explained in In re Interest of Jeremy U. et al. that a claim under § 43-247(3)(a) that a juvenile “lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian” should be analyzed through a twostep inquiry: The first step is to determine if the juvenile is lacking proper parental care, whether such care is being provided by a parent, a guardian, or a custodian. If a juvenile is not lacking that type of care (and . . . there is no definite risk of harm), adjudication under this provision of § 43-247(3)(a) is improper. If, on the other hand, the juvenile is lacking such care, the court should proceed to the second step: Does that condition result from the fault or habits of the juvenile’s parent, guardian, or custodian? If the answer to that question is also yes, then the juvenile court should take jurisdiction of the juvenile and proceed to a proper disposition. 304 Neb. at 748, 936 N.W.2d at 744-45. [4] 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. In re Interest of Heather R. et al., 269 Neb. 653, 694 N.W.2d 659 (2005). A preponderance of - 427 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 the evidence is the equivalent of the greater weight of the evidence, which means evidence sufficient to make a claim more likely true than not true. See In re Interest of Vladimir G., 306 Neb. 127, 944 N.W.2d 309 (2020). Both Mohamed and Abak argue on appeal and cross-appeal that the State failed to carry its burden to show that Prince lacked proper parental care by reason of their faults or habits and that, without intervention, Prince faced a definite risk of future harm. We turn to their arguments now, beginning with Abak’s. Abak’s Cross-Appeal. Abak contends that Prince did not lack proper parental care by reason of her fault or habits and that Prince did not face a definite risk of future harm. In support of her argument that Prince received adequate parental care, Abak primarily emphasizes evidence of her care for Prince prior to the meeting at Children’s on October 1, 2019. She mentions, for example, that she noticed the swelling in Prince’s forearm and arranged for him to be seen by doctors. She points out that she agreed to the treatment plan recommended by Children’s and that Prince initially received treatment as recommended. She also directs us to a note recorded by Chesters in July 2019 stating that she and Mohamed “love Prince very much.” But even if this evidence tends to show that Abak was ensuring that Prince received adequate medical care for a period of time, it fails to address the crux of the State’s case: that in early October, Abak took Prince out of Nebraska and, for more than 3 weeks until the State was able to locate them, kept Prince from receiving the treatment Acquazzino testified was essential to his survival. The closest Abak comes to providing an explanation for her actions after the October 1, 2019, meeting are suggestions that she was not refusing to allow treatment, but merely seeking a second opinion. This claim might have more force if there were evidence in the record that Abak had actually made arrangements to obtain a second opinion or taken - 428 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 significant, concrete steps toward doing so. But even though Acquazzino had recently informed Mohamed and Abak that Prince’s condition was serious, that delays in treatment subjected Prince to risk of lethal harm, and that thus, any second opinion must be obtained quickly, there is no evidence that even after Prince had already missed approximately 3 weeks of scheduled treatment, Abak had so much as begun to identify where she might obtain a second opinion. Further, Abak’s comment to Herrera that “if I even get another doctor, it’s not going to be in Nebraska,” suggests that Abak had no immediate intentions of arranging for a second opinion. (Emphasis supplied.) Based on this evidence, we agree with the juvenile court that it is more likely than not that Abak did not leave Nebraska with Prince to obtain a second opinion, but to stop his treatment altogether for an indefinite period of time. We also agree with the juvenile court that the decision to indefinitely stop treatment, which Acquazzino testified was essential to Prince’s survival, deprived Prince of proper parental care by reason of the faults or habits of Abak. Abak also argues that the juvenile court erred by finding that, without intervention, Prince faced a definite risk of future harm. Here, Abak argues that because the State could not definitively show that Prince was harmed by not receiving treatment during the time in which she and Prince were not in Nebraska, it did not prove the risk of harm element. Abak’s argument, however, is an attempt to transform the risk of harm requirement into a requirement that the juvenile suffer actual harm before the juvenile court obtains jurisdiction. As we have emphasized on many occasions, however, the Nebraska Juvenile Code does not require a juvenile court to wait until disaster has befallen a minor child before the court may acquire jurisdiction. See, e.g., In re Interest of Justine J., 286 Neb. 250, 835 N.W.2d 674 (2013). The State introduced evidence showing that Prince was placed at risk of harm by a delay in treatment. As we have noted, Acquazzino testified that treatment delays increase - 429 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 the risk of relapse and decrease the overall efficacy of the treatment and that if the treatment was stopped altogether, Prince would die. Her testimony also established that due to his treatment and the central line in his body, Prince needed to be regularly seen by medical professionals. We find the State established that, without intervention, there was a definite risk of future harm to Prince as a result of Abak’s actions. Under the two-step analysis set forth in In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020), the State established that Prince lacked proper parental care and faced a definite risk of future harm and that this resulted from the fault or habits of Abak. We thus find no merit to Abak’s cross-appeal. Mohamed’s Appeal. In his appeal, Mohamed makes many of the arguments made by Abak. Like Abak, he contends that he ensured Prince received the treatment recommended by Children’s up until early October 2019 and that the treatment stopped at that point only because a decision was made to obtain a second opinion. He also makes the argument that because the State did not prove that Prince actually suffered harm because of the treatment delay, it did not establish the risk of harm element. As we have already explained, however, we are unpersuaded by these arguments. We have already determined under the first step of the two-step In re Interest of Jeremy U. analysis that, after his treatment was stopped in early October 2019, Prince lacked proper parental care and, as a result, faced a definite risk of future harm. Mohamed does make one argument, however, that remains unaddressed even after our analysis of Abak’s cross-appeal: Mohamed attempts to place any blame for a lack of parental care exclusively on Abak. Mohamed argues that while he agreed that a second opinion should be sought, he believed Abak was, in fact, seeking such an opinion when she left the state with Prince in October 2019. Although he does not - 430 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 frame the argument in these exact terms, Mohamed appears to argue that even if the State proved at step one of the In re Interest of Jeremy U. analysis that Prince lacked proper parental care and faced a definite risk of future harm because of the treatment delay in October 2019, it did not prove at step two that this was a result of the fault or habits of Mohamed. As noted above, the juvenile court rejected this argument, finding that both parents made the decision to withdraw Prince from treatment and to remove him from Nebraska—not to obtain a second opinion but to stop his treatment altogether for an undetermined period of time. We agree that, based on the evidence in the record, it is more likely than not that Mohamed supported and bears responsibility for the decision to remove Prince from treatment indefinitely regardless of whether a second opinion was sought. Several pieces of evidence inform this conclusion, which we outline below. Initially, we note that the record contains evidence of multiple statements by Mohamed that the recommended treatment was not only unnecessary to Prince’s survival, but harmful to him. Acquazzino, Chesters, Parmer, and Herrera all testified that Mohamed made such statements. Although the fact that Mohamed made these statements alone would not demonstrate that Prince lacked proper parental care by reason of the fault or habits of Mohamed, they do suggest that Mohamed disagreed with and wanted to discontinue the recommended treatment and was not merely an unwitting victim of Abak. There are also pieces of evidence that, when considered together, undermine Mohamed’s claims that he wanted to obtain a second opinion, that he deferred to Abak to arrange for such an opinion, and that he believed that such an opinion was being sought. First, Mohamed offered testimony regarding his devotion and attachment to Prince. The juvenile court found this testimony credible, observing that Mohamed “undoubtedly loves his son.” But while there is no dispute that Mohamed cared deeply for Prince, there is evidence suggesting that he would not have trusted Abak to ensure that Prince - 431 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 received needed medical care. Mohamed and Abak reported to Chesters that “they don’t always get along.” In addition, in a meeting with Chesters, Mohamed shared that he was concerned about Abak’s arrest record and drug and alcohol use and that he believed her drug usage might explain why Prince missed several speech therapy appointments. During that meeting, Mohamed requested that all appointments be made on days on which he did not have to work. Given Mohamed’s attachment to Prince and his prior concerns regarding Abak’s reliability, it is difficult to believe that Mohamed entrusted Abak with the task of obtaining a second opinion. Mohamed emphasizes that he sent an email to Chesters on October 8, 2019, asking that Prince’s medical records be compiled so that a second opinion could be sought. This evidence does not persuade us that Mohamed bears no responsibility for the lack of proper parental care. Chesters testified that while she compiled the records, she also informed Mohamed he would need to arrange to come pick up a disc containing the records, and he never did so. Mohamed disagreed with this testimony, claiming that Chesters emailed the records to him. But even assuming the truth of Mohamed’s testimony on this point, Mohamed also testified that he never sent the records to another medical provider. The assertion that Mohamed believed a second opinion was being obtained is difficult to square with the fact that he knew the records necessary to obtain such an opinion had not been given to another provider. We acknowledge that Mohamed testified that he believed Abak was arranging for a second opinion and that Abak told him she had made an appointment with another provider. The juvenile court, however, found Mohamed’s “claimed ignorance of [Prince’s and Abak’s] whereabouts, or [Abak’s] efforts or lack thereof in seeking a second opinion, unconvincing.” The juvenile court had the opportunity to observe Mohamed’s testimony firsthand, and given the evidence in the record we have discussed, we believe deference to its assessment of the credibility of Mohamed’s claims is warranted. See In re - 432 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 Interest of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020). Based on the foregoing, we agree with the juvenile court that it is more likely than not that Mohamed supported Abak’s taking Prince from the state because he too wanted the treatment stopped indefinitely and did not want Prince to be found. We thus reject Mohamed’s argument that the State failed to prove at step two of the analysis under In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020), that Prince lacked proper parental care because of Mohamed’s fault or habits.",analysis
+93,4535343,1,1,"¶1 Salt Lake, Duchesne, Uintah, Washington, and Weber Counties (Counties) filed a lawsuit against the State of Utah, challenging several provisions of the Utah Tax Code as unconstitutional (Challenged laws).1 The district court dismissed two of the Counties’ claims as unripe because the allegations in their complaint did not show they had been adversely affected by the tax code provision at issue. The court then dismissed the Counties’ remaining claims for a failure to exhaust administrative remedies because the Counties had not first filed an appeal of a tax assessment with the Utah State Tax Commission. Because none of the Counties’ claims presents a justiciable controversy, we affirm the district court’s decision. ¶2 The district court properly dismissed the Counties’ claims on ripeness grounds. Under our ripeness doctrine, courts should resolve legal issues only where the resulting legal rule can be applied to a specific set of facts, thereby resolving a specific controversy. Although the Counties cite evidence outside their pleadings to suggest that the tax code provision at issue had already adversely affected them, they have not incorporated this evidence into their complaint. So their complaint is facially insufficient to show that the dismissed claims were ripe. Accordingly, we affirm the district court’s dismissal of the two claims dismissed on ripeness grounds. ¶3 Further, we affirm the district court’s dismissal of the Counties’ remaining claims because those claims are best viewed as requests for an advisory opinion—something we do not provide. According to the Counties, their claims “do not arise from a specific tax assessment challenged, unchallenged, or forgone.” And they do not “depend upon averments of particular assessments to maintain this action.” Instead, their claims “are structurally based and stem from the Challenged laws’ enactment and unconstitutional __________________________________________________________ 1 Delta Air Lines, Inc. and SkyWest Airlines, Inc. (Airlines) intervened as defendants in the district court. 2 Cite as: 2020 UT 27 Opinion of the Court assessment[-]mandated methodology.” In other words, the Counties’ purpose in turning to the judiciary in this case is to obtain a judicial declaration that the Challenged laws are unconstitutional in the abstract. Because we have “no power to decide abstract questions or to render declaratory judgments[] in the absence of an actual controversy directly involving rights,”2 we affirm the district court’s dismissal of the Counties’ remaining claims.",introduction
+94,1666737,1,1,"On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals. Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996). The Court of Civil Appeals, in turn, is bound by Ala.Code 1975, § 25-5-57(e), which provides that legal issues are to be reviewed de novo and requires that the judgment of the trial court be affirmed if its factual findings are supported by substantial evidence.
+Ala.Code 1975, § 25-5-57(c)(1), a part of the Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975, provides: (c) Setoff for other recovery. In calculating the amount of workers' compensation due: (1) The employer may reduce or accept an assignment from an employee of the amount of benefits paid pursuant to a disability plan, retirement plan, or other plan providing for sick pay by the amount of compensation paid, if and only if the employer provided the benefits or paid for the plan or plans providing the benefits deducted. We have explained that this subsection allows an employer to reduce the amount of workers' compensation benefits due by the amount of benefits paid or payable under a qualifying disability, retirement, or sick pay plan. Ex parte Dunlop Tire Corp., 706 So.2d 729, 731 (Ala.1997). Thus, any payment by Fort James under such a qualifying plan would reduce its obligation to Irby for workers' compensation benefits by that amount. In this case, the amount at issue is $2,823.57, or $335 per week. The first issue we must address is the proper burden of proof. The party asserting an affirmative defense bears the burden of proof on that defense. Green Tree Fin. Corp. of Alabama v. Wampler, 749 So.2d 409, 415 (Ala.1999). In workers' compensation issues, other than certain threshold issues of compensability, the party bearing the burden of proof must meet that burden by a preponderance of the evidence. Ala.Code 1975, § 25-5-81(c). Yet the trial court found that Fort James had not proven by clear and convincing evidence that Fort James had paid Irby sick pay. We hold that the trial court erred in requiring Fort James to prove by clear and convincing evidence that it had paid Irby sick pay. The second issue for our review is whether Fort James met its burden of proof with regard to the setoff. The trial court, applying the clear-and-convincing-evidence standard, held that Fort James did not. The Court of Civil Appeals upheld the trial court's decision to deny the setoff under the rationale of Toborkey v. Workmen's Comp. Appeal Bd., 655 A.2d 636 (Pa.Commw.Ct.1995), approved by this Court in Ex parte Dunlop Tire Corp., supra . In Toborkey, the court explained that sick leave was `an incident or benefit provided under the work agreement and is an entitlement like wages for services performed.' Toborkey, 655 A.2d at 638 (quoting Temple v. Pennsylvania Dep't of Highways, 445 Pa. 539, 542, 285 A.2d 137, 139 (1971)). On this authority, the Toborkey court denied any setoff of workers' compensation benefits for amounts paid for sick leave. However, upon a closer examination of Toborkey, it appears that that court distinguished sick leave from sick pay. 655 A.2d at 639. Sick pay, noted the court, is earned not in the nature of wages but, rather, [as] payment[ ] provided in lieu of compensation, based on the claimant's inability to work. Toborkey, 655 A.2d at 639 (footnote omitted; emphasis added). Fort James argues that its provision of sickness-and-accident benefits constitutes sick pay, as defined by the Toborkey court, and not sick leave. Irby does not challenge this definition. Rather, he argues that Fort James has not produced any evidence indicating who funded the sickness-and-accident benefits. Yet one of the exhibits introduced by Fort James at trial, and which Irby cites, clearly states, [the sickness-and-accident] benefits are not insured by [Aetna] but will be paid from the Employer's funds. Irby offers no evidence to contradict that statement. Irby argues that even if Fort James paid those benefits out of its funds, he received them because he was unable to work, not because he was disabled. However, this distinction is irrelevant. Irby was paid under a Temporary Disability Benefit plan maintained by Fort James that covered any time lost from work as the result of an injury. Fort James is allowed the setoff for any plan contemplated by Ala.Code 1975, § 25-5-57(c)(1), including one that merely provides sick pay. In fact, disability plans and plans providing for sick pay are listed separately in that statute. Fort James has provided substantial evidence indicating that it was the sole source of funding for the plan. Irby has not offered any evidence indicating that he funded any portion of his sick-pay plan. Therefore, we conclude that the Court of Civil Appeals erred in affirming the trial court's order denying Fort James a setoff of the workers' compensation benefits for the sickness-and-accident benefits Fort James had paid to Irby. We reverse its judgment on this issue.
+The trial court awarded Irby [o]ther benefits prescribed by the Worker's Compensation Law of the State of Alabama as existing on July 10, 1997. Fort James argues that this award is too broad and unspecific. Irby argues that, because the Workers' Compensation Act entitles him to certain benefits, he should be awarded those benefits and the trial court's order should be read to mean only those benefits. Ala.Code 1975, § 25-5-81(a) requires the trial court to make a conclusive decision on the action. A decision providing for other unnamed benefits lacks a conclusive nature; it implies that further proceedings must take place to determine just what those other benefits are. Moreover, Ala.Code 1975, § 25-5-81(c) sets the employee's burden of proof at either a preponderance of the evidence or proof by clear and convincing evidence. Whatever the particular burden Irby bore at trial, that burden was to prove that he was entitled to certain benefits. As Fort James explains, the Workers' Compensation Act provides for several different benefits, only some of which concern the narrow issue of compensation for an employee's disability. The Workers' Compensation Act provides for workers' compensation payments, Ala.Code 1975, § 25-5-57; medical expenses, Ala.Code 1975, § 25-5-77(a) and (b); vocational rehabilitation, Ala.Code 1975, § 25-5-77(c) through (e); reimbursement of mileage, Ala.Code 1975, § 25-5-77(f); and penalties for overdue compensation, Ala.Code 1975, § 25-5-59. Fort James cannot and should not be expected to allot funds just in case Irby later decides to claim benefits to which he does not now but later may believe he is entitled. The law must have more predictability than to allow such retroactive claims. We hold that the Court of Civil Appeals erred in affirming the trial court's order awarding other benefits to Irby.",standard of review
+95,1038344,1,3,"We review a grant of summary judgment “de novo, reading the record in the light most favorable to the non-moving party and making all reasonable inferences in its favor.”4 We “will affirm a grant of summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”5 “The applicability of both state and federal immunity are questions of law that are . . . subject to de novo review.”6 Under the de novo standard of review, we will “apply our independent judgment to questions of law, adopting the rule of law most persuasive in light of precedent, reason, and policy.”7 “Because this case raises the question of entitlement to qualified immunity, we ‘focus on the officers’ perspectives and perceptions, as it is what reasonable officers in their position could have thought that is dispositive of this issue.’ ”8 4 Russell ex rel. J.N. v. Virg-In, 258 P.3d 795, 801 (Alaska 2011). 5 Id. at 801-02. 6 Id. at 802 (quoting Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 2008)). 7 Id. 8 Olson v. City of Hooper Bay, 251 P.3d 1024, 1030 (Alaska 2011) (quoting (continued...) -9- 6807 We “exercise our independent judgment in reviewing whether a trial court has applied the appropriate legal standard in making its prevailing party determination.”9 But we “review a superior court’s determination of prevailing party status and attorney’s fees for abuse of discretion” and “will overturn such determinations only if they are manifestly unreasonable.”10",standard of review
+96,2757927,1,3,"Our threshold determination is whether there is sufficient evidence in the record to support the adjudication. As stated earlier, we review sufficiency-of-the-evidence claims in the juvenile context de novo. In re A.K., 825 N.W.2d at 49. Thus, we must first determine whether the State has proven beyond a reasonable doubt that D.S. violated the harassment statute. See id. In order to address whether there is sufficient evidence to support the adjudication, we must first review Iowa Code section 708.7(1)(b), which provides: A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person. As used in this section, unless the context otherwise requires, “personal contact” means an encounter in which two or more people are in visual or physical proximity to each other. “Personal contact” does not require a physical touching or oral communication, although it may include these types of contacts. Iowa Code § 708.7(1)(b) (2013). Next, we must look at the specific elements of the crime contained within the statute. The first element of the statute requires that a person purposefully and without legitimate purpose has personal contact with 8 another person. Id. We have previously defined the term “purposeful” within section 708.7(1)(b) as “[h]aving a purpose; intentional.” State v. Button, 622 N.W.2d 480, 484 (Iowa 2001) (quoting American Heritage Dictionary 1006 (2d ed. 1985)). While the term “purposefully” has been construed as a general-intent element in the context of our stalking statute, “the determination of whether a statute requires general or specific intent turns on the language of the act, read in the light of its manifest purpose and design.” State v. Neuzil, 589 N.W.2d 708, 711 (Iowa 1999) (classifying stalking as a general-intent crime and holding the purposeful requirement does not require proof of defendant’s subjective desires). General-intent crimes focus “not on the defendant’s mental state but on the result defendant’s purposeful acts cause in a reasonable person.” Id. In contrast, specific-intent crimes refer to the “defendant’s intent to do some further act or achieve some additional consequence.” State v. Buchanan, 549 N.W.2d 291, 294 (Iowa 1996) (quoting Eggman v. Scurr, 311 N.W.2d 77, 79 (Iowa 1981)). Specific-intent crimes designate “a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.” Neuzil, 589 N.W.2d at 711 (quoting Buchanan, 549 N.W.2d at 294). We have previously determined that “harassment is a specific intent crime.” State v. Evans (Evans II), 671 N.W.2d 720, 724 (Iowa 2003). Thus, the harassment statute requires that at the time the defendant purposefully has personal contact 1 with another, he or she also has the “specific intent to threaten, intimidate, or alarm” them. See State v. Evans (Evans 1It is undisputed that D.S. and T.B. had personal contact with one another on February 20. Both testified they engaged in oral communication with the other while in close, visual proximity to one another. 9 I), 672 N.W.2d 328, 331 (Iowa 2003); cf. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000) (recognizing there must be a concurrence of the actus reus and the mens rea). To determine whether there is sufficient evidence to support the adjudication, we rely on our definitions of the terms purposeful and personal contact, as well as our classification of harassment as a specific-intent crime. Therefore, the State needed to establish beyond a reasonable doubt that D.S. purposefully had personal contact with T.B. with the specific intent to do some further act or achieve some additional consequence: threaten, intimidate, or alarm her. Upon our de novo review of the record, we find the State failed to prove beyond a reasonable doubt that D.S. purposefully or intentionally put herself in personal contact with T.B. with the specific intent to threaten, intimidate or alarm T.B. Consequently, the juvenile court committed error in finding the State had proven D.S. committed the crime of harassment and in adjudicating D.S. delinquent. We have previously found purposeful personal contact where a defendant intentionally placed himself in contact with the victim, or where a defendant purposefully engaged in conduct leading to personal contact with the victim. See, e.g., Evans I, 672 N.W.2d at 330–31 (finding purposeful personal contact where defendant approached woman in store parking lot to examine her shoes); Evans II, 671 N.W.2d at 722–25 (finding purposeful personal contact where defendant went to the victim’s house uninvited on three separate occasions after the victim had repeatedly rebuffed defendant’s contact); State v. Reynolds, 670 N.W.2d 405, 410 (Iowa 2003) (finding purposeful personal contact where defendant followed victim in his SUV); Button, 622 N.W.2d at 484–85 (finding purposeful personal contact where, after being given repeated 10 opportunities to terminate an encounter with a police officer, defendant chose to act uncooperatively and belligerently, prolonging his detention wherein he ultimately made threatening statements to the officer). In Button we held the defendant made purposeful personal contact with a police officer, despite the fact that the charged incident occurred while the defendant was detained by law enforcement against his will. 622 N.W.2d at 484–85. The charges in Button arose from threatening statements made by the defendant after he was detained at a casino for being in a drunken state. Id. at 482. After police officers arrived at the scene, the defendant became “uncooperative to such an extent that he was placed under arrest.” Id. While in custody, the defendant made two threatening statements to the arresting officer, for which a jury found him guilty of harassment. Id. The defendant appealed, asserting that one “cannot commit purposeful contact when he is being held against his will.” Id. at 483. We rejected that argument, holding the defendant committed “purposeful acts when: (1) He chose to make the threats, turning the communication into harassment, and (2) He chose to be uncooperative leading to his detention and placing him in a position to make the threats.” Id. at 485. Specifically, we noted: Button had the choice to either answer [the officer’s] questions and be allowed to leave or continue to be argumentative and be forced to stay in [his] company. His fate was in his own hands. Button purposefully chose to be abusive and uncooperative, which ultimately led to his arrest and the detention where he made his threatening statements. Id. at 484. In Evans I, we found purposeful personal contact where the defendant approached the victim in a store parking lot and asked to 11 examine her shoes. 672 N.W.2d at 330–31. After the victim removed one of her shoes, the defendant attempted to take hold of her foot. Id. at 330. The victim pulled her foot away and quickly entered her vehicle and left the parking area. Id. The defendant later pulled up next to her car and smiled and waved. Id. Similarly, in Evans II, we found purposeful personal contact where the defendant repeatedly and intentionally initiated personal contact with the victim. 671 N.W.2d at 724–25. Defendant’s conduct in that case included: making repeated phone calls to the victim’s residence; approaching the victim at a drug store and a car wash; and on three separate occasions, appearing unannounced and uninvited at the victim’s residence. Id. at 722–23. Any purposeful personal contact involving D.S. in this case is clearly distinguishable from the defendants in Evans I and II and in Button. In those cases, the defendants intentionally placed themselves in contact with the victims, or purposefully engaged in conduct leading to personal contact with the victims. D.S., on the other hand, did not purposefully or intentionally initiate the personal contact with T.B., or purposefully engage in conduct that led to the personal contact. Rather, the record shows that both D.S. and T.B. exited the school bus after school as they had apparently done on every prior occasion without incident. The record shows that D.S. yelled “T bitch” to one of her other friends, which only incidentally spurred the encounter with T.B. The record revealed that the comment was not directed to T.B., and no evidence was presented that D.S. had any intention of initiating personal contact with T.B. D.S. testified that when she exited the bus and first yelled “T bitch,” she was not yelling at T.B. but rather her friend, T.F. The initial written statement provided by T.B. to Chief Orr noted that D.S. yelled, generally, “T bitch,” making no specific reference to T.B. 12 herself. The statement to Chief Orr further provided that after T.B. responded to D.S., D.S. replied, “I wasn’t talking to you . . . !” Thus, T.B.’s account to Chief Orr corroborates D.S.’s version of events, namely that D.S. “wasn’t talking to [T.B.],” and therefore did not act purposefully or intentionally in creating the encounter. There is insufficient evidence in the record to support this element of harassment. Moreover, as noted above, the harassment statute requires that at the time the defendant purposefully has personal contact with another, he or she also has the specific intent to threaten, intimidate, or alarm that person. Put another way, in order to sustain a conviction for harassment under section 708.7(1)(b), the State must prove beyond a reasonable doubt D.S. had formed the intent to threaten, intimidate, or alarm T.B. when she purposefully sought out the encounter. Accordingly, had the State established that D.S. purposefully or intentionally had personal contact with T.B., there is still no evidence in the record demonstrating that at the time D.S. initiated the contact with T.B. she possessed the requisite specific intent to threaten, intimidate, or alarm T.B. Because we have concluded that D.S. did not act purposefully or intentionally in creating the encounter with T.B., or that she possessed the requisite specific intent to threaten, intimidate, or alarm T.B. at the relevant time, we need not reach the issue addressed by the court of appeals regarding the proper definition of the word “intimidate” under section 708.7(1)(b). Further, because our decision on the sufficiency-ofthe-evidence argument provides D.S. the redress she seeks, we need not reach the constitutional issue raised in this case. See Hawkeye Land Co. v. Iowa Utils. Bd., 847 N.W.2d 199, 210 (Iowa 2014) (“If [a] case may be resolved on statutory grounds, we need not reach [the] constitutional 13 argument.”); State v. Seering, 701 N.W.2d 655, 663 (Iowa 2005) (recognizing our “duty to avoid constitutional questions not necessary to the resolution of an appeal”); Button, 622 N.W.2d at 485 (“Ordinarily we will not pass upon constitutional arguments if there are other grounds on which to resolve the case.”); State v. Fratzke, 446 N.W.2d 781, 783 (Iowa 1989) (“We note at the outset that we need not reach the constitutional questions because [the defendant’s] sufficiency of the evidence argument . . . gives him the redress he seeks.”).",sufficiency of the evidence
+97,4454215,1,2,"Contempt. Mark claims that the district court erred when it determined that Christina was not in contempt of the decree of grandparent visitation as a result of the May 19, 2018, event. We find no merit to this assignment of error. [5-7] We recently described civil contempt proceedings as follows: Civil contempt proceedings are instituted to preserve and enforce the rights of private parties to a suit when a party fails to comply with a court order made for the benefit of the opposing party. See, Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012); Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010), disapproved on other grounds, Hossaini v. Vaelizadeh, supra. Willful disobedience is an essential element of contempt; “willful” means the violation was committed intentionally, with knowledge that the act violated the court order. Hossaini v. Vaelizadeh, supra. - 308 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports KREJCI v. KREJCI Cite as 304 Neb. 302 Outside of statutory procedures imposing a different standard or an evidentiary presumption, all elements of contempt must be proved by the complainant by clear and convincing evidence. See, id.; Smeal Fire Apparatus Co. v. Kreikemeier, supra. Martin v. Martin, 294 Neb. at 117, 881 N.W.2d at 182. We are aware that a parent may use a child’s hesitation to visit a noncustodial person as a subterfuge for contumaciously interfering with the visitation. Mark relies on the event of May 19, 2018, to establish his claim of contempt. However, in Martin, we observed that a “singular event,” which is not in accordance with a court decree, may be defensible. Id. at 119, 881 N.W.2d at 183. Except for this event, the record shows that grandparent visitation had gone smoothly. To illustrate this history, we refer to the order dismissing the contempt complaint in which the district court found “[e]vidence was also adduced that as recently as March of 2018 [the granddaughter] traveled to Florida to visit with her grandfather over spring break. Her brother was unable to attend because of a recent ear surgery.” This case presents a singular event, but not a pattern. The district court heard the evidence and stated that the “primary reason” for the failure of grandparent visitation was the fact that it was scheduled on the deceased father’s birthday, which the court described as an “upsetting day.” In its order, the district court stated: “[The granddaughter] testified that she and her brother were very upset because the visitation was to take place on the birthday of their deceased father. She further testified that her mother, [Christina], did in no way encourage them not to participate in the visitation.” The district court accepted this testimony and did not err in doing so. The district court specifically found that with respect to the granddaughter, “[i]t definitely was her decision not to visit.” While we do not endorse the proposition that the responsibility for adhering to a visitation plan devolves to the children, - 309 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports KREJCI v. KREJCI Cite as 304 Neb. 302 a logical conclusion which results from the district court’s findings in this contempt case is that Christina did not encourage or instruct the minor children to refuse to participate in the grandparent visitation. The district court viewed the event of May 19, 2018, in the overall context of a general history of compliance with the decree and the unusual circumstances of that particular day persuaded it that Christina’s failure to strictly enforce the terms of the order on that date was not willful. The district court’s determination that Christina was not in contempt was not an abuse of discretion. Modification. Mark claims that the district court erred when it modified the grandparent visitation decree in its order filed after the contempt hearing. Given the procedural history of this case, we find merit to this assignment of error. Accordingly, we reverse that portion of the order of July 2, 2018, which modified the decree of grandparent visitation, and we vacate the order of modification. [8] At common law in Nebraska and elsewhere, “‘“grandparents lacked any legal right to visitation and communication with their grandchildren if such visitation was forbidden by the parents . . . . Indeed, the parents’ obligation to allow such visitation was a moral, not a legal obligation.”’” Hamit v. Hamit, 271 Neb. 659, 673, 715 N.W.2d 512, 525 (2006), quoting Pier v. Bolles, 257 Neb. 120, 596 N.W.2d 1 (1999). However, every state has adopted a statutory scheme permitting grandparent visitation under varying circumstances [i]n part due to changing demographics and the presence of single-parent households in which grandparents and other persons “outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of child rearing,” Troxel v. Granville, 530 U.S. 57, 64, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), and in part due to a recognition of “the importance of the grandparentgrandchild relationship in the lives of children,” Moriarty - 310 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports KREJCI v. KREJCI Cite as 304 Neb. 302 v. Bradt, 177 N.J. 84, 97, 827 A.2d 203, 210 (2003), cert. denied 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004) . . . . Hamit v. Hamit, 271 Neb. at 673-74, 715 N.W.2d at 525. Thus, in Nebraska, grandparent visitation is controlled by statute. Id. Modification of grandparent visitation may be ordered pursuant to § 43-1802(3), which provides: “The court may modify an order granting or denying such visitation upon a showing that there has been a material change in circumstances which justifies such modification and that the modification would serve the best interests of the child.” Because we determine, as explained below, that the process by which the district court modified the grandparent visitation plan was flawed in this case, we do not address the propriety of combining contempt and modification of grandparent visitation in one hearing upon proper notice. As explained in our statement of facts, Christina filed a complaint to modify the decree of grandparent visitation on June 21, 2018. An evidentiary hearing on Mark’s complaint for contempt was conducted on June 28. The district court dismissed Christina’s complaint to modify on its own motion on July 2, because it found that it lacked jurisdiction. The result of the evidentiary hearing on Mark’s complaint for contempt was contained in the district court’s order of July 2, in which it dismissed the complaint but proceeded to modify the decree of grandparent visitation. Mark contends in general that he did not receive proper notice that modification would be considered at the hearing of June 28, 2018, and in particular that he was denied the opportunity to present certain evidence that would have pertained to modification. The record is consistent with Mark’s contentions. [9] It is fundamental to due process that a person has reasonable notice and an opportunity to be heard appropriate to the nature of the proceeding and the character of the rights - 311 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports KREJCI v. KREJCI Cite as 304 Neb. 302 which might be affected by it. See Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018). The procedural record in this case shows that the district court effectively dismissed Christina’s complaint to modify prior to the contempt hearing and that it was reasonable for the parties to conclude that modification was off the table. In fact, the bill of exceptions shows that the court stated at the commencement of the hearing on June 28, 2018, that the purpose of the hearing was to consider Mark’s complaint for contempt. We agree with Mark’s contention that under the circumstances of this case, the court’s consideration and determination of modification as a consequence of the contempt hearing were improper due to a lack of notice and an opportunity to be heard. Accordingly, we reverse that portion of the order of July 2, 2018, which modified the decree of grandparent visitation, and we vacate the order of modification.",analysis
+98,2600188,1,5,"[¶ 17] Lopez disputes that the State presented sufficient evidence on these elements of second degree murder: 1) that he killed purposely and maliciously and 2) that the single open hand slap caused Herman's death. The elements of second degree murder are: Whoever purposely and maliciously, but without premeditation, kills any human being is guilty of murder in the second degree[.] Wyo. Stat. Ann. § 6-2-104 (LexisNexis 2003). [¶ 18] When used as an element of second degree murder, purposely means intentionally or deliberately. State v. Keffer, 860 P.2d 1118, 1138 (Wyo.1993). As so used in the second degree murder statute, `purposely' is a general-intent element that `describes the act to be committed and not an intention to produce a desired, specific result.'  Id. (quoting Crozier v. State, 723 P.2d 42, 54 (Wyo.1986)). Because second degree murder is a general-intent crime, the evidence to support a conviction for second degree murder must demonstrate the defendant acted with deliberation, but it does not require evidence that he deliberately killed. Keffer, 860 P.2d at 1138 (quoting Ramos v. State, 806 P.2d 822, 830 (Wyo.1991)). See also Young v. State, 849 P.2d 754, 761-62 (Wyo.1993). It follows that `purposely' distinguishes the act from one committed `carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly.' Keffer, 860 P.2d at 1138 (quoting Dean v. State, 668 P.2d 639, 642 (Wyo.1983) (quoting Matter of Adoption of CCT, 640 P.2d 73, 76 (Wyo.1982))). [¶ 19] Second degree murder requires proof of express, implied, constructive or legal malice. Keffer, 860 P.2d at 1138-39. The State must prove circumstances from which legal malice might be justly inferred. Nunez v. State, 383 P.2d 726, 729 (Wyo.1963). This form of homicide is a killing that cannot be justified under the law of self-defense, and requires murderous mens rea. See Keats v. State, 2003 WY 19, ¶ 28, 64 P.3d 104, ¶ 28 (Wyo.2003) (maliciously gives a statute a mens rea element, without which it would reach innocent conduct). The required state of mind for a murder conviction is that degree of mental disturbance or aberration of the mind that is wicked, evil and of unlawful purpose, or of that willful disregard of the rights of others which is implied in the term malice. Keffer, 860 P.2d at 1139. Where malice is absent, the crime is manslaughter even if the act that caused the death was done purposely. Id. [¶ 20] The State contends that sufficient evidence was presented when witnesses testified that Lopez had intentionally struck Herman. This evidence satisfies the element of purposely; however, for the element of maliciously, we have only the State's bald assertion that Lopez acted with a wicked mind when he struck Lopez. In reviewing sufficiency of the evidence claims, we look at all of the evidence in the light most favorable to the prevailing party. Estrada-Sanchez, ¶ 6. Our review of the record confirms that Lopez struck Herman once in sudden anger. Lopez claims that his sudden anger was caused by his concern that his friend would be harmed by drinking whiskey. That irony aside, precedent dictates that the evidence of Lopez' actions and motivations must be reviewed to determine his state of mind. Eagan v. State, 58 Wyo. 167, 201-10, 128 P.2d 215, 227-30 (Wyo.1942). [¶ 21] In the past, we have upheld murder convictions where death was not caused by a weapon but only with fists. Dryden v. State, 535 P.2d 483, 495-96 (Wyo.1975); see also Coca v. State, 423 P.2d 382, 387-88 (Wyo.1967). Those cases are distinguishable from this case because, in those cases, numerous vicious blows by a fist were inflicted. Id. Here, we have one open hand slap, not a blow or blows by a fist. In Wharton's Criminal Law, the statement is made that malice is not to be inferred by a blow with the hand. 2 Charles E. Torcia, Wharton's Criminal Law § 141, at 252, 255 (15th ed.1994). LaFave makes the general statement that it would be ridiculous to find murder because of a slap. 2 Wayne R. LaFave, Substantive Criminal Law § 14.2(b), at 432 (2d ed.2003). In an overview of the general state of law, it has been said: Since death is not the natural or probable result of a blow with the hand, it seems that no intent to kill will, under ordinary circumstances, be inferred, although death results from an assault thus committed. M.C. Dransfield, Annotation, Inference of Malice or Intent to Kill Where Killing is by Blow Without Weapon, 22 A.L.R.2d 854, at 857 (1952). Death caused by the repeated use of fists or feet or boots does present evidence of malice. [I]n appropriate cases, generally involving big men attacking small, frail men or women or children, and generally involving the repeated use of hands and feet, an inference of an intent to kill may properly be drawn. LaFave, supra, § 14.2(b), at 432 (emphasis added). [¶ 22] Both Colorado and Utah have recognized that there is a line of authority that since death is not the natural or probable result of a blow with the hand, no malice will ordinarily be inferred although death results from the assault. State v. Wardle, 564 P.2d 764, 765-66 (Utah 1977); Pine v. People, 168 Colo. 290, 455 P.2d 868, 869 (1969). These courts reason that the malice necessary to constitute a murder is presumed where the act is deliberate and is likely to be attended with dangerous or fatal consequences. Death or great bodily harm must be the reasonable or probable consequence of the act to constitute murder. The striking of a blow with the fist on the side of the face or head is not likely to be attended with dangerous or fatal consequences, and no inference of malice is warranted by such proof. Id. Both states, however, have recognized that an assault with hands or feet may support a conviction for second degree murder where the circumstances show that death resulted from a violent or brutal beating or blows inflicted to victims susceptible because of age or known infirmity. Id. Based on this precedent concerning fists, we believe it reasonable to conclude that these courts would not permit an inference of malice because a slap was delivered by an open hand. [¶ 23] We observe then that, generally, evidence that death caused by an open hand slap without more is insufficient evidence of malice and, therefore, is not murder. We must then review the record to see what other evidence exists from which we might infer malice. We first note that the record does not show any evidence that Lopez knew that Herman's condition was so frail that Lopez could cause Herman to die with just one slap to his head. The evidence shows that, in addition to the one slap, Lopez shoved Herman down onto a couch. We do not see where a harmless shove could reasonably be seen as the equivalent of repeated blows. The evidence also shows that Lopez became irrationally angry upon seeing that Herman was drinking; however, we have previously held that sudden anger that arises upon provocation is the provocation or lack of malice which makes a homicide manslaughter instead of murder. Jahnke v. State, 692 P.2d 911, 919 (Wyo.1984). [¶ 24] Having reviewed the evidence, we see that Lopez delivered one open hand slap and a man later died. Lopez acted purposely; however, the only evidence of malice is the single open hand slap, and we agree with long standing precedent that, without more, malice cannot be inferred from this minimal act. We hold that the evidence is insufficient as a matter of law that Lopez acted maliciously. Insufficient evidence to support an element of the charged offense amounts to a judgment of acquittal on that charge, and retrial is barred. Sarr v. State, 2004 WY 20, ¶ 7, 85 P.3d 439. [¶ 25] In Eagan v. State, 58 Wyo. 167, 128 P.2d 215 (Wyo.1942), Justice Blume examined evidence of malice and made a similar conclusion that the evidence was lacking. In the conclusion, he expressed well the sentiments we feel at coming to our conclusion, and we believe it bears repeating: After a most painstaking examination of the record before us, and consideration of the questions involved herein, we have, regrettable as the terrible tragedy was, and hesitant as we are to interfere with the verdict of the jury, come to the conclusion under the rules of law heretofore mentioned and the facts, that the defendant was clearly guilty of criminal carelessness, or, at least, that there was ample evidence for the jury to so find. There is, however, such serious doubt as to the defendant's guilt of a greater crime, that the jury should have resolved that doubt in his favor; that, accordingly, the verdict of the jury should be set aside as to murder in the second degree[.] Id., 58 Wyo. at 210, 128 P.2d at 230. [¶ 26] We, too, conclude that Lopez' second degree murder conviction must be set aside. In Eagan, the court sustained as to manslaughter, which was included in the verdict form, and ordered that the trial court re-sentence defendant for manslaughter. Lopez' verdict form also included voluntary manslaughter; however, we must examine whether the State proved that the slap caused Herman's death, and we must also examine the various ineffectiveness of counsel issues submitted. We now address those matters.",sufficiency of the evidence
+99,2215819,1,2,"Preliminarily, we consider our jurisdiction to review this matter. Supreme Court Rule 302(a)(1) allows for direct appeals to this court from final judgments of the circuit court in cases where a state statute is held invalid. See 134 Ill.2d R. 302(a)(1). Clearly, in this case, the circuit court effectively ruled that section 22(A)(24) was unconstitutional. The circuit court granted the preliminary injunction based on, inter alia, the finding that Desnick was likely to prevail on the merits of his complaint because he had shown section 22(A)(24) to be unconstitutional. Cf. Sommer v. Village of Glenview, 79 Ill.2d 383, 38 Ill.Dec. 170, 403 N.E.2d 258 (1980) (interpreting trial court's statements and order as holding state statute unconstitutional); Garcia v. Tully, 72 Ill.2d 1, 7, 17 Ill.Dec. 820, 377 N.E.2d 10 (1978) (trial court opinion and order found to apparently rest on finding state statute unconstitutional). An order granting a preliminary injunction, however, is an interlocutory order, which is normally appealable as a matter of right to the appellate court under Supreme Court Rule 307. See 134 Ill.2d R. 307. Nevertheless, this court has jurisdiction to permit a direct appeal from other than final judgments. See Garcia, 72 Ill.2d at 7, 17 Ill.Dec. 820, 377 N.E.2d 10; 134 Ill.2d R. 302(b) (permitting appeal to be taken directly to supreme court in cases where the public interest requires expeditious determination). Further, where the order appealed from rests on a finding of a statute's unconstitutionality, this court has assumed jurisdiction under Rule 302(a), notwithstanding the finality requirement. Garcia, 72 Ill.2d 1, 17 Ill.Dec. 820, 377 N.E.2d 10. Consequently, we will review the matter.",jurisdiction
+100,2504897,1,1,"Throughout its history, the Georgia Supreme Court has had appellate jurisdiction to consider appeals in murder cases. As the sole appellate court from 1845 until 1906, this Court received all appeals from the superior courts. See Dawson v. State, 130 Ga. 127, 129-130, 60 S.E. 315 (1908). In 1906, the Court of Appeals was established by a constitutional amendment that also set out the jurisdiction of both courts. Among the cases assigned to the Supreme Court were all cases of conviction of a capital felony. Ga. L. 1906, p. 24. The following year, this Court considered whether it had jurisdiction over the appeal of a murder case when the accused was imprisoned for life, instead of being sentenced to death. See Caesar v. State, 127 Ga. 710(1), 57 S.E. 66 (1907). In Caesar, the Court interpreted capital felony to mean felonies in which the death penalty may be affixed as a punishment, as distinguished from the class of felonies in which death can never be imposed under any circumstance. Id. at 712-713, 57 S.E. 66. Thus, the Court concluded that it had jurisdiction in every capital felony where the law provides for punishment by death as a penalty, whether or not the penalty is imposed in the specific case. The language assigning capital felony convictions to the Supreme Court was carried forward unchanged in the Georgia Constitutions of 1945 and 1976. Ga. Const. of 1976, Art. VI, Sec. II, Par. IV (in all cases of conviction of a capital felony); Ga. Const. of 1945, Art. VI, Sec. II, Par. IV (same). Similarly, this Court continued to interpret the conviction of a capital felony language as conferring on the Supreme Court appellate jurisdiction over cases in which the accused was found guilty of a capital felony. See, e.g., Mika v. State, 196 Ga. 473(2), 26 S.E.2d 616 (1943) (jurisdiction depends on whether there is a conviction of a capital felony and not on what punishment is actually imposed). See also Dawson, 130 Ga. at 132, 60 S.E. 315 (constitutional amendment gives the Supreme Court the power of ultimate determination of jurisdictional questions between the two courts). In 1977, this Court reexamined our jurisdiction over capital felonies after the Georgia General Assembly enacted a law affecting the jurisdiction of the state's two appellate courts. The act gave the Court of Appeals jurisdiction of appeals in cases involving armed robbery, rape, and kidnapping where the death penalty had not been imposed and the Supreme Court jurisdiction in cases involving state revenue, election contests, and the validity of municipal ordinances. Ga. L. 1977, p. 710, § 1. Inquiring into our own jurisdiction, we held that the legislative attempt to enlarge our jurisdiction by transferring certain appeals from the Court of Appeals to this Court was unconstitutional. Collins v. State, 239 Ga. 400(1), 236 S.E.2d 759 (1977). To effectuate the act's legislative intent, we adopted an order under our inherent powers directing the Court of Appeals to transfer cases involving state revenues, election contests, and the constitutionality of municipal ordinances to the Supreme Court. See id. at 403, 236 S.E.2d 759. On the issue of transfers to the Court of Appeals, this Court determined that the constitution permitted the change of appellate jurisdiction of armed robbery, rape, and kidnapping cases from our Court to the Court of Appeals. Citing our 1907 decision in Caesar v. State , we reaffirmed that the term capital felony applies to felonies to which the death penalty may be imposed under certain circumstances. Collins, 239 Ga. at 402, 236 S.E.2d 759. Since the death penalty could no longer be imposed for the crimes of armed robbery, rape, and kidnapping where the victim was not killed, we concluded that they were not capital felonies and the Court of Appeals had jurisdiction of appeals involving those crimes. Id. at 402-403, 236 S.E.2d 759. This ruling left unchanged our jurisdiction over all life-imprisonment murder cases, see id. at 404, 236 S.E.2d 759 (Jordan, J., concurring specially), since the crime of murder remained a felony to which the death penalty could be affixed as punishment under specific circumstances.",jurisdiction
+101,3188200,1,5,"We affirm the judgment of the district court and award costs on appeal to Walker. Chief Justice J. JONES and Justices EISMANN, BURDICK and W. JONES, CONCUR. 8",conclusion
+102,1755033,1,44,"We affirm the findings, conclusion, and recommendation of the State Commission on Judicial Conduct, and order that Respondent, Bill R. Lowery, be removed as Justice of the Peace, Precinct 2, Place 2, Irving, Dallas County, Texas. We further order that he be forever barred from holding judicial office.",conclusion
+103,2284496,1,1,"This case has been taken on direct appeal without allowance of interlocutory appeal by permission. Implicit in our exercise of jurisdiction in this case is a conclusion that an appeal from an order granting ARD over the Commonwealth's objection is effectively final, even though an order granting ARD with the consent of the Commonwealth and the defendant is deemed interlocutory. Cf. Commonwealth v. Feagley, 371 Pa.Super. 593, 538 A.2d 895 (1988); Commonwealth v. Hunter, 294 Pa.Super. 52, 439 A.2d 745 (1982). The critical distinction between Feagley and Hunter and this case may be explained as follows. Orders denying acceptance into ARD are not final because the challenge to the denial of ARD properly may be brought following trial if a conviction results. See Commonwealth v. Hunter, supra ; cf. Commonwealth v. Roeder, 353 Pa.Super. 137, 509 A.2d 373 (1986). Orders granting admission to ARD, acquiesced in by the Commonwealth and accepted by the defendant, are interlocutory because the parties have expressly agreed to have the charges held in abeyance pending completion or revocation of ARD. See Commonwealth v. Feagley, supra . When ARD is granted over an objection by either the Commonwealth or the defendant, however, any appeal would be rendered moot before appellate review could be had by the objecting party. That is the critical distinction. In Feagley, this author opined: Generally, an immediate appeal may only be taken from a final order. Pa.R.A.P. 341. A final order is one which disposes of the entire case or puts an appellant out of court with respect to a claim. Commonwealth v. Wills, 328 Pa.Super. 342, 476 A.2d 1362 (1984). In the instant case, appellant elected (wisely or not) to permit the charges against him to be held in in abeyance; the charges are not disposed of and he is not out of court on his claims. Thus, the order in question is not immediately appealable as a final order. Alternatively, even if an order is an interlocutory order rather than a final order, immediate appeal by right may be taken if the order is one of the types of interlocutory orders listed in Pa.R.A.P. 311. The instant order, however, is not. Consequently, the order in question is only appealable by right during appellant's participation in the ARD program if the order is appealable under the three prong  Cohen exception to the final order rule, also referred to as the collateral order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). The Cohen exception provides that an interlocutory order may be immediately appealed if: 1) the order is separable from and collateral to the main cause of action; 2) the right involved is too important to be denied review; and 3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. See Fried v. Fried, 509 Pa. 89, 94, 501 A.2d 211, 214 (1985); see also Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987). To qualify under the Cohen exception, all three factors must be met. See Fried v. Fried, supra, 501 A.2d at 214; Commonwealth v. Bonaparte, 366 Pa.Super. 182, 184-185 n. 1, 530 A.2d 1351, 1352 n. 1 (1987) (applying the Cohen test). In the instant case, any irreparable loss of appellant's ability to challenge the ARD conditions is clearly the result of appellant's election and not the order appealed. Consequently, I do not find this case to be appealable under the Cohen exception. 538 A.2d at 902. (Emphasis added). This limitation on the plurality decision highlights the critical distinction between Feagley and the instant case. In this case, unlike the situation in Feagley, appellee was admitted to ARD over the Commonwealth's objection. Because the delay in review in this case was not occasioned by an order to which the Commonwealth consented, Feagley is distinguishable and this case comes within the Cohen exception. Finally I note that this Court and our Supreme Court have previously entertained direct appeals in virtually identical cases (where ARD have been granted over Commonwealth objections) without finding the permissive interlocutory review practice applicable or required. See Commonwealth v. Lutz, supra ; Commonwealth v. Mowry, 358 Pa.Super. 233, 516 A.2d 1270 (1986); Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986). Thus, this appeal is properly before this Court for review.",jurisdiction
+104,2453269,1,1,"¶ 1 Fred, Laura, and Bret Selman, petitioners in this case, are principals of Harold Selman, Inc. (collectively, the Selmans). The Selmans own property that is bisected by the border of Box Elder County and Cache County. Running through the property is a trail that connects the cities of Mantua and Paradise. In 2007, both counties passed resolutions designating the trail as a county road. Shortly thereafter, Box Elder County commenced road construction activities on the trail. As a result of the construction, the Selmans brought several actions against Box Elder County alleging that the county's action violated numerous statutes. Additionally, the Selmans sought arbitration from the Office of the Property Rights Ombudsman (the Ombudsman's Office). The Ombudsman's Office accepted the case for arbitration, but Box Elder County sought to stay the arbitration and counterclaimed with a quiet-title action, contending it was the actual owner of the trail. ¶ 2 The district court stayed the arbitration, bifurcated the case, and held that the Ombudsman's Office did not have statutory authority to arbitrate the action since the threshold issue of ownership was in dispute. The court of appeals upheld the district court's decision. We granted certiorari on the issue of whether the court of appeals erred in affirming the district court's construction of the scope of the arbitration provision of the Property Rights Ombudsman Act. We hold that the plain language of the Property Rights Ombudsman Act [1] (the Ombudsman Act or the Act) grants the Ombudsman's Office authority to arbitrate the threshold issue of property ownership in takings and eminent domain disputes. Therefore, we reverse.",introduction
+105,6350754,1,1,"This case presents an appeal from the denial of a petition to set aside a conviction pursuant to Neb. Rev. Stat. § 29-2264 (Cum. Supp. 2020). The petitioner, with the assistance of a publicly funded pro bono program at the University of Nebraska College of Law, has been pursuing set asides of several eligible convictions. All preceding petitions had been successful, and the State supported the present set aside request. The district court expressed concern at the hearing regarding a recent weapons conviction. It also voiced certain misunderstandings, corrected by the State, about the effects of - 370 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRUNSEN Cite as 311 Neb. 368 setting aside convictions and whether other judges had fully reviewed the petitioner’s criminal record. The court hypothesized that as a result of the petitioner’s crimes being set aside, he could, ultimately, commit a future act of domestic terrorism and the media would direct blame upon the courts for having simply “signed off” on the process. The court also questioned whether the petitioner’s representation by a publicly funded educational program was a good use of taxpayer money. The petitioner asserts the court’s ruling was based upon untenable and unreasonable reasoning and impermissible bias and, thus, was an abuse of discretion.",introduction
+106,883993,1,7,"Did the District Court err in failing to release Collier or transfer her to a different detention facility due to conditions at the Cascade County jail? The District Court denied a motion to release Collier or transfer her to a different detention facility. The court determined that conditions at the Cascade County jail were not so deficient as to require a transfer. The State contends that Collier waived her right to appeal this issue when she pleaded guilty to the charge of criminal endangerment. However, we have already established that specific language in the plea agreement reserved Collier's right to appeal this and other issues. Collier contends that detaining her in the Cascade County jail was a violation of § 7-32-2222, MCA (1993), which states, in part: Health and safety of prisoners. (1) Each detention center must comply with state and local fire codes for correctional occupancy and with sanitation, safety, and health codes. Collier maintains that the Cascade County jail was not in compliance with state and local fire codes or with sanitation, safety, and health codes. Amy MacKenzie, a sanitary consultant with the Department of Health and Environmental Sciences, inspected the jail in June and December 1993 and again in May 1994. At the hearing on Collier's motion for release or transfer to another detention facility, MacKenzie testified that although the Cascade County jail was not in 100 percent compliance with the guidelines established by her office, the jail was not an imminent health hazard nor was it a public nuisance. Moreover, her office was working with jail staff to continually improve the conditions at the jail. Mel Shultz, a detention officer with the Cascade County Sheriff's Office, testified that some of the unsanitary conditions that Collier complained of were caused by Collier herself. Shultz testified that Collier would leave uneaten food in her cell for long periods of time and that she would refuse to exchange dirty coveralls for clean ones, sometimes wearing the same coveralls for up to a month. Accordingly, we conclude that Collier has failed to establish that conditions at the Cascade County jail were so deficient as to require her release or transfer to another detention facility and we hold that the District Court did not err in denying her motion. Affirmed. TURNAGE, C.J., and GRAY and LEAPHART, JJ., concur.",issues
+107,883303,1,14,"Did the District Court err when it failed to order a new sentencing due to irregularities at sentencing? Arlington maintains that the District Court erred when it failed to order a new sentencing due to irregularities at the sentencing hearing, including the testimony of an incompetent person. The State argues that the District Court did not have jurisdiction to decide whether the appellant was entitled to be resentenced. We agree with the State. On December 30, 1992, the District Court sentenced Arlington to ten years in the Montana State Prison, with six years suspended, and two years in prison for the use of a dangerous weapon. That same day, Arlington filed a notice of appeal to this Court. On February 24, 1993, Arlington filed a motion and brief before this Court requesting this Court to stay the appeal until the District Court conducted a hearing on his motion for a new trial based on newly discovered evidence. On March 16, 1993, this Court granted Arlington's motion to remand the case to the District Court to hear his motion for a new trial. The case was not remanded for the resolution of any other motion or issue. However, on May 21, 1993, the District Court conducted a hearing wherein it considered Arlington's motion for a new trial, his motion for dismissal due to prosecutorial misconduct, and his motion for resentencing. The District Court lost jurisdiction of the Arlington case at the time that he filed his notice of appeal to the Montana Supreme Court. State v. Laverdure (1984), 212 Mont. 31, 32, 685 P.2d 375, 376. See also Julian v. Buckley (1981), 191 Mont. 487, 491-492, 625 P.2d 526, 528. ([W]hen a notice of appeal has been filed, jurisdiction ... passes from the District Court and vests in the Supreme Court. It becomes the Supreme Court's duty to maintain the status quo of the parties until the controversy can be determined.) The only issue which the Supreme Court remanded to the District Court was the motion for a new trial based on newly discovered evidence. The District Court did not have jurisdiction to decide any other issue, including resentencing. We hold that the District Court did not have jurisdiction to decide whether Arlington should have been resentenced. Accordingly, Arlington cannot predicate error on the court's failure to resentence.",issues
+108,2123840,1,4,"Finally, Constable argues that the district court erred in overruling his motion for judgment of acquittal for insufficient evidence to support the guilty verdicts. When considering a sufficiency of the evidence challenge, this court examines the evidence in the light most favorable to the State, and considers all evidence presented at trial, not just the evidence which supports the verdict. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). This favorable light includes the making of any legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record to support the verdict. State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984); State v. Mulder, 313 N.W.2d 885, 888 (Iowa 1981). We will uphold the verdict of the jury when substantial evidence exists on the record to support the verdict. State v. Aldape, 307 N.W.2d 32, 39 (Iowa 1981). Evidence meets the threshold criteria of substantiality if the evidence would have convinced a rational fact finder that the defendant is guilty of the crime charged beyond a reasonable doubt. State v. LeGear, 346 N.W.2d 21, 23 (Iowa 1984). The defendant was convicted of five counts of sexual abuse in the second degree. Each of these five counts was based on proof that a sex act occurred with a child under the age of twelve. Iowa Code § 709.3(2) (1991). Constable does not argue that the ages of S.W. and J.H. were not proven at trial to be under twelve. Constable confines his argument to whether substantial evidence exists to find that five separate sex acts occurred within the five to ten minutes that J.W. was away from the home. Regarding the five-to-ten-minute period when the girls were alone with Constable, their testimony regarding his actions are fairly consistent and detailed. J.H. testified that Constable took S.W.'s hand and made her rub his middle thing. She said she used the term middle thing because she was not supposed to say the word. At trial, J.H. marked the genital area on drawings of the male and female body to indicate what region she was describing. J.H. also testified that under threat of spanking, Constable made S.W. kiss his middle thing. J.H. said Constable then offered S.W. money and cigarettes if she pulled her pants down and threatened to spank her if she refused. J.H. says Constable touched between S.W.'s legs with his tongue. S.W. corroborated that Constable had her touch his private spot and that he had her move her hand while holding his middle thing. S.W. also testified that three years earlier she had brought untrue allegations of sexual abuse against her father. J.H. and S.W. both testified that after contact with S.W., Constable abused J.H. J.H. testified that Constable had her touch his middle thing with her hand and that he made me do the same thing [S.W.] did, just rub up and down. J.H. testified Constable held his hand on her head so she could not get away from him. She had told S.W. to go turn off the light in her room, hoping that S.W. would contact help once away from Constable. S.W. testified that she saw J.H. touch Constable's middle thing with her hand and that then J.H. asked her turn off her light. S.W. left the room to turn off her light and then went to the bathroom. S.W. said she then wanted to go downstairs but went back in the room because J.H. was in there. Viewing this testimony in the light most favorable to the State, substantial evidence existed upon which a jury could find beyond a reasonable doubt that Constable committed five sex acts in violation of Iowa Code section 709.3(2) (1991).",sufficiency of the evidence
+109,2614597,1,1,"¶2 On the morning of November 20, 1996, Rettenberger, then age eighteen, was taken into custody by the Woods Cross Police for questioning concerning the murder of Matthew John Wicker. Detective Jeff Corbin, a detective with the Bountiful Police Department Metro Narcotic Strike Force, gave Rettenberger his Miranda warnings. [1] Rettenberger had never previously been arrested or interrogated by the police. At approximately 11:30 a.m., Detective Corbin began to interrogate Rettenberger. At the outset of the interrogation, Detective Corbin reminded Rettenberger of his rights under Miranda — DETECTIVE CORBIN: Todd, at the Sheriff's Office I talked to you a little bit about your rights. You know, we discussed, you know, the thing with the attorney and what not. I just want to verify that you have those rights and that you can exercise those rights any time you feel like it. MR. RETTENBERGER: Okay. A few minutes later, after Detective Corbin had informed Rettenberger that he was a suspect in the murder case, the following exchange took place: DETECTIVE CORBIN: What I want you to do at this point is to be your own best friend. I want you to tell me what you know. I want you to help me to help you so that I can explain to the judge this wasn't pre-meditated, that it was a heat of the moment thing that happened. Things got out of hand, he struggled with you guys. MR. RETTENBERGER: There's no way, there's no way that I even did this. I am getting, I'm getting an attorney. I am pleading innocent. I was not there, I did not murder this guy. DETECTIVE CORBIN: That is your right to plead innocent. MR. RETTENBERGER: And I do not know nothing about this. DETECTIVE CORBIN: Let me go see if the rest of the information is ready. MR. RETTENBERGER: Can I go now? DETECTIVE CORBIN: Nope, hang on. Let me go see what else we've got. We've got stuff coming in right and left, so — Detective Corbin then exited the room. He returned shortly and resumed questioning of Rettenberger. Later in the interrogation, a similar exchange took place: MR. RETTENBERGER: Can, can I have a lawyer talk to you guys? Do I have that right? DETECTIVE CORBIN: I told you your rights, remember, at the Sheriff's office? MR. RETTENBERGER: Yeah, I just need to — DETECTIVE CORBIN: And I told, and I told you — let me finish. I told you your rights over here. I told you what I expected and what you could expect from me, okay? ¶3 The first interrogation lasted approximately one and one-half to two hours. Towards the end of the first interrogation, Rettenberger began to admit his involvement in the murder. At the conclusion of the first interrogation, Rettenberger was placed in solitary confinement at the Davis County correctional facility. At approximately 2:30 the following afternoon, Rettenberger was again interrogated. At the beginning of the second interrogation, Rettenberger attempted to recant his previous inculpatory remarks, but later in the interrogation he again admitted that he had been involved in the crime. Both interrogations were videotaped, and the tapes have been viewed by the district court and this court. ¶4 During the interrogations, the interrogating officers, Detective Corbin and Officer Timothy, made several references to the potential penalties facing Rettenberger, including the death penalty. They refused to allow him to speak with his mother and refused to allow him to use the restroom. As we discuss below, the officers lied to Rettenberger numerous times concerning the existence, nature, and strength of evidence they had collected against him. ¶5 Before trial the defendant moved to suppress his confession on the grounds that (1) his confession was the involuntary result of police coercion and (2) he had invoked his rights to counsel and to remain silent and that those invocations were not honored by the police. ¶6 During the suppression hearing, Vicki Gregory, Ph.D., J.D., testified that based upon her evaluation of Rettenberger and a review of his medical and psychological records she formed the expert opinion that he had Attention Deficit Disorder (A.D.D.), a below average I.Q., and the maturity level of a fifteen-year-old. She also testified that he exhibited symptoms of depression, anxiety disorder, thought disorder, schizophrenia, and Dependent Personality Disorder. Dr. Gregory concluded that Rettenberger would be highly susceptible to psychological manipulation by police interrogators, that he would be overly compliant and dependent upon the police officers, and that he would tend to agree with the officers' statements during an interrogation in order to relieve his stress. Dr. Gregory also opined that Rettenberger would experience greater anxiety in solitary confinement than would the average person. ¶7 The district court found that Dr. Gregory's conclusions were consistent with the testimony of Detective Corbin. Detective Corbin testified that, based on his experience with one of his own children, he recognized that the defendant exhibited symptoms of A.D.D., had the maturity level of a fifteen-year-old, was under extreme stress and anxiety during the arrest and interrogations, and was afraid of the death penalty. ¶8 The district court first ruled that Rettenberger's requests for an attorney were equivocal and therefore the officers had no obligation to stop the interrogation. The district court also concluded that, although a close call, the interrogation was not objectively coercive. On that basis, the district court concluded it was unnecessary to examine whether Rettenberger's confession was voluntary. [2] ¶9 We now address Rettenberger's contention that the district court erred in ruling that his confession was not coerced and in declining to consider whether the confession was involuntary. Because we reverse the district court's ruling and hold that Rettenberger's confession was the involuntary product of police coercion, we need not address the other issues raised on appeal.",facts
+110,1676101,1,8,"For the reasons expressed, we find that, through section 777.201, the Legislature established entrapment as a statutory defense to be evaluated under the federal subjective entrapment test and, by such action, eliminated the objective test we announced in Cruz. As such, we disapprove Bowser v. State, 555 So.2d 879 (Fla.2d DCA 1989). We additionally find that section 777.201 neither prohibits the judiciary from objectively reviewing the issue of entrapment to the extent such a review involves the due process clause of article I, section 9, of the Florida Constitution, nor prohibits the judiciary from determining under the subjective test that, in certain circumstances, entrapment has been established as a matter of law. In this case, we find that, under the subjective test, Manuel Munoz was entrapped as a matter of law. Although the district court in this case correctly noted that section 777.201 abolished the objective entrapment test set forth in Cruz, it did not reach the conclusion that Munoz was nevertheless entrapped as a matter of law. Consequently, we quash the decision of the district court and remand this case with the direction that the trial court's order of dismissal be reinstated. It is so ordered. BARKETT, C.J., and McDONALD, GRIMES and HARDING, JJ., concur. KOGAN, J., concurs with an opinion, in which BARKETT, C.J., concurs. SHAW, J., concurs in result only.",conclusion
+111,2691679,1,7,"{¶ 46} The appellants' memorandum in support of jurisdiction contained five propositions of law, including the following: {¶ 47} Proposition of Law No. 3: Appellees' de facto debarment rule is preempted by R.C. Chapter 4115, a comprehensive scheme balancing the competing public interests in prevailing wage compliance and competition for public contracts. {¶ 48} Proposition of Law No. 4: The settlement agreements and court proceedings cannot legally be considered as establishing a violation of law, 15 SUPREME COURT OF OHIO because such [a] finding would be contrary to both the language of the agreements and the public policy favoring resolution of disputes through mediation and settlement. {¶ 49} Proposition of Law No. 5: Because the state has not ‘found’ that [The Painting Company] violated the prevailing wage law within the last ten years, Appellees abused their discretion because either the Standards are void for vagueness or the Commissioners' interpretation constituted an unannounced bid criterion. {¶ 50} This court accepted jurisdiction over Proposition of Law III only. State ex rel. Associated Builders & Contrs. of Cent. Ohio v. Franklin Cty. Bd. of Commrs., 120 Ohio St.3d 1415, 2008-Ohio-6166, 897 N.E.2d 651. I dissented. Id. {¶ 51} As I have explained in the past, I disagree with this court's practice of picking and choosing, within a case, the issues that we are willing to review. If a case is worthy of review, in the interests of providing justice to the parties and because, until we see the entire record, it is exceedingly difficult to ascertain the interplay of various issues, all appealed issues should be before us. Whether we address each issue at that point is, of course, within our considered discretion. Meyer v. United Parcel Serv., Inc., 122 Ohio St.3d 104, 2009-Ohio2463, 909 N.E.2d 106, ¶ 60 (Pfeifer, J., dissenting). {¶ 52} Apparently a majority of this court now agrees with my dissent in Meyer because, even though this court accepted jurisdiction over Proposition of Law III only, the majority opinion also addresses Propositions of Law IV and V. I do not disagree with that approach; in fact, I applaud it. But wouldn't it be better for parties and their attorneys if this court accepted jurisdiction without limitation? The current practice is confusing. Attorneys don't know whether they should argue issues that aren't before us; based on this case, they should. 16 January Term, 2010 Attorneys also don't know whether they can safely ignore issues that we have told them are not before us; based on this case, they shouldn't.",jurisdiction
+112,1255994,1,2,"This Court must now determine whether the information contained in the affidavit prepared by Detective Hobby presented sufficient information to enable a magistrate to make a threshold determination of probable cause. In so doing, we note that the parties do not challenge the superior court's findings of fact. Therefore, the scope of our inquiry is limited to the superior court's conclusions of law, which are fully reviewable on appeal. State v. Smith, 346 N.C. 794, 797, 488 S.E.2d 210, 212 (1997). As this Court acknowledged in State v. Beam, when addressing whether a search warrant is supported by probable cause, a reviewing court must consider the totality of the circumstances. 325 N.C. 217, 220-21, 381 S.E.2d 327, 329 (1989); see also Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527, 548 (1983); State v. Riggs, 328 N.C. 213, 219-20, 222, 400 S.E.2d 429, 433-34 (1991); State v. Arrington, 311 N.C. 633, 641, 319 S.E.2d 254, 259 (1984). In applying the totality of the circumstances test, this Court has stated that an affidavit is sufficient if it establishes reasonable cause to believe that the proposed search ... probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender. Probable cause does not mean actual and positive cause nor import absolute certainty. Arrington, 311 N.C. at 636, 319 S.E.2d at 256 (citations omitted). Thus, under the totality of the circumstances test, a reviewing court must determine whether the evidence as a whole provides a substantial basis for concluding that probable cause exists. Beam, 325 N.C. at 221, 381 S.E.2d at 329; see also Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548 (concluding that the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis' to conclude that probable cause existed) (citation omitted). In adhering to this standard of review, we are cognizant that great deference should be paid a magistrate's determination of probable cause and that after-the-fact scrutiny should not take the form of a de novo review. Arrington, 311 N.C. at 638, 319 S.E.2d at 258. We are also mindful that: A grudging or negative attitude by reviewing courts toward warrants is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner. [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Riggs, 328 N.C. at 222, 400 S.E.2d at 434-35 (alterations in original) (citations omitted). Most importantly, we note that a magistrate is entitled to draw reasonable inferences from the material supplied to him by an applicant for a warrant. Id. at 221, 400 S.E.2d at 434. To that end, it is well settled that whether probable cause has been established is based on `factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act.' Id. at 219, 400 S.E.2d at 433 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949)) (alteration in original), quoted in Gates, 462 U.S. at 231, 103 S.Ct. at 2328, 76 L.Ed.2d at 544.  Probable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required. State v. Zuniga, 312 N.C. 251, 262, 322 S.E.2d 140, 146 (1984) (emphasis added). Here, the magistrate was entitled to rely on his personal experience and knowledge related to residential refuse collection to make a practical, threshold determination of probable cause. Based on the facts before him, the magistrate was entitled to infer that the garbage bag in question came from defendant's residence and that items found inside that bag were probably also associated with that residence. This conclusion is particularly bolstered by the location of the garbage bag and the fact that Detective Hobby retrieved it from defendant's yard at approximately 8:00 a.m. on the regularly scheduled garbage collection day in defendant's neighborhood. The marijuana plants gathered from the garbage bag, taken in conjunction with defendant's drug-related criminal history and the information obtained by the Raleigh Police Department linking defendant to a heroin sale and overdose established, based on the factual and practical considerations of everyday life, that there was a fair probability that contraband and evidence of a crime would be found in defendant's residence. Thus, the information contained in Detective Hobby's affidavit constituted a substantial basis for the magistrate to find probable cause sufficient to issue a search warrant for defendant's residence. For the reasons stated above, the superior court's conclusion is inconsistent with the jurisprudence of this State, which establishes that a magistrate's [r]easonable inferences from the available observations, particularly when coupled with common or specialized experience, long have been approved in establishing probable cause. Riggs, 328 N.C. at 221, 400 S.E.2d at 434. As a result, the search warrant was properly issued and the superior court erred in granting defendant's motion to suppress the evidence of the 1 October 2002 search of his residence. Accordingly, the decision of the Court of Appeals is reversed. This case is remanded to the Court of Appeals for further remand to the Wake County Superior Court for further proceedings consistent with this opinion. REVERSED AND REMANDED.",analysis
+113,4450092,1,1,"As noted above, Oliveira-Coutinho in his amended motion for postconviction relief set forth almost 50 separately stated claims. The district court analyzed those claims in groupings and denied an evidentiary hearing on all claims. On appeal, Oliveira-Coutinho makes a general claim that the district court erred when it denied his claims without an evidentiary hearing. Oliveira-Coutinho then argues that the court erred when it found most but not all of his specific claims to be without merit; he argues the claims with varying degrees of depth. We begin our analysis herein by setting forth standards that are applicable to our review of each postconviction claim. We then review all the claims Oliveira-Coutinho argues on appeal pursuant to those standards, and as discussed below, we determine that the claims were properly denied without an evidentiary hearing. Although we have reviewed each specific claim that Oliveira-Coutinho raises on appeal, our analysis below discusses in depth only certain claims that warrant such discussion, and we address the remaining claims in a more general fashion. Finally, we note that because the district court did not err when it denied Oliveira-Coutinho’s claims without an evidentiary hearing, it also did not err when it denied his motion for appointment of postconviction counsel. Postconviction Standards. [3,4] Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable. State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019). Thus, in - 161 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. State v. Martinez, supra. [5,6] A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant’s rights under the Nebraska or federal Constitution. State v. Martinez, supra. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing. Id. Oliveira-Coutinho’s claims for postconviction relief assert that he received ineffective assistance of counsel. Because Oliveira-Coutinho was represented both at trial and on direct appeal by the same lawyers, this motion for postconviction relief was his first opportunity to assert ineffective assistance of counsel. See id. [7-9] A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial. State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018). To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. State v. Taylor, supra. To show prejudice under the prejudice component of the Strickland test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s deficient performance, the result of the proceeding would have been different. State v. Taylor, supra. A reasonable probability does not require that it be more likely than not that the deficient per­formance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine - 162 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 confidence in the outcome. Id. The two prongs of this test may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel’s actions were reasonable. Id. With these principles in mind, we review Oliveira-Coutinho’s claims of ineffective assistance of counsel. Competency of Goncalves-Santos. Oliveira-Coutinho claims that the district court erred when it refused an evidentiary hearing on his claims that counsel failed to properly challenge, both at trial and on appeal, the competency of Goncalves-Santos as a witness. The district court generally found that these claims were refuted by the record. We conclude that the record shows that OliveiraCoutinho’s proposed challenges to Goncalves-Santos’ competency would not have been successful and that therefore, the district court did not err when it refused an evidentiary hearing on the claims. In three separately stated claims in his amended motion, Oliveira-Coutinho generally claimed that counsel failed to (1) challenge Goncalves-Santos’ competency at trial, (2) raise on direct appeal the trial court’s error in allowing GoncalvesSantos to testify, and (3) “bring to the attention” of the trial court the mental competency of Goncalves-Santos. In these claims, Oliveira-Coutinho generally alleged that GoncalvesSantos had exhibited behaviors that indicated violent and antisocial tendencies that called his mental competency into question. The district court determined that these postconviction claims were refuted by the record, which showed that counsel filed a motion challenging Goncalves-Santos’ competency, that the trial court overruled the motion after a hearing, that counsel asked for a reconsideration, and that the trial court denied reconsideration. The court also stated that this court affirmed the trial court’s ruling on these matters on direct appeal. Oliveira-Coutinho argues on appeal that the district court’s description of the record is inaccurate because counsel - 163 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 requested an advance ruling only on what questions he might ask Goncalves-Santos regarding his competency and that counsel did not file a motion to determine Goncalves-Santos’ competency. Oliveira-Coutinho claimed in his amended motion that counsel should have gone further than seeking to cross-­examine Goncalves-Santos regarding his behavior and that instead, counsel should have asked the court to order a competency evaluation of Goncalves-Santos so that the court could determine whether he was competent to be a witness. We agree with Oliveira-Coutinho that the district court in its postconviction order improperly focused on the motion regarding cross-examination rather than the actual focus of OliveiraCoutinho’s claim, which was that counsel should have moved the trial court to order a mental competency evaluation and determine whether Goncalves-Santos was mentally competent to be a witness. In our opinion in Oliveira-Coutinho’s direct appeal, we stated that prior to trial: Oliveira-Coutinho filed a motion for advance ruling seeking to cross-examine Goncalves-Santos about his sexual relations with animals, his killing or harming of animals, his threats to kill his wife, and any other violent or antisocial tendencies or behaviors. . . . Oliveira-Coutinho argued that this evidence was relevant and went to the competency of Goncalves-Santos as a witness under rule 601. State v. Oliveira-Coutinho, 291 Neb. 294, 308-09, 865 N.W.2d 740, 756 (2015). See Neb. Rev. Stat. § 27-601 (Reissue 2016). The trial court determined that Oliveira-Coutinho could not pursue the line of questioning because the matters “had no bearing on Goncalves-Santos’ competency as a witness.” State v. Oliveira-Coutinho, 291 Neb. at 309, 865 N.W.2d at 756. On direct appeal, Oliveira-Coutinho assigned error to this ruling. We affirmed the ruling on appeal on the basis that the competency of a witness was an issue to be determined by the court and not by the jury. We noted, however, that - 164 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 “Oliveira-Coutinho did not assign that the district court erred in finding that Goncalves-Santos was competent to testify.” Id. at 332, 865 N.W.2d at 770. The issue decided by the trial court and affirmed by us on direct appeal was whether Oliveira-Coutinho would be allowed to cross-examine Goncalves-Santos on matters that allegedly went to his mental competency. But Oliveira-Coutinho’s claim for postconvicton relief was that counsel should have sought a competency evaluation and should have sought to bar Goncalves-Santos’ testimony because he was not mentally competent. It appears that trial counsel did not file such a motion, and we specifically stated in our opinion on direct appeal that Oliveira-Coutinho did not assign error to the trial court’s finding that Goncalves-Santos was competent to testify. We therefore think the district court erred when it stated that the issue raised in these claims had been presented to the trial court and this court on direct appeal. Nevertheless, we determine that for other reasons, the district court did not err when it refused an evidentiary hearing on these claims. In ruling that Oliveira-Coutinho could not crossexamine Goncalves-Santos regarding the matters he alleged had a bearing on mental competency, the trial court reasoned that such matters had no bearing on Goncalves-Santos’ competency to testify. In its February 10, 2012, order overruling the motion, the trial court stated: Under Nebraska law, every person is competent to be a witness except as otherwise provided in the Rules of Evidence. Neb.Rev.Stat. § 27-601. Even insanity or mental illness does not automatically render a witness incompetent to testify; only when the witness is unable to comprehend the obligation of an oath, or to understand and intelligently answer questions is the witness incompetent. Garcia v. State, 159 Neb. 571, 592, 68 N.W.2d 151, 165 (1955). There is no evidence that [Goncalves-Santos] is unable to comprehend the obligation of the oath or unable to answer questions asked of him. - 165 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 The State argues that the trial court’s reasoning indicates that even if counsel had requested a competency evaluation of Goncalves-Santos, the trial court would not have ordered such an evaluation and would not have determined that GoncalvesSantos was not competent to testify. Oliveira-Coutinho’s claims regarding Goncalves-Santos indicate that he is confusing concepts of competency of witnesses with issues of competency of a defendant to stand trial or to represent himself or herself. Oliveira-Coutinho claims counsel should have sought a competency evaluation and hearing for Goncalves-Santos, which evaluation and hearing seem similar to the type of evaluation and hearing that might be required to determine a defendant’s competency. However, Oliveira-Coutinho cites no statute, case, or other law that would authorize the court to require a witness to submit to a psychiatric evaluation to determine his or her mental competency to testify. Instead, as the trial court indicated, our rules of evidence provide, “Every person is competent to be a witness except as otherwise provided in these rules.” § 27-601. OliveiraCoutinho asserts no rule of evidence pursuant to which his allegations regarding Goncalves-Santos would render him not competent to be a witness. Furthermore, the trial court found no evidence that Goncalves-Santos was “unable to comprehend the obligation of the oath or unable to answer questions asked of him,” and Oliveira-Coutinho points to nothing in Goncalves-Santos’ extensive testimony at trial that would indicate otherwise. The district court erroneously reasoned that the claims asserted by Oliveira-Coutinho in this postconviction action with regard to Goncalves-Santos’ competency as a witness were addressed on direct appeal. Nevertheless, we determine that such claims did not allege a valid basis for relief and that the record refutes the merits of the claims. We therefore conclude that the district court did not err when it refused an evidentiary hearing on these claims. - 166 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 Jury Instruction Regarding Potential Mistrial. Oliveira-Coutinho claimed that counsel was ineffective for failing to object to “Preliminary Jury Instruction No. 1,” which he alleged stated in part, “Any juror who violates these restrictions I have explained to you jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. As you can imagine, a mistrial is a tremendous expense and inconvenience to the parties, to the Court and the taxpayers.” (Emphasis omitted.) He argued that counsel should have objected to this instruction because it was confusing and prejudicial to his case and would discourage jurors from reporting misconduct. The district court determined that the record refuted this argument because the first jury instruction “filed October 9, 2012,” did not contain the language alleged. The court also noted that Oliveira-Coutinho failed to cite any authority establishing that an objection to such an instruction would have been successful. Although our reasoning differs, we conclude that the court did not err when it denied this claim. The district court referred to the instructions “filed October 9, 2012,” and stated that they did not contain the language alleged by Oliveira-Coutinho. The record indicates that the instructions filed on October 9 were the instructions given at the close of evidence. Oliveira-Coutinho alleged that the instruction at issue was a preliminary jury instruction, and the record confirms that the language quoted in his amended motion was given as a preliminary jury instruction. The district court therefore erred when it indicated that the alleged instruction was not given. [10] However, the district court also stated that OliveiraCoutinho failed to cite authority showing that a challenge to the instruction would have been successful. We agree with the district court that Oliveira-Coutinho alleged no such authority. In his amended motion and in his brief on appeal, - 167 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 Oliveira-Coutinho argues that the instruction was inappropriate because it was confusing and could discourage jurors from reporting misconduct. But he cites no authority to support his contention that it was error for the court to give the instruction, and therefore, the argument appears to be a novel legal theory. We have held that “counsel’s failure to raise novel legal theories or arguments or to make novel constitutional challenges in order to bring a change in existing law does not constitute deficient performance.” State v. Sanders, 289 Neb. 335, 343, 855 N.W.2d 350, 357 (2014). Furthermore, Oliveira-Coutinho did not assert any actual prejudice that resulted from the instruction, such as juror misconduct that went unreported; he only alleged what might have occurred. We therefore conclude that the district court did not err when it denied this claim without an evidentiary hearing. Aiding and Abetting. Oliveira-Coutinho claims that the district court erred when it refused an evidentiary hearing on three claims related to the felony murder instruction, which allowed the jury to find him guilty based on a theory of aiding and abetting. In his amended motion, Oliveira-Coutinho claimed that trial counsel was deficient for (1) failing to object to the instruction, on the basis that he was not charged under a theory of aiding and abetting; (2) failing to challenge the constitutionality of § 28-206, which provides that “[a] person who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender”; and (3) failing to inform him prior to trial that he could be prosecuted under an aiding and abetting theory. We conclude that the district court addressed the first two of these claims and properly found that they did not warrant an evidentiary hearing. We further conclude that while the district court did not appear to explicitly address the third claim, the court did not err when it denied an evidentiary hearing on the claim, because Oliveira-Coutinho failed to adequately allege prejudice. - 168 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 Regarding the first claim, Oliveira-Coutinho claimed in the amended motion that counsel was deficient for failing to object to the felony murder instruction because the instruction allowed the jury to find him guilty on an aiding and abetting theory when he was not arraigned on an aiding and abetting theory. On appeal, Oliveira-Coutinho asserts that the district court did not decide the merits of this claim. Without further argument regarding the merits of the claim, he contends that we should remand the cause for an evidentiary hearing on the claim. [11] However, we find that the district court addressed this claim. The district court cited State v. Stark, 272 Neb. 89, 718 N.W.2d 509 (2006), for the proposition that an information charging a defendant with a specific crime gives the defendant adequate notice that he or she may be prosecuted for the crime specified or as having aided and abetted the commission of the crime specified. The district court concluded that because of this precedent, a challenge by counsel to the instruction would have been unsuccessful and therefore, counsel’s failure to make the challenge was not ineffective assistance. We agree with the district court’s reasoning. In addition to State v. Stark, supra, in State v. Contreras, 268 Neb. 797, 803, 688 N.W.2d 580, 585 (2004), we held that “notwithstanding the fact that the information charging the defendant does not contain specific aiding and abetting language, an aiding and abetting instruction is proper where warranted by the evidence.” We therefore agree with the district court’s conclusion that a challenge to the aiding and abetting instruction based on the failure to charge the offense under an aiding and abetting theory would not have been successful. We note that as part of this claim, Oliveira-Coutinho also asserted that the felony murder instruction omitted elements necessary to prove the crime under an aiding and abetting theory—specifically that he intended to commit the underlying felony or knew that the person he aided or abetted intended to commit the crime. He also appeared to assert as part of this - 169 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 claim that the evidence did not support an aiding and abetting theory. The State argues on appeal that the trial court instructed on the allegedly missing elements in a separate instruction relating to aiding and abetting and that there was sufficient evidence that Oliveira-Coutinho aided and abetted in the commission of a felony. We agree with the State’s arguments and agree that a challenge to the instruction on these bases would have been unsuccessful. We conclude that the district court did not err when it refused an evidentiary hearing on the claim that counsel was ineffective for failing to object to the felony murder instruction. Regarding the second claim, Oliveira-Coutinho alleged in the amended motion that counsel was deficient for failing to challenge the constitutionality of § 28-206. He asserted that the statute was unconstitutionally overbroad, and he argued that the statute was unconstitutional because it allowed the State to prosecute a defendant under an aiding and abetting theory without giving notice to the defendant. He argued that the statute “makes the fatal assumption” that those who are subject to it understand they can be prosecuted under an alternative theory, and he asserted that because he does not speak English, he was not aware of the possibility of being convicted as an aider or abettor. The district court rejected this claim, reasoning that Oliveira-Coutinho “fail[ed] to provide any authority creating a realistic constitutional challenged [sic] to the statute.” We agree with the district court that Oliveira-Coutinho provided no authority indicating that a constitutional challenge to § 28-206 would have been successful. Oliveira-Coutinho referred in his amended motion to an accused’s right to be informed of the nature of the charges against him; however, as discussed above, an information charging a defendant with a crime gives the defendant notice that he or she may be prosecuted for having aided or abetted the crime. In any event, the lack of notice argument is better understood as a due process challenge to the procedure by which the statute was - 170 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 implemented rather than a challenge to the constitutionality of the aiding and abetting statute itself. Similarly, OliveiraCoutinho’s argument that he did not understand the charges against him because of a language barrier would not undermine the constitutionality of § 28-206; instead, the argument relates to whether he received ineffective assistance of counsel in violation of the Sixth Amendment because counsel failed to ensure he was aware of the charges against him. That is the subject of the third claim discussed below. Because Oliveira-Coutinho did not adequately allege how § 28-206 was unconstitutional, we conclude that the district court did not err when it refused an evidentiary hearing on the claim of ineffective assistance for failing to challenge the constitutionality of the statute. Finally, regarding the third claim, Oliveira-Coutinho claimed in the amended motion that counsel was deficient for failing to inform him prior to trial that he could be prosecuted under an aiding and abetting theory. He asserted that had he known he could have been convicted as an aider and abettor, “he would have weight [sic] his options prior to proceed [sic] with the trial” and “could have insisted to enter into further plea negotiations or he would have opted to plea [sic] guilty to the State’s second plea offer.” Oliveira-Coutinho argues on appeal that the district court did not address this claim. We agree with Oliveira-Coutinho that the district court did not specifically address the claim that counsel was ineffective for failing to advise him that he could be convicted as an aider or abettor. Instead, this claim appears among the claims the court generally disposed of by stating that Oliveira-Coutinho failed to allege prejudice. We conclude that the court did not err when it refused an evidentiary hearing on this claim because Oliveira-Coutinho failed to adequately allege prejudice. The State argues on appeal that whether or not counsel’s performance was deficient in this respect, Oliveira-Coutinho failed to allege a claim of ineffective assistance of counsel, because he failed to allege how he was prejudiced by such deficient performance. The State argues that he did not allege - 171 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 that if counsel had properly advised him that he could be convicted on a theory of aiding and abetting, he would have entered pleas to the charges instead of going to trial. We agree with the State that Oliveira-Coutinho failed to adequately allege how he was prejudiced and that to the extent he did allege prejudice, the record refutes his allegations of prejudice. As quoted above, Oliveira-Coutinho alleged merely that if he had been properly advised, he would have weighed his options, “could have” insisted on further plea negotiations, or would have accepted “the State’s second plea offer.” The allegation that he would have weighed his options is too vague to establish that he was prejudiced, because it does not allege a specific course of action that he would have taken if he had been properly advised. Oliveira-Coutinho’s allegations that he “could have insisted to enter into further plea negotiations” and that he would have accepted “the State’s second plea offer” are more concrete allegations of specific actions he could or would have taken if properly advised. However, the record refutes that the alleged courses of action were viable. When he alleged in his amended motion that he “would have opted to plea [sic] guilty to the State’s second plea offer,” Oliveira-Coutinho referenced an exhibit attached to the amended motion. That exhibit, however, contradicts his allegation that he would have accepted “the State’s second plea offer.” The exhibit includes a letter from Oliveira-Coutinho’s trial counsel in which counsel actually stated that “[t]he State never made such an offer” and instead that counsel had made an offer that the State rejected. Counsel further stated that the State had previously made an offer for Oliveira-Coutinho to plead to “multiple counts of second degree murder with no sentencing agreement,” but that Oliveira-Coutinho had rejected that offer. Oliveira-Coutinho’s allegation that he would have accepted “the State’s second plea offer” is refuted by his own evidence which shows that no “second plea offer” had been made by the State. The exhibit further undermines his allegation that he “could have” - 172 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 insisted on further plea negotiations, because it shows that prior plea negotiations had resulted in an offer from the State that Oliveira-Coutinho did not find acceptable and because the State’s rejection of counsel’s counter-offer indicated that the State was not open to further plea negotiations that would have yielded a better plea deal than that already offered. This claim of ineffective assistance of counsel failed because Oliveira-Coutinho did not sufficiently allege prejudice and because his own exhibit undermined the allegations of prejudice that he did make. We therefore conclude that the district court did not err when it refused an evidentiary hearing on the claim that counsel was ineffective for failing to advise Oliveira-Coutinho he could be convicted under an aiding and abetting theory. State Vouching for Goncalves-Santos’ Credibility. Oliveira-Coutinho claims that the district court erred when it refused an evidentiary hearing on his claim that counsel was deficient for failing to raise on appeal “[s]everal instances throughout the State’s case in chief” in which the prosecutor was allegedly “vouching for the credibility” of GoncalvesSantos’ testimony. The district court found that the claim was without merit because counsel had raised the issue on direct appeal and that the assignment of error had been rejected because the error was not properly preserved. On appeal, Oliveira-Coutinho attempts to change his claim from counsel’s failure to raise the issue on direct appeal to counsel’s failure to preserve the issue for appeal by objecting at trial. We agree with the district court that the claim alleged in the amended motion was refuted by the record. In his amended motion, Oliveira-Coutinho claimed, “Appellate counsel provided deficient performance by failing to assign, raise, and argue during the direct appeal stage that the [p]rosecutor committed misconduct by vouching for the credibility of Goncalves-Santos.” He then quoted portions of the opening statement in which the prosecutor said - 173 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 that Goncalves-Santos would “tell . . . the truth” and that Goncalves-Santos had taken certain actions because “he wanted to tell the truth.” Oliveira-Coutinho also cited to portions of the trial record in which two homicide investigators who had interviewed Goncalves-Santos testified that when they interviewed him, they let him know they expected him to tell the truth. Oliveira-Coutinho further cited to portions of the State’s closing statement in which the prosecutor made comments similar to the quoted comments from the opening statement. Oliveira-Coutinho claimed that a competent attorney would have “noted, assigned and argued prosecutorial misconduct by and when [the] prosecutor vouched for the credibility of [the State’s] star witness.” In its order denying postconviction relief, the district court noted that counsel had raised the issue on direct appeal to this court and that we rejected this assignment of error, in part because counsel failed to object at trial. To the extent any of the specific statements cited by Oliveira-Coutinho were not included in the assignment of error on direct appeal, the court determined that this court’s reasoning in rejecting the assigned error showed that inclusion of the specific statements would not have changed the result. The district court quoted a portion of our opinion in which we noted that by failing to object at trial, “Oliveira-Coutinho [had] likely waived any argument that the State erred in directly vouching for Goncalves-Santos.” State v. OliveiraCoutinho, 291 Neb. 294, 345, 865 N.W.2d 740, 777 (2015). However, we concluded that he had “preserved his argument that the State suggested the district court was also vouching for Goncalves-Santos.” Id. We rejected the assignment of error because whether or not the State’s comments amounted to misconduct, “such misconduct was not prejudicial to OliveiraCoutinho’s right to a fair trial.” Id. We concluded that “[t]he comments of the prosecutor during his opening statements were isolated in the overall context of the trial, [that] the jury was instructed specifically on Goncalves-Santos’ testimony as - 174 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 well as on issues relating to arguments of counsel versus evidence presented,” and that “the strength of the evidence overall was such that any alleged misconduct in opening statements was not prejudicial to Oliveira-Coutinho’s right to a fair trial.” Id. at 346, 865 N.W.2d at 778. The claim Oliveira-Coutinho set forth in his amended motion was that counsel failed to raise the issue on direct appeal. In fact, counsel raised the issue on appeal, but this court determined that the error had been waived because OliveiraCoutinho failed to object at trial. On appeal, Oliveira-Coutinho attempts to recast his claim as a claim that trial counsel was ineffective for failing to object and preserve the claim for direct appeal. But that is not the claim he made in his amended motion, and we will not consider an issue on appeal that was not presented to or passed upon by the trial court. See State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on other grounds, State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). The claim presented to the district court in this postconviction action was limited to the performance of counsel on direct appeal, and the district court did not err when it refused an evidentiary hearing on the basis that the record showed that counsel had in fact raised the issue on direct appeal. Issues Related to Attorney’s Representation of Oliveira-Coutinho. Oliveira-Coutinho claims that the district court erred when it refused an evidentiary hearing on claims he made related to his representation by an attorney, Matthew Kahler, when Oliveira-Coutinho was deciding whether to make a statement to law enforcement. The court found that the claims were procedurally barred because they were not raised on direct appeal, but it further found that the claims were refuted by the record. Assuming that the claims were not procedurally barred because they were fashioned as claims of failure to raise the issues on direct appeal, we conclude the district court did not err when - 175 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 it found that the claims were refuted by the record and that Oliveira-Coutinho could not show prejudice. In two separately stated claims in the amended motion, Oliveira-Coutinho alleged that (1) his counsel on direct appeal failed to assign and argue “violations of [his] Constitutional rights” and (2) “the State violated his Fifth, Sixth and Fourteenth Amendment rights in light of the fact that the prosecution had knowledge and possession of [Oliveira-Coutinho’s] trial strategy before he was charged and tried.” In the first of these two claims, Oliveira-Coutinho simply asserted, without further specifying the nature of the alleged constitutional violations, that appellate counsel provided deficient representation. In the second of the two claims, Oliveira-Coutinho began with the general allegation that the State had violated his constitutional rights, and then over several pages, he set forth how he thought the State violated his rights based on its role in finding an attorney to advise him at a time when he was considering making a statement to law enforcement. He generally alleged that after he invoked his right to counsel, the county attorney “was informed and personally appointed [Kahler] to represent” him, and that thereafter, Kahler disclosed “confidential communications” and “his trial strategy” to prosecutors. The district court in its postconviction order found that the claims related to Kahler were procedurally barred because they could have been raised on direct appeal. Apparently, the court read the second of the above-described claims in isolation from the preceding claim when it stated that it “could not identify an ineffective assistance of counsel argument within the claim[]” and therefore determined that the claim was procedurally barred. Although it was not made entirely clear in the amended motion that the two claims were meant to be read together, we will assume for purposes of review that the two claims were intended to be read together and that together, they set forth claims of ineffective assistance of counsel for failing to raise issues on direct appeal and are therefore not procedurally barred in this postconviction action. However, the district - 176 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 court found that even if the claims were not procedurally barred, they were refuted by the record. We agree. The district court in this postconviction action determined that Oliveira-Coutinho’s claim related to Kahler was refuted by the record because the trial court overruled OliveiraCoutinho’s suppression motion challenging, inter alia, the statement he provided to law enforcement while being represented by Kahler. The court stated in the postconviction order that in the order denying the motion to suppress, the trial court had specifically “found there was no error in any of the actions by the State or . . . Kahler at the time [Oliveira-Coutinho] provided his statement to law enforcement.” The court further determined that because Oliveira-Coutinho’s statement was not offered into evidence at his trial, he suffered no prejudice. Oliveira-Coutinho argues on appeal that appellate counsel deficiently failed to raise on direct appeal that “the State” violated his rights by “appointing” Kahler to represent him and that by “appointing” Kahler, brief for appellant at 18, the State “[i]nterfered [w]ith [Oliveira-Coutinho’s] [t]rial [s]trategy and . . . [o]btained [i]ncriminating [e]vidence,” id. at 22. OliveiraCoutinho asserts that after he invoked his right to counsel, officers who were questioning him contacted the county attorney and the county attorney “appointed” Kahler to represent him. Id. at 19. He further asserts that after advising OliveiraCoutinho “to confess everything he knew about the triplehomicide,” Kahler then “debrief[ed]” the prosecutors about what Oliveira-Coutinho told him during their conversation. Id. Oliveira-Coutinho argues he would not have made a statement to police if he knew that the attorney was not court appointed and that the attorney was acting as an agent for the State with the purpose of advising him to confess and then revealing his trial strategy to prosecutors. The district court determined that the record relating to Oliveira-Coutinho’s motion to suppress the statement refuted these claims. We therefore review the information disclosed in the trial record related to the motion to suppress the statement. - 177 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 Oliveira-Coutinho was questioned by investigators in this case “on February 1 and into February 2, 2010, and again later in February and March.” State v. Oliveira-Coutinho, 291 Neb. 294, 302, 865 N.W.2d 740, 752 (2015). “Oliveira-Coutinho was first questioned on February 1 . . . and was placed on a U.S. Immigration and Customs Enforcement (ICE) hold within 24 hours after the interview.” Id. at 312, 865 N.W.2d at 758. Oliveira-Coutinho “was not initially held by the State on any charges related to the Szczepanik family’s disappearance, but instead was placed on an ICE hold by the federal government.” Id. at 327, 865 N.W.2d at 767. “Between March 6 and 11, Oliveira-Coutinho contacted an investigator in this case and spoke to him, against his attorney’s advice, regarding Goncalves-Santos’ involvement on March 11.” Id. It is the March 11 statement that is relevant to Oliveira-Coutinho’s claims related to his representation by Kahler. Prior to trial, Oliveira-Coutinho moved to suppress, inter alia, the statement he made to investigators on March 11, 2010. With specific regard to the March 11 statement, he alleged that he had been interrogated in the presence of Kahler and that Kahler was neither appointed by a judge nor retained by Oliveira-Coutinho. After an evidentiary hearing, the trial court overruled Oliveira-Coutinho’s motion to suppress in an order filed August 30, 2012. In the order, the trial court noted the following facts relevant to the March 11, 2010, statement: Oliveira-Coutinho had been interviewed by Christopher Spencer, an Omaha police detective, a few times between February 1 and March 5. On March 11, based on telephone calls Oliveira-Coutinho had placed to him, Spencer arranged to have Oliveira-Coutinho brought to an interview room. Oliveira-Coutinho indicated that he wanted to continue talking with Spencer, but he inquired as to whether he could speak with an attorney first. Spencer told Oliveira-Coutinho he could retain an attorney, but Oliveira-Coutinho said he could not pay for an attorney. Spencer relayed Oliveira-Coutinho’s request for an attorney to Teresa Negron, the lead sergeant in charge of - 178 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 the case. Negron first attempted to contact one of the attorneys who would eventually become Oliveira-Coutinho’s trial counsel; however, after failing to reach that attorney, she contacted the county attorney, who in turn contacted Kahler. Kahler, who had previously been employed in the county attorney’s office but was now in private practice specializing in criminal defense, agreed to help. Kahler testified at the hearing on Oliveira-Coutinho’s motion to suppress. He testified that on the evening of March 11, 2010, he received two calls—one from Negron and one from the county attorney. The two asked him whether he would be willing to come to police headquarters to advise a suspect who had made statements to the police on whether or not he should make any further statements. Kahler’s understanding at the time was that a court would appoint him to represent the suspect if and when charges were filed. Kahler went to police headquarters, where, at his request, police officers briefed him about the investigation and previous statements OliveiraCoutinho had made. Kahler then met Oliveira-Coutinho and spoke with him through an interpreter. Kahler spoke with Oliveira-Coutinho with only the interpreter present for close to 2 hours. At the suppression hearing, Kahler replied “No” when the State’s attorney asked whether there was “anything about the answering of the questions or the advice that [he] gave to [Oliveira-Coutinho] that was impacted by any other person or any agency, whether it be law enforcement, County Attorney’s Office, or any other type of agency.” Kahler testified that he told Oliveira-Coutinho, inter alia, that Oliveira-Coutinho was “obviously considered a suspect by the police” and that therefore, Kahler had “concern about him giving a statement . . . about knowing information about what other people had done.” After Kahler had so advised him, Oliveira-Coutinho decided to continue speaking with officers. Kahler testified that OliveiraCoutinho made the decision on his own and gave the ensuing statement voluntarily. Spencer thereafter interviewed OliveiraCoutinho with Kahler and an interpreter present. - 179 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 After the interview, Kahler asked the officers whether Oliveira-Coutinho was being charged based on admissions he had made related to accessing the victims’ bank accounts; although officers were not certain, Kahler’s understanding was that he would be charged sometime soon. Kahler also spoke with the county attorney about being appointed by the court, and he assumed he would be formally appointed the next day. However, Kahler learned the next morning that no charges had been filed against Oliveira-Coutinho. Kahler did not thereafter pursue appointment, and he did not meet with OliveiraCoutinho again. The record shows that the State did not file any charge against Oliveira-Coutinho in connection with this case until approximately May 24, 2010, and that the court appointed different counsel at that time. In its order overruling Oliveira-Coutinho’s motion to suppress, the trial court stated with regard to the March 11, 2010, interview and Kahler’s representation as follows: [Oliveira-Coutinho’s] contention that . . . Kahler was not his attorney “at the time” of his interrogation on March 11th and in fact was “an agent of law enforcement and [the county attorney] and their attempt to get [OliveiraCoutinho] to speak to them” is unfounded. [OliveiraCoutinho] requested an attorney and before he made any further statements, a very well-qualified criminal defense attorney answered the call and provided him the help and legal advice he requested. After spending almost two hours privately with [Oliveira-Coutinho], Kahler then remained with him during the interview conducted by Spencer, whom [OliveiraCoutinho] agreed to speak to, Kahler’s professional advice notwithstanding. [12] With regard to these issues, Oliveira-Coutinho generally alleged violations of 5th-, 6th-, and 14th-Amendment rights. A criminal defendant’s Sixth Amendment right to the assistance of counsel attaches only after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, - 180 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 preliminary hearing, indictment, information, or arraignment. State v. Scheffert, 279 Neb. 479, 778 N.W.2d 733 (2010). Oliveira-Coutinho was not charged by the State until May 2010, and therefore, the Sixth Amendment right to counsel was not implicated at the time of the March 11 interview. OliveiraCoutinho’s references to the Fifth Amendment are not clear as to whether he is alleging a violation of his right to remain silent or a violation of his right to due process. But the crux of his allegation is that Kahler was somehow acting as an agent of the prosecution, including the county attorney and investigators, and that in that role, Kahler both encouraged Oliveira-Coutinho to confess and later disclosed Oliveira-Coutinho’s confidential trial strategy to the prosecutors. These allegations, however, are contradicted by the testimony of Kahler at the suppression hearing. Kahler testified that he expressed concerns about Oliveira-Coutinho’s providing a statement when he was considered a suspect and testified that despite such advice, Oliveira-Coutinho made his own decision to give a voluntary statement. Furthermore, testimony by Kahler and others at the suppression hearing refuted that Kahler shared any sort of confidential communications with the prosecution; instead, testimony at the suppression hearing indicated that Kahler and Oliveira-Coutinho were able to speak outside the presence of the investigators, and there is nothing to indicate that Kahler shared any confidential communications, much less trial strategy, with the prosecutors. Kahler testified to communications with the investigators that were limited to the investigators’ briefing him on what had occurred in the investigation of Oliveira-Coutinho. He also testified to communications with the county attorney but that such communications were limited to discussing how Kahler might be appointed by a court to represent Oliveira-Coutinho. Kahler testified that his advice to Oliveira-Coutinho was not influenced by law enforcement or the county attorney’s office. Kahler’s testimony and other testimony at the suppression hearing refute the claim that Kahler acted as an agent for the - 181 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 prosecution. Furthermore, Oliveira-Coutinho makes only general allegations of “trial strategy” that was disclosed by Kahler to the prosecution; he does not allege any specific information relevant to his trial strategy that Kahler learned and provided to the prosecution. Brief for appellant at 25. As the postconviction court noted, the limited involvement of Kahler at a time well before trial and before charges had been filed made it highly unlikely that he would have become privy to any significant trial strategy, which would have later been decided upon by Oliveira-Coutinho and his trial counsel, who were appointed months after Kahler’s limited involvement in this case. While we determine that these claims are not sufficiently stated and are materially refuted by the record, we take this opportunity to disapprove the process by which Kahler was apparently brought in to advise Oliveira-Coutinho. The testimony of both Spencer and Negron at the suppression hearing indicated that the process by which Kahler was brought in to advise Oliveira-Coutinho was not a typical occurrence. We think it should not be. The county attorney’s office should not be involved in finding an attorney to advise persons being questioned by investigators; the county attorney should remain independent and impartial in fact and in appearance, and any involvement of the county attorney in obtaining counsel to advise a suspect damages at least the appearance of impartiality. That having been said, the record refutes Oliveira-Coutinho’s claim that Kahler acted as an agent for the prosecution and provided confidential trial strategy to the prosecution. We therefore conclude that the district court did not err when it determined that Oliveira-Coutinho’s postconviction claims related to Kahler did not warrant an evidentiary hearing. Claims Not Addressed by District Court. In his brief on appeal, Oliveira-Coutinho asserts arguments with regard to various claims that he contends the district court did not address in its order denying postconviction relief. We - 182 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 find that several of those claims were addressed in connection with other related claims in one of the sections we discussed in our statement of facts above. However, there are some claims we do not think the court specifically addressed in one of these sections. We note that the court stated in its order, prior to addressing specific claims, that all of Oliveira-Coutinho’s claims of ineffective assistance of counsel were without merit because he failed to adequately plead prejudice or the record refuted any allegations of prejudice. Therefore, to the extent the district court did not appear to specifically analyze a particular claim, we have reviewed that claim on the basis that the district court found that the claim failed based on the prejudice prong of an ineffective assistance of counsel claim. There are a few claims set forth in Oliveira-Coutinho’s amended motion that we do not think were addressed in one of the sections in which the court discussed specific claims and instead were addressed only by the court’s general finding regarding prejudice. One of those claims was OliveiraCoutinho’s claim that counsel was deficient for failing to inform him he could be convicted under an aiding and abetting theory; we considered that claim in connection with other claims related to the aiding and abetting issue in an earlier section of our analysis, and we determined that the court properly denied the claim without an evidentiary hearing because Oliveira-Coutinho failed to adequately plead prejudice. Two other claims we do not think were specifically addressed by the district court were Oliveira-Coutinho’s claims that counsel was deficient (1) for failing to request a lesser-included offense instruction on the charge of accessory to a felony after the fact and (2) for failing to raise on appeal an issue related to the court’s “[u]nconstitutional interpretation of Neb. Rev. Stat. §27-1101.” We determine that the district court properly denied each of these claims without an evidentiary hearing. [13] With regard to the first of these two claims, OliveiraCoutinho claimed that counsel was deficient for failing to - 183 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 request instruction on “a lesser included offense of accessory to a felony after the fact pursuant to Neb. Rev. Stat. §28-204.” In the amended motion, this claim focused on the charge as being a lesser-included offense of first degree murder. But Oliveira-Coutinho’s arguments in his brief on appeal focus on its being a lesser-included offense of theft by deception. In any event, accessory to a felony is not a lesser-included offense of either greater offense. A court must instruct on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). Neb. Rev. Stat. § 28-204(1) (Reissue 2008) sets forth various ways in which one could “interfere with, hinder, delay, or prevent the discovery, apprehension, prosecution, conviction, or punishment of another for an offense” and therefore be guilty of being an accessory to a felony. The elements of accessory to a felony are not such that one could not commit either first degree murder or theft by deception without simultaneously committing accessory to a felony. Therefore, Oliveira-Coutinho would not have been entitled to a lesser-included offense instruction on accessory to a felony and he could not establish prejudice from counsel’s failure to request such an instruction. We conclude the district court did not err when it denied this claim without an evidentiary hearing. With regard to the second of these claims, in his amended motion, Oliveira-Coutinho claimed counsel on direct appeal was ineffective for failing to raise on appeal an issue related to the court’s “[u]nconstitutional interpretation of Neb. Rev. Stat. §27-1101.” He did not further explain the claim in the amended motion, but he cited to a portion of a pretrial hearing on his motion to dismiss due to loss of testimonial evidence. The trial court sustained the State’s hearsay objection to his question - 184 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 to an investigator which would have required the investigator to testify to statements made by Oliveira-Coutinho during the investigation. In his brief on appeal, Oliveira-Coutinho does not argue this claim beyond the allegations in his amended motion. Oliveira-Coutinho failed to allege how the trial court’s interpretation of the statute was “unconstitutional” or how counsel’s failure to raise the issue on appeal affected the outcome of the direct appeal. Therefore, Oliveira-Coutinho did not adequately allege a claim of ineffective assistance of counsel and the district court did not err when it denied this claim without an evidentiary hearing. Remaining Claims. With regard to the remaining claims that we have not specifically addressed above, we have reviewed such claims and the district court’s disposition of those claims. In our statement of facts, we described how the district court resolved each of these claims. We determine that the district court adequately addressed such claims and that its conclusions regarding such claims were proper. We conclude that the district court properly found that the claims should be denied without an evidentiary hearing, and we do not believe such claims warrant further discussion herein. In sum, we conclude that the district court did not err when it determined that the claims argued by Oliveira-Coutinho in this appeal did not warrant an evidentiary hearing. We therefore reject Oliveira-Coutinho’s assignment of error asserting that the district court erred when it determined that the claims should be denied without an evidentiary hearing. Appointment of Postconviction Counsel. [14,15] Oliveira-Coutinho also claims that the district court erred when it denied his motion for appointment of counsel. Under the Nebraska Postconviction Act, it is within the discretion of the trial court to decide whether counsel shall be appointed to represent the defendant. See State v. Taylor, 300 - 185 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. OLIVEIRA-COUTINHO Cite as 304 Neb. 147 Neb. 629, 915 N.W.2d 568 (2018). Where the alleged errors in the postconviction petition before the district court are either procedurally barred or without merit, thus establishing that the postconviction proceeding contained no justiciable issue of law or fact, it is not an abuse of discretion to fail to appoint postconviction counsel for an indigent defendant. See id. We therefore conclude the district court did not abuse its discretion when it denied Oliveira-Coutinho’s motion to appoint postconviction counsel.",analysis
+114,1192470,1,2,"Under the provisions of HRS § 269-16(f) (1993), an appeal from a final order of the PUC is taken to the supreme court. In re Kaanapali Water Corp., 5 Haw.App. 71, 76, 678 P.2d 584, 588 (1984). In such an appeal, the standard of review is set forth in HRS § 91-14(g) (1993). [10] In re Miller and Lieb Water Co., Inc., 65 Haw. 310, 311, 651 P.2d 486, 488 (1982). In Outdoor Circle v. Harold K.L. Castle Trust Estate, 4 Haw.App. 633, 638, 675 P.2d 784, 789 (1983), the Intermediate Court of Appeals (ICA) said that HRS § 91-14(g) requires that, in order for the court to revise or modify an agency decision, it must find that an appellant's substantial rights may have been prejudiced by an agency under one of the six subsections of the statute. The ICA also held that, under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects under subsection (3); findings of fact under subsection (5); and an agency's exercise of discretion under subsection (6). Id. In In re Application of Hawaii Electric Light Co., 60 Haw. 625, 629, 594 P.2d 612, 617 (1979), the supreme court further limited judicial review of administrative decisions by stating: In order to preserve the function of administrative agencies in discharging their delegated duties and the function of this court in reviewing agency determinations, a presumption of validity is accorded to decisions of administrative bodies acting within their sphere of expertise and one seeking to upset the order bears the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 602 [64 S.Ct. 281, 288, 88 L.Ed. 333] (1944), quoted in In re Application of Kauai Electric Division, 60 Haw. [166, 187], 590 P.2d [524,] 538 (1978); Savannah Electric and Power Co. v. Georgia Public Service Commission, [239 Ga. 156] 236 S.E.2d 87 (1977); Louisiana Power & Light Co. v. Louisiana Public Service Commission, 343 So.2d 1040 (1977); Alabama Gas Corp. v. Wallace, [293 Ala. 594] 308 So.2d 674 (1975). (Brackets added.) Additionally, courts decline to consider the weight of the evidence to ascertain whether it weighs in favor of the administrative findings, or to review the agency's findings of fact by passing upon the credibility of witnesses or conflicts in testimony, especially the findings of an expert agency dealing with a specialized field. In re Hawaii Electric Light Co., 60 Haw. at 629, 594 P.2d at 617.",standard of review
+115,2551649,1,1,"The Amended Complaint (the Complaint), appellants' opposition to the motion to dismiss, and their briefs on appeal present the following picture. [3] In May 1995, Hillblom, a resident of Saipan in the Commonwealth of the Northern Mariana Islands (CNMI), died in an airplane crash, leaving the Estate worth approximately $353 million. Hillblom's will, which directed that the bulk of the Estate be given to charity through the creation of a charitable trust, was admitted to probate in the Superior Court of the CNMI on July 17, 1995. Subsequently, several claimants filed petitions seeking a share of the Estate as Hillblom's pretermitted heirs. These heir claimants—Hillbroom, J.C., N.B.L., and M.F.—were established as Hillblom's biological children, after which each became known as a Qualified Heir Claimant (QHC). On April 6, 2000, after extensive litigation, the Estate, the charitable trust, the guardian ad litem and a trustee for Hillbroom, and guardians ad litem for J.C., N.B.L. and M.F. entered into a Global Settlement Agreement (GSA) that divided the Estate between the QHCs and the charitable trust, with the former receiving 60% and the latter receiving 40%. Under the GSA and an April 7, 2000 court order incorporating it, the Escrow Agent was named the legal successor to the Estate's interest in any refunds of estate tax paid by the Estate, and the Escrow Agent was to pursue refunds and receive and hold any recovered amounts for the benefit of the QHCs. A Tax Refund and Escrow Agreement (the Escrow Agreement) between and among the Escrow Agent and the QHCs and their guardians ad litem and trustees, made effective as of April 6, 2000, also described the Escrow Agent's responsibility to pursue the tax refunds. Execution of the GSA and the Escrow Agreement and issuance of the April 7, 2000 order enabled the Superior Court of the CNMI to close the Estate. Meanwhile, in June 1999, while the probate litigation was still underway, the Estate's Executor had reported to the IRS an estate tax deficiency in the amount of $43,348,728, and, on July 12, 1999, the Executor paid the deficiency to the IRS. On December 7, 1999, however, the Executor reported a corrected net estate tax amount of $37,655,193, resulting in a federal estate tax overpayment of $5,729,113. According to appellants' brief on appeal, the adjustment reflected the Estate's administrative expenses [having] increas[ed] well beyond estimated figures due to the dispute with the QHCs. Accompanying the December 1999 revised estate tax return was a legal memorandum to the IRS (the Refund Claim Memorandum), prepared by the Executor's tax counsel, that set forth in detail the grounds upon which the refund claim was based. According to the Complaint, the Refund Claim Memorandum claimed a refund for the $5,729,113 overpayment of federal estate taxes. Appellants assert that [a]ll that was needed was for a diligent tax professional to deliver the final refund application paperwork to the IRS. The Escrow Agreement directed the Escrow Agent to retain Jenner and PwC, who had served as tax advisors to the QHCs since 1998 to pursue the refund claims. The Complaint avers that in early May 2000, lawyers who had served as tax counsel to the Estate met with appellee Jenner and advised him of the possibility of additional [estate tax] refunds in light of the increased administrative expenses and instructed Defendant Jenner to pursue a claim for refund as a result of the additional estate administrative expenses. Thereafter, numerous additional administrative expenses and death taxes were incurred by the Estate which increased the amount of potential refund available to the QHCs. In a May 22, 2000 email from appellee Jenner to counsel for the QHCs (filed in the trial court as an exhibit to appellants' opposition to the motion to dismiss), appellee Jenner referred to the first claim for refund (already filed) and stated that there is little that needs to be done at this point, that Blumenfeld has made his determination granting the claim in its entirety, which must now be reviewed by the Joint Committee. [4] Jenner advised that [t]he refund procedure will run its course in due time and there is very little that can or should be done to expedite it. As to the additional claims for refund, Jenner advised that tactically it probably makes sense to wait for IRS approval of the first refund claim (presumably, the one claimed through the Refund Claim Memorandum) before filing additional claims, and explained that subject to any time limitations, which I will check on, to avoid a higher level of scrutiny, it would be better to `bank' the first [claim] before filing any additional claims. The pleadings do not explain when (or whether) the first refund claim was paid. [5] The Complaint states that, under Internal Revenue Code § 6511(a), the last day for [appellees] to file a claim for an estate tax refund [based on deductible administrative expenses] would have been ... July 12, 2001, [6] and, under other IRC provisions, the last day for [appellees] to file a claim for ... refunds [related to foreign or state death tax credits] would have been August 20, 2000. However, the Complaint avers, [n]o action was ever taken by [appellees] to pursue any refund claims and appellees never investigated or otherwise pursued any refund claims. Appellants assert that appellees never actually delivered the formal refund claim paperwork to the IRS. On December 10, 2002, the Escrow Agent and the QHCs engaged new legal counsel to pursue any and all claims for tax refunds to which the Estate may have been entitled on behalf of the QHCs. The Complaint states that although the applicable statutes of limitations for the QHCs' claims had already expired by the time new counsel was retained, the new attorneys pursued refunds under the theory that the Estate, although having failed to file a timely refund claim, had filed a protective claim for refund by submitting the Refund Claim Memorandum to the IRS. According to appellants' opposition to the motion to dismiss, [b]ased on the QHCs' position that an informal refund claim had been filed, the IRS paid in full the refund associated with the Estate's payment of foreign death tax credits. This transpired even though, according to the Complaint, at least some of the death tax credits had been identified after May 8, 2000 (i.e., well after the Refund Claim Memorandum was submitted in 1999), and even though appellees never investigated or otherwise pursued refund claims for these amounts either before the statutory deadline. With respect to other portions of the refund that the QHCs sought, however, [t]he IRS disputed [the] interpretation that the amounts were allowable on the basis of the 1999 protective claim. The Complaint avers that due to the uncertain nature of the law governing protective refund claims, appellants faced the real possibility of not receiving a refund at all if the refund claims were litigated. To resolve the dispute over the refunds without litigation, appellants agreed to settle with the IRS, and to accept a refund of $4,502,851, plus accrued interest. The settlement was approved by the Joint Committee on Taxation on December 17, 2007, and was executed on December 27, 2007. On June 22, 2009, appellants filed the instant lawsuit. The Complaint alleges that appellees negligently fail[ed] to file the refund claims on [appellants'] behalf before the expiration of the applicable statutes of limitation[s]. [7] If Jenner had timely filed the refund claim, appellants assert, they would have been entitled to over $10 million plus interest, instead of the approximately $4.5 million plus interest that they received from the IRS. The Amended Complaint sought damages of approximately $6.37 million, plus interest and consequential damages. On October 13, 2009, appellees filed their motion to dismiss, arguing that appellants' claim was barred by the three-year statute of limitations delineated in D.C.Code § 12-301 (2001). Appellees asserted that the three-year limitations period began to run at the very latest by December 10, 2002 (when appellants retained new counsel and admittedly were aware that appellees had missed the tax refund filing deadlines), and therefore expired years before appellants filed their Complaint. Opposing the motion to dismiss, appellants argued that while they became aware of appellees' omissions and inaction more than three years prior to filing their lawsuit claim, the lawsuit was timely filed because they did not suffer an actual injury, and the limitations period did not begin to run, until they settled their refund claims with the IRS in December 2007. Appellants also argued that regardless of the trial court's determination as to that issue, D.C.Code § 12-302 tolled the limitations with respect to the three minor QHCs. [8] On December 22, 2009, the trial court granted appellees' motion to dismiss, agreeing with Jenner and PwC that since appellants did not file suit until June 22, 2009, their claims were barred by the three-year statute of limitations. The court reasoned that appellants' injury occurred by December 10, 2002, when they hired new counsel and were aware that [appellees] had allowed the deadlines to lapse without taking action and knew that appellees missed the deadline to recover overpaid taxes. The court reasoned further that appellants suffered a separate injury at the same time when they retain[ed] new counsel and incur[red] additional litigation expenses. In addition, the court rejected appellants' argument that the running of the limitations period was tolled for the minor QHCs, citing the principle that a beneficiary [of a trust] cannot bring an action directly against a third-party wrongdoer ... rather, his relief is an action in equity against the trustee to compel the trustee to proceed against the third-party. [9] The court reasoned that while the QHCs might have a right of action against the Escrow Agent to compel the Escrow Agent to proceed against third-party wrongdoers, the QHCs could not bring an action directly against appellees as alleged wrongdoers. This appeal followed.",facts
+116,2690618,1,2,"{¶ 10} ODJFS argues that because of its contractual obligation to the United States Department of Labor, it was obligated to follow TEGL 2-03. ODJFS also argues that the letter reasonably interprets the ambiguity in the age requirement in the federal statute. Because of this ambiguity, the Department of Labor’s expertise in the area, and the reasonableness of the Department of Labor’s interpretation, ODJFS concludes that we should defer to the Department of Labor’s interpretation. The applicants counter that the requirement in TEGL 2- 03 that an applicant be 50 years old at the time of reemployment is unlawful and unreasonable and that neither the contractual obligations of ODJFS nor the principle of judicial deference to agency interpretations warrants reversal of the appellate court’s decision.
+{¶ 11} R.C. 4141.282(H) sets forth the standard of review for a decision made by the Unemployment Compensation Review Commission: “If the court finds that the decision of the commission was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse, vacate, or modify the decision, or remand the matter to the commission. Otherwise, the court shall affirm the decision of the commission.” This limited standard of review applies to all appellate courts. Irvine v. Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 18, 482 N.E.2d 587 (1985). “[A] reviewing court may not reverse the commission’s decision simply because ‘reasonable minds might reach different conclusions.’ ” Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio St.3d 332, 2011-Ohio2897, 951 N.E.2d 1031, ¶ 20, quoting Irvine at 18. {¶ 12} The parties offer conflicting interpretations of 19 U.S.C. 2318(a)(3)(B), and thus this case involves a question of statutory interpretation. 5 SUPREME COURT OF OHIO A question of statutory construction presents an issue of law that we determine de novo on appeal. Ceccarelli v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8, citing State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8. We accordingly review the statute to determine whether its meaning is clear. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If the statute’s meaning is unclear, our next task is to determine whether the agency’s interpretation is entitled to deference. “[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843. B. The Requirement of 19 U.S.C. 2318(a)(3)(B) that Applicants Be “at least 50 years of age” Is Ambiguous {¶ 13} The crux of the dispute between ODJFS and the applicants is whether the language of 19 U.S.C. 2318(a)(3)(B), which requires that those who apply for ATAA be at least 50 years of age, is ambiguous. ODJFS argues that the language is ambiguous and that the interpretation presented in TEGL 2-03 is reasonable. The applicants agree with the court of appeals that Congress clearly stated that an applicant must be 50 years old at the time he or she elects to receive ATAA benefits and that the statute is unambiguous. {¶ 14} “A statute is ambiguous when its language is subject to more than one reasonable interpretation.” Clark v. Scarpelli, 91 Ohio St.3d 271, 274, 744 N.E.2d 719 (2001). We agree with ODJFS that 19 U.S.C. 2318(a)(3)(B) is ambiguous, because it leaves open the question whether an applicant must be 50 years old at the time of reemployment or at the time application is made for benefits. To see the statutory ambiguity, one need look no further than the fact 6 January Term, 2012 that both ODJFS and the applicants offer reasonable and conflicting interpretations of the statute. On one hand, it is reasonable to read the statute as requiring applicants to be 50 years old at the time of reemployment. Applicants must have already obtained employment to satisfy 19 U.S.C. 2318(a)(3)(B)(ii), (iv), (v), and (vi), and thus it would be consistent to read subsection (a)(3)(B)(iii) to set the date of reemployment as the date upon which an applicant must be 50 years old. On the other hand, the applicants’ interpretation of the statute is also reasonable, in that subsection (a)(3)(B)(iii) could be read as saying that a worker must be at least 50 years of age at the time the worker elects to receive the benefits. Given that there are two reasonable readings of the statute, we hold that 19 U.S.C. 2318(a)(3)(B) is ambiguous. C. ODJFS’s Reasonable Interpretation of the Ambiguous Statute Is Entitled to Deference {¶ 15} As noted above, our standard of review in this case is deferential, and we do not agree with the applicants’ argument that the decision of the commission was unlawful and unreasonable. The statute is ambiguous, and the interpretation by ODJFS is reasonable and not contrary to law. Regardless of whether ODJFS was contractually bound to follow TEGL 2-03, the agency chose to adopt the United States Department of Labor’s reading of the statute as its own. In adopting this reasonable reading of the statute, ODJFS exercised its expertise and discretion, and we will not interfere with its reasonable and lawful decision. {¶ 16} To be clear, we do not hold today that ODJFS was bound to follow TEGL 2-03. We merely conclude that ODJFS’s interpretation is reasonable and entitled to deference given the ambiguity found in 19 U.S.C. 2318(a)(3)(b). R.C. 4141.282(H) sets forth a highly deferential standard for reviewing decisions of the Unemployment Compensation Review Commission, and this court will not reject a decision that is lawful and reasonable. 7 SUPREME COURT OF OHIO",analysis
+117,2067600,1,3,"Hampton first claims that the evidence was insufficient to convict her of both murder and robbery. When this Court reviews a conviction for sufficiency of the evidence, we look to the evidence most favorable to the State and all of the reasonable inferences to be drawn from such evidence. See Blanche v. State, 690 N.E.2d 709, 712 (Ind.1998) (citing Deckard v. State, 670 N.E.2d 1, 3 (Ind.1996)). We do not reweigh the evidence or assess the credibility of witnesses, but merely look to the evidence and determine whether there was substantive probative evidence to support the judgment. See id. at 712. Hampton claims that the evidence was insufficient to support her convictions because there is no evidence she committed either crime. She argues that the evidence establishes only her presence at the crime scene, and mere presence is insufficient to sustain a conviction. Hampton's characterization of the evidence is incomplete, however. While the murder of Joseph Randle was proved in part by the use of circumstantial evidence, a verdict may be sustained based on circumstantial evidence alone if that circumstantial evidence supports a reasonable inference of guilt. See Taylor v. State, 676 N.E.2d 1044, 1047 (Ind.1997) (citing Green v. State, 587 N.E.2d 1314, 1315 (Ind.1992)). Presence at the crime scene alone cannot sustain a conviction, but presence when combined with other facts and circumstances, such as companionship with the one engaged in the crime, and the course of conduct of the defendant before, during, and after the offense, may raise a reasonable inference of guilt. See Wright v. State, 690 N.E.2d 1098, 1106 (Ind.1997). Furthermore, this conviction could also be sustained on the theory of accessory liability. Under this theory, one who aids, abets, or assists in a crime is equally as culpable as the one who commits the actual crime. See Johnson v. State, 687 N.E.2d 345, 349 (Ind.1997). The State argued accessory liability and the jury was instructed as to accessory liability. Hampton argues that she cannot be convicted on a theory of accomplice liability because she was not charged as an accomplice. However, the Indiana statute governing accomplice liability does not establish it as a separate crime, but merely as a separate basis of liability for the crime charged. See Ind.Code § 35-41-2-4 (1998); Voss v. State, 469 N.E.2d 788 (Ind. Ct.App.1984) (citing Hoskins v. State, 441 N.E.2d 419, 425 (Ind.1982)). Where the facts in the case raise a reasonable inference that the crime was carried out with an accomplice, it is appropriate for the judge to give such an instruction. See Wright, 690 N.E.2d at 1104. The facts in this case support a reasonable inference that Carolyn Hampton either murdered and robbed Randle or aided her boyfriend Ratcliff in robbing and murdering Randle. Hampton's bloody palmprint was found on the wall above Randle's body. Her fingerprints were found on several items in the house, including a drinking glass in the bedroom, and a health care card usually kept in Randle's missing money pouch. Further, Hampton herself admitted to being at the crime scene at the time one neighbor heard loud noises from Randle's house, and another neighbor saw someone leave the house carrying items which looked like the items stolen from Randle's house. Further, the jury heard testimony that Hampton, like other home health care providers, would be familiar with the habits of Randle, including where he kept his money. This information included the fact that Randle kept money in a file cabinet, and the location of the key to the file cabinet. This key was later found on the living room floor. The jury also heard testimony that only those areas in which Randle regularly kept money were ransacked. Finally, the jury heard testimony that it would have been impossible to wrap blankets around Randle in the manner in which he was found without the help of at least one other person. Based on this information, the jury could have reasonably believed that the crime was committed by someone familiar with Randle's habits and that this person was Hampton.",sufficiency of the evidence
+118,6350762,1,6,"Here, the district court ordered the DNA testing that Buckman requested, and the State does not argue in its brief that the court erred in doing so. We begin by recalling the proc­ ess after such testing is ordered and results are received. 1. Procedure In the appeal from Buckman’s first proceeding under the DNA Testing Act, we set forth the procedure applicable after a court orders DNA testing. 9 Subsequent amendments to the act have not altered the procedure. 10 After DNA testing results are obtained, the question is whether the evidence obtained exonerates or exculpates the movant. Based on the test results, the movant may obtain relief in one of two ways, each of which requires a different quantum of proof. As previously noted, when the test results exonerate or exculpate the movant, the court may “vacate and set aside the judgment and release the person from custody.” § 29-4123(2). However, if the court does not vacate and set aside the judgment, the movant may file a motion for new trial based upon “newly discovered exculpatory DNA or similar forensic testing obtained under the DNA Testing Act.” 11 We elaborated on when a court may vacate a conviction and release the person under § 29-4123(2) and when it may order a new trial under § 29-4123(3). 12 We explained: 8 Id. 9 State v. Buckman, supra note 6. 10 See, 2015 Neb. Laws, L.B. 245, § 3; 2007 Neb. Laws, L.B. 296, § 48. 11 State v. Buckman, supra note 6, 267 Neb. at 515, 675 N.W.2d at 381. 12 See State v. Buckman, supra note 6. - 314 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 [T]he court may vacate and set aside the judgment in circumstances where the DNA testing results are either completely exonerative or highly exculpatory—when the results, when considered with the evidence of the case which resulted in the underlying judgment, show a complete lack of evidence to establish an essential element of the crime charged. . . . This requires a finding that guilt cannot be sustained because the evidence is doubtful in character and completely lacking in probative value. . . . [I]n other circumstances where the evidence is merely exculpatory, the court may order a new trial if the newly discovered exculpatory DNA evidence is of such a nature that if it had been offered and admitted at the former trial, it probably would have produced a substantially different result. 13 2. Whether Results Are Exonerative or Exculpatory [3] With this understanding, we turn to consideration of whether the DNA testing results exonerated or exculpated Buckman. We recall that postconviction DNA evidence that does not falsify or discredit evidence that was necessary to prove an essential element of the crime does not exonerate the movant. 14 DNA testing results that are not incompatible with trial evidence of the movant’s guilt fail to exonerate the movant of guilt. 15 We are also mindful of the definition of exculpatory evidence contained in the DNA Testing Act: “[E]xculpatory evidence means evidence which is favorable to the person in custody and material to the issue of the guilt of the person in custody.” 16 13 Id. at 518, 675 N.W.2d at 383. 14 See State v. Parmar, 283 Neb. 247, 808 N.W.2d 623 (2012). 15 Id. 16 See § 29-4119. - 315 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 Buckman argues that the DNA testing results contradict the State’s theory at trial and create a reasonable doubt about guilt that would have produced a substantially different result at trial. Because the State presented evidence at trial that blood consistent with that of Stawkowski was on the steering wheel cover and floormats of Buckman’s car but subsequent DNA testing found no evidence of blood, he contends that the scientific evidence used by the State to place him at the scene of the crime has been discredited. [4] The results of testing on the steering wheel cover and floormats is best regarded as inconclusive. When DNA test results are either inculpatory, inconclusive, or immaterial to the issue of the person’s guilt, the results will not entitle the person to relief under the DNA Testing Act. 17 Although Helligso was unable to detect any blood on the steering wheel cover or floormats, she testified that did not mean an expert who said there was blood present in 1988 was wrong. Buckman also contends that the DNA testing yielded exculpatory evidence because it excluded him as the source of semen/sperm found on Stawkowski at the time of her death. We disagree that the result fits within the definition of exculpatory evidence. What is important is that evidence must be “material to the issue of the guilt of the person in custody” in order to be exculpatory. 18 Buckman was not charged with a sexual assault, and his exclusion as the source of the semen was not material to whether he was guilty of murder or using a weapon to commit a felony. We also disagree with Buckman’s characterization of the evidence at trial regarding the semen. He called such evidence “exhaustive,” 19 “a great measure of evidence,” 20 and “a 17 State v. Amaya, supra note 7. 18 See § 29-4119. 19 Brief for appellant at 41. 20 Id. - 316 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 s­ potlight [of] the prosecution.” 21 The bill of exceptions from the trial spanned over 1,600 pages; fewer than 40 of those pages referred to semen, sperm, or Stawkowski’s sexual activity. Forty-six witnesses testified; four of those witnesses provided testimony about semen and Stawkowski’s having sexual intercourse. Over 200 exhibits were offered; 5 exhibits related to either Stawkowski’s panties or swabs from her vagina and rectum. The trial record shows that evidence concerning semen was a small part of the overall picture. To begin, the prosecution warned in its opening statement that there was “no indication that [Stawkowski] had been sexually assaulted” or that the semen discovery “has anything to do with this case.” Then, Stawkowski’s husband testified that he did not have knowledge of Stawkowski’s having sexual intercourse with anyone on the day in question. Next, Till, the pathologist, testified that Stawkowski’s body was fully clothed, that he found sperm in her vagina, and that the sperm could have been there within 8 hours of her death. After that, Schanfield testified that following testing of the panties extract and vaginal swab extract— which were among a number of items he tested—he was unable to draw any conclusions as to the genetic markers of the person responsible for the semen. Later, Roy offered her testimony about the numerous items of evidence she tested, which included testimony that Buckman was among the 35 percent of the male population who could be the possible semen donor and that the semen she found on the vaginal swab could not have been there longer than 12 hours. Moving to closing arguments, semen was first mentioned by the defense. Finally, in the State’s rebuttal argument, the prosecutor told the jury that whether the murderer also committed a sexual assault was “not one of the mysteries of the case that we have to solve.” The presence of semen from someone other than Stawkowski’s 21 Id. at 42. - 317 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 husband seemed to be more of an unexplained happenstance than a focal point of the prosecution. Buckman relies on State v. Parmar. 22 There, a jury convicted LeRoy J. Parmar of first degree murder. Two eyewitnesses at trial testified that Parmar had physically assaulted the victim and that he was the only male present when the victim was robbed and killed. 23 Subsequent DNA testing on bloodstains found on the victim’s bedsheet excluded Parmar as a contributor. Two of the six samples contained mixed DNA from two male contributors—although the male victim was a contributor, Parmar was not. We agreed with the trial court that the DNA testing results did not exonerate Parmar; however, we determined that the court erred in denying Parmar a new trial. We noted that the testing results completely excluded Parmar as a contributor to the DNA samples found on the victim’s bedsheet, that the results established the presence of an unidentified male’s DNA, and that the results were contrary to the testimonies of two key eyewitnesses against Parmar. We concluded that the DNA testing results tended to create a reasonable doubt about Parmar’s guilt and that they were probative of a factual situation different from that testified to by the State’s two eyewitnesses against Parmar. Parmar is distinguishable. There, the testimonies of the two eyewitnesses were the key evidence against Parmar and the DNA testing results were probative of a situation contrary to their version of the facts. In the instant case, there was no eyewitness to the murder. Nor was there evidence that Stawkowski had been sexually assaulted at the time of the murder. And as discussed next, a multitude of other circumstantial evidence tied Buckman to the murder. [5] If DNA testing does not detect the presence of a prisoner’s DNA on an item of evidence, such result is at best inconclusive, especially when there is other credible evidence 22 State v. Parmar, supra note 14. 23 See id. - 318 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 tying the defendant to the crime. 24 Evidence at trial established that Buckman was dissatisfied with either the quantity or the quality of drugs he was buying from Stawkowski and that he had threatened to steal drugs from Stawkowski. When Stawkowski’s body was found, her purse—which had contained cocaine—was missing. The day prior to the murder, Buckman was trying to sell clothing to get money needed to pay Fisher’s babysitter. After the murder, and after Stawkowski’s purse containing approximately $2,000 went missing, Buckman spent large amounts of money and still possessed over $600 at the time of his arrest. Hours before the murder, Buckman had a gun in his possession; the same caliber gun was used to shoot Stawkowski. A cellmate of Buckman testified that Buckman bragged of killing Stawkowski over drugs, taking “$4500 of drugs” from her, and using it to pay off debts. Other evidence tied Buckman to the scene of the murder. Witnesses placed Buckman with Fisher in the hours before and after the murder, and Fisher was picked up on a road near the location of the murder at approximately 1:30 a.m. Buckman was known to wear slippers in public, and slippers were located near the murder scene. Buckman smoked Kool cigarettes and opened his cigarette packages from the bottom. A Kool cigarette butt was found in Stawkowski’s car and testing showed that Buckman fell within the 4.8 percent of the African-American population who could have smoked it. A package of Kool cigarettes, opened from the bottom, was located in a field near Stawkowski’s car. Stawkowski could not be excluded as the source of blood found on items of clothing that Buckman was wearing at the time of his arrest, on the slippers found near the murder scene, and on the steering wheel cover and floormats of Buckman’s car. In sum, the evidence regarding blood on the steering wheel cover and floormats was inconclusive and the evidence 24 State v. Amaya, supra note 7. - 319 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 excluding Buckman as the source of the semen was not material to the crimes charged. Given all of the other evidence linking Buckman to the crimes, the testing results were not of such a nature that they probably would have produced a substantially different result if offered at trial. We find no error in the district court’s findings of fact, and we conclude the court did not abuse its discretion in sustaining the State’s motion to dismiss.",analysis
+119,4528170,1,1,"Crime Scene and Autopsy Photographs. Britt claims generally that the district court erred when, over his objection, it admitted numerous crime scene and autopsy - 372 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 photographs generally showing the bodies of the murder victims. He specifically claims that such admission violated Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016). Rule 403 provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” We find no merit to this assignment of error. Britt identifies 13 of the admitted photographs and argues their probative value was outweighed by their prejudicial nature. He focuses on their gruesome nature and also contends that many of the photographs are duplicative. [4] We have often observed that gruesome crimes produce gruesome photographs. State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). However, if the State lays proper foundation, photographs that illustrate or make clear a controverted issue in a homicide case are admissible, even if gruesome. Id.; State v. Dubray, supra. With respect to homicide cases, other authorities have noted, and we agree, that murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant; and . . . many attorneys tend to underestimate the stability of the jury. A juror is not some kind of a dithering nincompoop, brought in from never-never land and exposed to the harsh realities of life for the first time in the jury box. There is nothing magic about being a member of the bench or bar which makes these individuals capable of dispassionately evaluating gruesome testimony which, it is often contended, will throw jurors into a paroxysm of hysteria. Jurors are our peers, often as well educated, as well balanced, as stable, as experienced in the realities of life as the holders of law degrees. The average juror is well able to stomach the unpleasantness of exposure to the facts of a murder without being unduly influenced. - 373 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 People v. Long, 38 Cal. App. 3d 680, 689, 113 Cal. Rptr. 530, 536-37 (1974), disapproved on other grounds, People v. Ray, 14 Cal. 3d 20, 533 P.2d 1017 (1975). [5] The State is allowed to present a coherent picture of the facts of the crimes charged, and it may generally choose its evidence in so doing. State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014). In a homicide prosecution, a court may admit into evidence photographs of a victim for identification, to show the condition of the body or the nature and extent of wounds and injuries to it, and to establish malice or intent. Id. With respect to the crime scene and autopsy photographs challenged on appeal, the State has proffered a variety of purposes for their probative value. We agree with the State that the photographs show the positions of the bodies and wounds from several positions and were for the purpose of suggesting multiple shooters were present, corroborating testimony from Francisco Avalos that he heard footsteps of more than one shooter and countering Britt’s suggestion that he was not involved in the shootings. The photographs also show the victims’ wounds and spent shell casings. The State was able to use these photographs to connect the crimes to a .22-caliber revolver owned by Britt and featured in the alleged coverup of the crimes. The autopsy photographs document the manner and cause of the victims’ deaths. [6] Although several photographs depict similar scenes from different angles as compared to other photographs in evidence, the general rule is that when a court admits photographs for a proper purpose, additional photographs of the same type are not unfairly prejudicial. State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016). Rule 403 does not require the State to have a separate purpose for every photograph, and it requires a court to prohibit cumulative evidence only if it “substantially” outweighs the probative value of the evidence. State v. Dubray, supra. We determine that the district court admitted the photographs for a proper purpose and did not abuse its discretion - 374 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 when it concluded that the photographs of the crime scene and autopsy were not unfairly prejudicial. Right to Confront Davis. [7] Britt, acting pro se, also claims that the district “court violated the confrontation clause when it did not call . . . Davis to the stand.” Pro se supplemental brief for appellant at 12. The right of an accused to confront the witnesses against him or her is guaranteed by the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution. Britt contends, restated, that his right of confrontation was violated because Davis, the alleged coconspirator, was not called to testify about who he was with during the timeframe during which the murders were committed. Britt contends that this testimony was necessary to protect his rights because the State’s evidence was limited to individuals who did not claim to have directly witnessed the murders. Britt did not present a confrontation claim to the district court. We note that regardless of whether this claim was preserved, Britt has directed us to no authority to the effect that the district court had an independent obligation to call a witness or require the State to call a witness. Davis did not testify at trial, and Britt had the opportunity to cross-examine the several witnesses against him at trial. We have not been directed to, and we are unaware of, a separate proposition of law that would apply in this case to support Britt’s contention that the trial court should have independently required Davis to testify. And to the contrary, we have previously concluded that hearsay testimony from Davis was not admissible. State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016). As noted above, a major component of Britt’s argument on appeal is that the evidence against him was merely circumstantial and that this presented a confrontation issue without Davis’ testimony. To the extent that Britt contends the evidence was insufficient to support his convictions or, in the absence of Davis’ testimony, his Sixth Amendment rights were violated, we disagree. Testimony collectively showed that at least two - 375 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 people were inside Avalos’ home at the time of the murders; Britt was the only person with Davis immediately before and after the murders; Britt possessed a .22-caliber revolver, which was consistent with one of the two types of firearms used to commit the murders; and Britt was seen performing acts of concealment, including burning a pair of gloves he was wearing after the murders. The evidence presented by the State from other witnesses’ personal observations, without direct testimony from Davis, was that Britt was Davis’ accomplice. This assignment of error is without merit.",analysis
+120,900831,1,2,"[¶ 4.] Statutory interpretation presents a question of law. Satellite Cable Serv. v. Northern Elec. Coop., Inc., 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480. The construction of [a] statute and its application to [the] facts present questions of law, which we review de novo. State v. Springer-Ertl, 1997 SD 128, ¶ 4, 570 N.W.2d 39, 40. A trial court's findings of fact are to be reviewed under the clearly erroneous standard. State v. Karlen, 1999 SD 12, ¶ 6, 589 N.W.2d 594, 597; State v. Westerfield, 1997 SD 100, ¶ 8, 567 N.W.2d 863, 866. Because this case depends on our interpretation of SDCL 15-6-24(a), we will review this matter de novo.",standard of review
+121,2632687,1,2,"The sole issue on this appeal is whether Osweiler's convictions for both trafficking in methamphetamine by manufacturing it and manufacturing it on premises where a child was present violate the Double Jeopardy Clause of the United States Constitution. The Double Jeopardy Clause of the United States Constitution protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Osweiler contends that her two convictions violate the prohibition upon multiple punishments for the same offense. She relies upon the opinion of the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Based upon one sale of a controlled substance, Blockburger was convicted of two violations of federal law (selling a drug not in or from the original stamped package and selling a drug not pursuant to a written order of the purchaser). He appealed, contending that both of those charges constituted only one offense, for which he could only be punished once. When addressing the issue, the Supreme Court stated, The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. The Court then held that since both offenses required proof of an additional fact that the other did not, two offenses were committed. Osweiler argues that under the test announced in Blockburger, both of the crimes of which she was convicted constitute one offense. She was convicted of violating Idaho Code § 37-2732B(a)(3), which provides, Any person who knowingly manufactures ... methamphetamine and/or amphetamine is guilty of a felony which shall be known as `trafficking in methamphetamine and/or amphetamine by manufacturing.' She was also convicted of violating Idaho Code § 37-2737A, which makes it illegal to manufacture ... a controlled substance as defined in schedules I, II, III and IV in this chapter, upon the same premises where a child under the age of eighteen (18) years is present. Methamphetamine is a schedule II controlled substance. Idaho Code § 37-2707(d)(2). Under the Blockburger test, the two crimes of which Osweiler was convicted would constitute one offense because a conviction for manufacturing methamphetamine does not require proof of an additional fact not required for a conviction of manufacturing methamphetamine upon the same premises where a child is present. The Blockburger test is not determinative, however, in this circumstance where both convictions occurred in one prosecution. As the United States Supreme Court explained in Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535, 542 (1983), With respect to cumulative sentences in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. [S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. 459 U.S. at 368, 103 S.Ct. at 679, 74 L.Ed.2d at 543. Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the `same' conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial. 459 U.S. at 368-69, 103 S.Ct. at 679, 74 L.Ed.2d at 544. Likewise, in Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540-2541, 81 L.Ed.2d 425, 433 (1984), the United States Supreme Court explained: In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy — protection against cumulative punishments — is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are multiple is essentially one of legislative intent. Even if the crimes are the same under Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments, a court's inquiry is at an end. Id. at 500 n. 8, 104 S.Ct. at 2541 n. 8, 81 L.Ed.2d at 433 n. 8. Thus, the question is whether the Idaho legislature authorized cumulative punishment for the two crimes of which Osweiler was convicted. It clearly has. Idaho Code § 37-2737A makes it illegal to manufacture a controlled substance, such as methamphetamine, upon the same premises where a child is present. Subsection (3) of that statute provides, Any fine imposed under the provisions of this section shall be in addition to the fine imposed for any other offense, and any term of imprisonment shall be consecutive to any term imposed for any other offense, regardless of whether the violation of the provisions of this section and any of the other offenses have arisen from the same act or transaction. The punishment imposed for violating Idaho Code § 37-2737A is intended by the legislature to be in addition to the punishment for any other crime that arises from the same act or transaction. Osweiler contends that Missouri v. Hunter is distinguishable because it dealt with cumulative punishments for what would be one offense under the Blockburger test, not multiple convictions. She states that she is challenging being convicted of two crimes that constitute one offense under the Blockburger test, not being punished for two such crimes. In Missouri v. Hunter , the defendant was convicted of armed criminal action, for committing a felony while using a dangerous or deadly weapon, and of first-degree robbery. The robbery charge was the felony upon which the conviction for armed criminal action was based. The United States Supreme Court upheld his multiple punishments. A defendant cannot be punished for a crime unless he or she is first convicted of it. If the Double Jeopardy Clause of the Federal Constitution permits multiple punishments under the test set forth in Missouri v. Hunter , then it likewise permits the multiple convictions upon which those punishments are based. See Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740, 746 (1985) (For purposes of applying the Blockburger test in this setting as a means of ascertaining congressional intent, `punishment' must be the equivalent of a criminal conviction and not simply the imposition of sentence). Although Osweiler asserted that her two convictions also violated the double jeopardy provision in Article I, § 13, of the Idaho Constitution, she did not present any argument that such provision grants greater protection than does the Double Jeopardy Clause of the United States Constitution. We will therefore not consider that issue on appeal. State v. Sharpe, 129 Idaho 693, 931 P.2d 1211 (1997).",analysis
+122,1773230,2,1,"Appellant's first issue on appeal raises a jurisdictional challenge. Specifically, Vowell claims that the Club had an adequate remedy at law, which precludes equity jurisdiction. In response, appellee suggests that Vowell waived any objection to subject-matter jurisdiction because he admitted that jurisdiction was appropriate in his answer to its complaint. This threshold argument is meritless. Subject-matter jurisdiction is a defense that cannot be waived by the parties at any time nor can it be conferred by the parties' consent. See Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377 (1998). Although we discard appellee's waiver argument, we agree that equity jurisdiction was appropriate in this case. The Club sought relief for damages arising from Vowell's unilateral transfer of forty-nine deeds that were neither properly delivered to nor accepted by the Club. As a result, appellee sought both reformation of the instruments and associated money damages caused by the unilateral conveyances that prevented the Club from collecting expected monthly dues payments. Accordingly, appellee sought equitable relief based upon a tort theory of tortious interference with business expectancy. Moreover, although money damages were admittedly sought, the core of appellee's complaint centered upon the predicament caused by its forced acceptance of the forty-nine deeds and consequent inability to collect expected dues on those properties as well as 221 other lots transferred to an offshore corporation. We acknowledge that the Club mischaracterized the nature of equitable relief sought as reformation, rather than cancellation. Reformation requires either mutual mistake or unilateral mistake accompanied by fraud. See Roberson Enters., Inc. v. Miller Land & Lumber Co., 287 Ark. 422, 700 S.W.2d 57 (1985). Despite the imprecision, the nature of appellee's claim and the subsequent relief granted were equitable. The trial court's purported reformation was tantamount to cancellation of the deed transfers. [1] Further, this relief was accompanied by an injunction prohibiting further interference with the Club's business expectancies arising from its covenants and restrictions. In sum, we cannot say that the Club had an adequate remedy at law in view of appellant's unorthodox transfer of the first forty-nine deeds and subsequent transfer of 221 deeds to an offshore corporation in a thinly veiled attempt to thwart the chancery court's temporary restraining order. In any event, the clean-up doctrine afforded appellee jurisdiction in the chancery court. Pursuant to that doctrine, once equity properly acquires jurisdiction over a matter, it acquires jurisdiction for all purposes. In other words, provided a proper jurisdictional basis existed initially, an allegation of one equitable claim may bring an entire case in to the chancery court. See Towell v. Shepherd, 286 Ark. 143, 689 S.W.2d 564 (1985); see also Howard W. Brill, Arkansas Law of Damages § 2-3, at 16 (3d ed.1996). In light of the foregoing, we conclude that the chancery court had proper subject-matter jurisdiction to hear the entire case.",jurisdiction
+123,2552698,1,1,"[¶2] Sam raises this issue: Did the district court err in denying [Sam's] motion to suppress evidence, as his vehicle was improperly searched incident to arrest in violation of the Wyoming Constitution? The State identifies the issue in only slightly different words: Did the district court properly deny [Sam's] motion to suppress upon concluding officers were entitled to search under the front seat of his vehicle incident to his arrest?",issues
+124,4424135,1,1,"Through new counsel, Ryan W. Blaha appeals his criminal convictions and sentences, attacking the sentences imposed and asserting ineffective assistance of trial counsel. Regarding his sentences, we (1) again reject the premise that sentences within statutory limits are never excessive, (2) dispel the notion that sentencing factors have not been adequately considered without specific discussion, and (3) reiterate that a sentencing court may consider a defendant’s conduct underlying dismissed charges. Although the record does not allow us to reach one of his four ineffectiveness claims, we find no merit to the others, which are, respectively, refuted by the record, not prejudicial, and insufficiently alleged. We affirm. - 418 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. BLAHA Cite as 303 Neb. 415",introduction
+125,4524270,1,4,"Summary Judgment A motion for summary judgment is to be granted “if the pleadings and the evidence admitted at the hearing show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.”6 “The evidence that may be received on a motion for summary judgment includes depositions, answers to interrogatories, admissions, stipulations, and affidavits.”7 But, here, our bill of exceptions contains only Robert’s evidence. Kimberly’s evidence does not appear in the bill. [4,5] This court has stated on numerous occasions that a bill of exceptions is the only vehicle for bringing evidence before an appellate court; evidence which is not made a part of the bill of exceptions may not be considered.8 In 1959, we explained at length: “An affidavit used as evidence in the district court cannot be considered on an appeal of a cause to this court unless it is offered in evidence in the trial court and preserved in and made a part of the bill of exceptions. . . . The fact that an affidavit used as evidence in the district court was filed in the office of the clerk of the district court and made a part of the transcript is not important to a consideration and decision of an appeal in the cause to this court. If 4 Id. 5 Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018). 6 Neb. Rev. Stat. § 25-1332(1) (Cum. Supp. 2018) (emphasis supplied). 7 Id. 8 See Gomez v. Gomez, 303 Neb. 539, 930 N.W.2d 515 (2019). - 974 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports BOHLING v. BOHLING Cite as 304 Neb. 968 such an affidavit is not preserved in a bill of exceptions, its existence or contents cannot be known by this court. . . . A judgment of the district court brought to this court for review is supported by a presumption of correctness and the burden is upon the party complaining of the action of the former to show by the record that it is erroneous. It is presumed that an issue decided by the district court was correctly decided. The appellant, to prevail in such a situation, must present a record of the cause which establishes the contrary. . . .9 This requirement is not new. In 1934, we set forth as “the settled law of this state” the principle that “error must affirm­ atively appear of record and that affidavits and other written documents used as evidence on a hearing in the district court cannot be considered by the [S]upreme [C]ourt unless they are made a part of the record by being embodied in a bill of exceptions.”10 There, we cited numerous cases, dating back to a case from 1886.11 The 1886 opinion, in turn, cited to many more cases, the earliest being from 1877.12 We have often recited the rule or variations thereof, but we have not explained its underlying rationale; at least, we have not done so recently. In 1963, we set forth one straightforward variation: “The bill of exceptions is the only vehicle for bringing evidence before the court on appeal.”13 To support that particular articulation, we cited an Alabama case.14 In that case, the Alabama Supreme Court stated that “[t]he bill of 9 Peterson v. George, 168 Neb. 571, 576-77, 96 N.W.2d 627, 631 (1959) (citations omitted). 10 Berg v. Griffiths, 127 Neb. 501, 502, 256 N.W. 44, 45 (1934). 11 See McMurtry v. State, 19 Neb. 147, 26 N.W. 915 (1886). 12 See Ray v. Mason, 6 Neb. 101 (1877). 13 Everts v. School Dist. No. 16, 175 Neb. 310, 315, 121 N.W.2d 487, 490 (1963). 14 See Sovereign Camp, W. O. W. v. Wiggins, 238 Ala. 424, 191 So. 470 (1939). - 975 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports BOHLING v. BOHLING Cite as 304 Neb. 968 exceptions, as it appears, in the record is all that the court can or will consider.”15 For that proposition, the Alabama Supreme Court relied upon Pearce v. Clements.16 In Pearce, the Alabama Supreme Court began by stating that “[b]ills of exceptions are the mere creatures of statute, being entirely unknown to the common law . . . .”17 It described its precedent of interpreting the strict procedures of a bill of exceptions and discussed the necessary production of evidence, stating: A record is something which is proved by its mere production and inspection, whether of the original or of a copy, and nothing can be construed to be a part of it, which does not appear, on the face of it, to be such, without the aid of oral evidence, explanatory of clerical errors which may have crept into such judicial proceedings, whether errors of omission or errors of commission.18 The Pearce court concluded that these principles applied with equal force to bills of exceptions, where the law has placed several exacting safeguards around the execution of a bill of exceptions. Likewise, a bill of exceptions in Nebraska is a creature of statute.19 And it is one with ancient origins.20 We have engaged in this extended discussion to explain why we adhere to the “settled law” and the statutory basis compelling our fidelity. [6,7] Kimberly’s request for judicial notice did not circumvent the necessity of presenting evidence in a bill of exceptions. Papers requested to be judicially noticed must be marked, identified, and made a part of the bill of exceptions.21 15 Id. at 427, 191 So. at 472. 16 Pearce v. Clements, 73 Ala. 256 (1882). 17 Id. at 257 (emphasis in original). 18 Id. at 258 (emphasis in original). 19 See Neb. Rev. Stat. § 25-1140 (Reissue 2016). 20 See 1877 Neb. Laws, § 2, p. 11. 21 See In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017). - 976 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports BOHLING v. BOHLING Cite as 304 Neb. 968 The will and Kimberly’s affidavits were not included in the bill of exceptions; thus, they are not properly before us. But this should not be read to suggest that offering an exhibit is a proper occasion for the exercise of judicial notice. Judicial notice of an adjudicative fact is a species of evidence.22 We do not read the colloquy between Kimberly’s counsel and the court as a true request for judicial notice of an adjudicative fact, but, rather, as an unauthorized substitute for the proper method of making an evidentiary record. Similarly, the presence of the proffered will and Kimberly’s proposed affidavits in the transcript does not bring them before us as evidence. As we recited above, the fact that an affidavit used as evidence in the district court was filed in the office of the clerk of the district court and made a part of the transcript is not important to a consideration and decision of an appeal in the cause to this court. If such an affidavit is not preserved in a bill of exceptions, its existence or contents cannot be known by this court.23 [8] So, on appeal, we confront a bill of exceptions that contains only Robert’s evidence. But the absence of Kimberly’s evidence is not attributable to any fault on Robert’s part. Kimberly failed to have her exhibits properly marked and received. And the district court acquiesced in the improper procedure. A party moving for summary judgment makes a prima facie case for summary judgment by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence were uncontroverted at trial.24 Because Kimberly was the moving party, she bore the burden to prove a prima facie case. And because Kimberly did not produce her evidence in a manner so as to be included in a bill of exceptions, she effectively failed to make a prima facie case. Accordingly, the 22 Id. 23 Peterson v. George, supra note 9. 24 Kaiser v. Union Pacific RR. Co., 303 Neb. 193, 927 N.W.2d 808 (2019). - 977 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports BOHLING v. BOHLING Cite as 304 Neb. 968 summary judgment must be reversed and the cause must be remanded for further proceedings. § 6-1526 [9] Robert argues that because Kimberly failed to file an evidence index and an annotated statement of undisputed facts, her motion for summary judgment should have been denied for failure to comply with § 6-1526. An appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where those issues are likely to recur during further proceedings.25 Although it is not necessary to the disposition of this appeal, we discuss § 6-1526 because it is likely to recur upon remand. The rule was prompted by legislative action. In 2017, the Legislature amended the summary judgment statutes to “require[] a party to provide citations to the record to support its assertion that a fact cannot be or is genuinely disputed.”26 It did so by amending § 25-1332. In response, we adopted § 6-1526 in 2018. This rule provides specific procedures to carry out the purpose of the statutory amendment. In order to accomplish the legislative goal of judicial economy, § 6-1526 was crafted for three reasons. First, it benefits parties by making the parties’ respective claims as to undisputed or disputed facts clear and precise. Second, it serves both trial and appellate courts by exposing the precise claims of the parties. The parties’ briefs are not an effective substitute for an evidence index and an annotated statement of undisputed or disputed facts. A judge should not have to scour through a party’s brief to identify factual claims that are intermixed with legal arguments. Third, it was adopted to focus the parties and the court on the specific factual contentions. 25 In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017). 26 Ecker v. E & A Consulting Group, 302 Neb. 578, 583, 924 N.W.2d 671, 676 (2019). See, also, 2017 Neb. Laws, L.B. 204. - 978 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports BOHLING v. BOHLING Cite as 304 Neb. 968 Trial courts should have some discretion to adapt procedures to the needs of a particular case, and an appellate court will not intervene except where the discretion is abused. But trial courts should not condone a party’s failure to follow § 6-1526 merely because the party finds it inconvenient or unfamiliar. There is a systemic value to the prompt and inexpensive resolution of disputes. Section 6-1526 should not be lightly ignored. We encourage district courts to set deadlines in compliance with the rule and require parties to submit necessary materials.",analysis
+126,884505,1,3,"¶ 11 Did the District Court err in concluding that the nonowned automobile exclusion in Henninger's policy applies? ¶ 12 The Livengoods first assert that the District Court erred in granting summary judgment to American Family because a genuine issue of material fact exists regarding whether Henninger and Frehse were residents of the same household for purposes of applying the nonowned automobile exception. We disagree. ¶ 13 American Family alleged in its complaint that, at the time of the accident, Henninger and Frehse were residents of the same household. The Livengoods denied that allegation in their answer. Thereafter, however, Henninger and Frehse answered the complaint and admitted that they were residents of the same household on the date of the accident. That admission was sufficient to meet American Family's burden of establishing the absence of a genuine issue of material fact regarding residency in the same household. Thus, the burden shifted to the Livengoods to come forward with substantial evidence, not mere denial or speculation, that a genuine issue of fact existed as to whether Henninger and Frehse were residents of the same household. See Bruner, 272 Mont. at 264, 900 P.2d at 903. ¶ 14 The Livengoods did not come forward with any evidence whatsoever, much less substantial evidence, to controvert Henninger and Frehse's admission that they were residents of the same household and, thereby, to raise a genuine issue of fact in that regard. Instead, the Livengoods advanced cases from other jurisdictions setting forth factors tending to indicate whether two persons are residents of the same household. They advance those cases again on appeal, arguing therefrom that questions remain as to those factors in the present case. The problem with the Livengoods' argument, however, is that none of the cases on which they rely involve an admission by the persons involved that they were, in fact, residents of the same household. As a result, the questions the Livengoods raise about the duration and nature of Henninger and Frehse's relationship, their intentions regarding the future and the like, are merely speculative and are insufficient to meet their burden of raising a genuine issue of material fact regarding whether Henninger and Frehse were residents of the same household at the time of the accident. We conclude, therefore, that the District Court did not err in determining that no genuine issue of material fact exists regarding Henninger and Frehse being residents of the same household at the time of the accident. ¶ 15 The Livengoods also contend that the District Court erred in interpreting the nonowned automobile exclusion to require only that the vehicle driven by Henninger at the time of the accident be owned by Frehse, a resident of her household, and in determining, on that basis, that the exclusion applies. They posit that, in order for the exclusion to apply, Frehse also must have either furnished his vehicle—or made it available—for Henninger's regular use. Again, we disagree. ¶ 16 As set forth above, the policy language at issue excludes coverage for injury arising out of the insured's use of a vehicle owned by or furnished or available for regular use by you or any resident of your household. In its common usage, or connotes the disjunctive, and it is used to express an alternative or give a choice of one among two or more things. See Black's Law Dictionary 1095 (6th ed.1990). When a provision is written in the disjunctive, it is clear that only one of the separately stated factors must exist. See Baldridge v. Board of Trustees (1997), 287 Mont. 53, 62, 951 P.2d 1343, 1349. Indeed, in Stutzman, we implicitly interpreted a similarly worded exclusion of a vehicle owned by or furnished for the regular use of the named insured or any relative disjunctively, requiring the insurer to establish only that the vehicle was owned by a relative of the named insured. Stutzman, 284 Mont. at 378, 945 P.2d at 35. ¶ 17 Here, the disjunctive or separates each alternative in the nonowned automobile exclusion at issue. As a result, coverage clearly is excluded for injuries arising from Henninger's use of a vehicle—other than her insured car—which is either owned by or furnished or available for regular use by either Henninger or any resident of her household. American Family established that Henninger was using a vehicle owned by Frehse, a resident of her household, at the time of the accident. It was not required to show that the separately stated alternative regarding a vehicle furnished or made available for her regular use by a resident of her household also was satisfied. ¶ 18 We hold that the District Court did not err in interpreting the policy language or in concluding that the nonowned automobile exclusion in Henninger's policy applies.",issues
+127,1255994,1,2,"This Court must now determine whether the information contained in the affidavit prepared by Detective Hobby presented sufficient information to enable a magistrate to make a threshold determination of probable cause. In so doing, we note that the parties do not challenge the superior court's findings of fact. Therefore, the scope of our inquiry is limited to the superior court's conclusions of law, which are fully reviewable on appeal. State v. Smith, 346 N.C. 794, 797, 488 S.E.2d 210, 212 (1997). As this Court acknowledged in State v. Beam, when addressing whether a search warrant is supported by probable cause, a reviewing court must consider the totality of the circumstances. 325 N.C. 217, 220-21, 381 S.E.2d 327, 329 (1989); see also Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527, 548 (1983); State v. Riggs, 328 N.C. 213, 219-20, 222, 400 S.E.2d 429, 433-34 (1991); State v. Arrington, 311 N.C. 633, 641, 319 S.E.2d 254, 259 (1984). In applying the totality of the circumstances test, this Court has stated that an affidavit is sufficient if it establishes reasonable cause to believe that the proposed search ... probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender. Probable cause does not mean actual and positive cause nor import absolute certainty. Arrington, 311 N.C. at 636, 319 S.E.2d at 256 (citations omitted). Thus, under the totality of the circumstances test, a reviewing court must determine whether the evidence as a whole provides a substantial basis for concluding that probable cause exists. Beam, 325 N.C. at 221, 381 S.E.2d at 329; see also Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548 (concluding that the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis' to conclude that probable cause existed) (citation omitted). In adhering to this standard of review, we are cognizant that great deference should be paid a magistrate's determination of probable cause and that after-the-fact scrutiny should not take the form of a de novo review. Arrington, 311 N.C. at 638, 319 S.E.2d at 258. We are also mindful that: A grudging or negative attitude by reviewing courts toward warrants is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner. [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Riggs, 328 N.C. at 222, 400 S.E.2d at 434-35 (alterations in original) (citations omitted). Most importantly, we note that a magistrate is entitled to draw reasonable inferences from the material supplied to him by an applicant for a warrant. Id. at 221, 400 S.E.2d at 434. To that end, it is well settled that whether probable cause has been established is based on `factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act.' Id. at 219, 400 S.E.2d at 433 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949)) (alteration in original), quoted in Gates, 462 U.S. at 231, 103 S.Ct. at 2328, 76 L.Ed.2d at 544.  Probable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required. State v. Zuniga, 312 N.C. 251, 262, 322 S.E.2d 140, 146 (1984) (emphasis added). Here, the magistrate was entitled to rely on his personal experience and knowledge related to residential refuse collection to make a practical, threshold determination of probable cause. Based on the facts before him, the magistrate was entitled to infer that the garbage bag in question came from defendant's residence and that items found inside that bag were probably also associated with that residence. This conclusion is particularly bolstered by the location of the garbage bag and the fact that Detective Hobby retrieved it from defendant's yard at approximately 8:00 a.m. on the regularly scheduled garbage collection day in defendant's neighborhood. The marijuana plants gathered from the garbage bag, taken in conjunction with defendant's drug-related criminal history and the information obtained by the Raleigh Police Department linking defendant to a heroin sale and overdose established, based on the factual and practical considerations of everyday life, that there was a fair probability that contraband and evidence of a crime would be found in defendant's residence. Thus, the information contained in Detective Hobby's affidavit constituted a substantial basis for the magistrate to find probable cause sufficient to issue a search warrant for defendant's residence. For the reasons stated above, the superior court's conclusion is inconsistent with the jurisprudence of this State, which establishes that a magistrate's [r]easonable inferences from the available observations, particularly when coupled with common or specialized experience, long have been approved in establishing probable cause. Riggs, 328 N.C. at 221, 400 S.E.2d at 434. As a result, the search warrant was properly issued and the superior court erred in granting defendant's motion to suppress the evidence of the 1 October 2002 search of his residence. Accordingly, the decision of the Court of Appeals is reversed. This case is remanded to the Court of Appeals for further remand to the Wake County Superior Court for further proceedings consistent with this opinion. REVERSED AND REMANDED.",analysis
+128,2378166,1,1,"¶ 1 Lonnie Eskelson sued Dr. Jonathan Apfelbaum on behalf of his four-year-old son Jacob, alleging that Dr. Apfelbaum perforated Jacob's eardrum during an attempt to extract a bead lodged in Jacob's ear. Mr. Eskelson appeals the district court's decision excluding his expert testimony and granting summary judgment in favor of Dr. Apfelbaum.",introduction
+129,1847474,1,6,"The Court of Appeals affirmed the review panel's conclusion that the trial judge was divested of jurisdiction to hear Russell's second enforcement order because Kerry had perfected its appeal of the trial judge's first enforcement order. It relied on cases in which we have held that a district court is divested of jurisdiction when a party perfects an appeal from the court's final judgment. We do not believe those cases apply. We have held that after a party perfects an appeal to an appellate court, the lower courts are divested of subject matter jurisdiction over that case. [5] But this rule is applied when a party appeals the trial court's final judgment. Here, Kerry was not appealing from the award. It was appealing from a separate postjudgment proceeding to enforce the award. Neither party appealed from the trial judge's determination that Russell was entitled to benefits for temporary total disability and temporary partial disability. The award was therefore final 30 days after the trial judge entered it. [6] Neb.Rev.Stat. § 48-125 (Cum. Supp. 2008) clearly authorizes the compensation court to enforce an award by assessing a waiting-time penalty, attorney fees, and interest for all delinquent payments made 30 days after the award becomes final. The issues raised by Russell's first enforcement motion and Kerry's appeal involved only (1) the trial judge's determination that Kerry had not timely paid benefits by August 11, 2006, and (2) the judge's assessment of interest. That appeal obviously divested the trial judge of jurisdiction to reconsider the issues decided in that proceeding. But an employer's appeal from a postjudgment proceeding to enforce a workers' compensation award does not disturb the finality of an award imposing a continuing obligation on the employer to pay benefits. And Kerry's appeal of the first violation was entirely independent of its second violation of the award. We believe these enforcement proceedings are akin to postjudgment contempt proceedings in other types of civil cases. And courts generally hold that an appeal of a contempt order does not divest a trial court of jurisdiction to consider a separate act of contempt. [7] To conclude otherwise would give the offending party carte blanche to decide whether to comply with the court's order pending its appeal. We conclude that the trial judge had continuing jurisdiction to enforce Kerry's obligation to pay benefits pending its appeal of the judge's previous order imposing a penalty and costs for a delayed payment. [8]",jurisdiction
+130,2533766,1,3,"A district court's findings of fact in a court-tried case will be liberally construed on appeal in favor of the judgment entered, in view of the district court's role as trier of fact. Western Heritage Ins. Co. v. Green, 137 Idaho 832, 835, 54 P.3d 948, 951 (2002) (citing Conley v. Whittlesey, 133 Idaho 265, 269, 985 P.2d 1127 (1999); Lindgren v. Martin, 130 Idaho 854, 857, 949 P.2d 1061, 1064 (1997)). Review of the decision is limited to ascertaining whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law. Id. If the findings of fact are based on substantial evidence, even if the evidence is conflicting, they will not be overturned on appeal. Id. However, this Court exercises free review over questions of law. Id.",standard of review
+131,2542673,2,1,"This court has repeatedly announced that, when passing on the legal sufficiency of evidence to support a conviction, evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or a jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact. State v. Viglielmo, 105 Hawai`i 197, 202-03, 95 P.3d 952, 957-58 (2004) (citations omitted) (format altered). Substantial evidence is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion. State v. Pone, 78 Hawai`i 262, 265, 892 P.2d 455, 458 (1995) (brackets, internal quotation marks, and citations omitted). Hicks maintains that the trial court erred in denying his oral motion for judgment of acquittal and his motion for new trial because the prosecution presented insufficient evidence that the HYCF is a state correctional facility and that Complainant was an imprisoned person. Hicks specifically argues that no representative of the facility administration or Department of Human Services testified to the character of the HYCF or legal status of the minor wards. Thus, Hicks asserts that [c]haracterization of the facility as a prison by lay employees and the wards does not suffice to establish that [Complainant] was imprisoned. As quoted supra, HRS § 707-732(1)(e) provides that a person commits the offense of sexual assault in the third degree if: (e) The person, while employed: (i) In a state correctional facility [] . . . . . . . knowingly subjects to sexual contact an imprisoned person, a person confined to a detention facility, a person committed to the director of public safety, a person residing in a private correctional facility operating in the State of Hawai`i, or a person in custody, or causes the person to have sexual contact with the actor[.] (Emphases added.)
+Hicks appears to argue that the HYCF does not fall within the phrase state correctional facility because a youth correctional facility — like the HYCF — is separate and different from the prison system. Hicks asserts that, [i]n a juvenile facility[,] the focus is on rehabilitation. He also asserts that [t]he Department of Public Safety controls jails and prisons while the Department of Human Services is responsible for juveniles. Accordingly, Hicks submits that adult prisoners and juvenile wards are not the same for purposes of sexual assault. In other words, Hicks implicitly contends that only an adult state correctional facility under the supervision of the Director of Public Safety can be a state correctional facility. The phrase state correctional facility is not defined anywhere in the Hawai`i Penal Code, i.e., HRS chapter 701 to chapter 712A, including the pertinent definition section of HRS chapter 707, which contains the sexual assault statutes. Hicks, thus, urges this court to limit the meaning of the subject phrase essentially to only adult correctional facilities — and not juvenile facilities. Such restriction, however, is inappropriate in light of the general principles of statutory construction that courts [are to] give words their ordinary meaning unless something in the statute requires a different interpretation. Saranillio v. Silva, 78 Hawai`i 1, 10, 889 P.2d 685, 694 (1995) (citation omitted); see also HRS § 1-14 (1993) (The words of a law are generally to be understood in their most known and usual signification, without attending so much to the literal and strictly grammatical construction of the words as to their general or popular use or meaning.) By its plain and obvious meaning, the phrase correctional facility undoubtedly encompasses youth correctional facilities. Absent from the Hawai`i Penal Code, including HRS § 707-732, is any language limiting the scope of the correctional facility to adult correctional facilities. In fact, in 2002 and 2004, the legislature expanded HRS § 707-732(1)(e) to include persons employed not only in state correctional facilities, but also to those employed (ii) By a private company providing services at a correctional facility; (iii) By a private company providing community-based residential services to persons committed to the director of public safety and having received notice of this statute; (iv) By a private correctional facility operating in the State of Hawai`i; or (v) As a law enforcement officer as defined in section 710-1000(13)[.] HRS § 707-732(1)(e) (emphases added); see 2002 Haw. Sess. L. Act 36, § 2 at 107; 2004 Haw. Sess. L. Act 61, § 5 at 304. Specifically, the legislature stated that the purpose for the expansion of the statute was to ensur[e] that sexual offenses committed by any correctional facility employee against inmates are prohibited, regardless of the employer, Sen. Stand. Comm. Rep. No. 2913, in 2002 Senate Journal, at 1403 (emphasis added), and to provide[ ] needed protection to persons under the custody of the state,  Hse. Stand. Comm. Rep. No. 88, in 2002 House Journal, at 1268 (emphasis added). See also Sen. Stand. Comm. Rep. No. 3162, in 2002 Senate Journal, at 1509. Stated differently, the legislature's focus was on ensuring that the legislation covered employees of all correctional institutions intended to be included, and not on defining strictly exclusive categories. Thus, the type of agency overseeing the youth correctional facility is not determinative as to whether the facility is a correctional facility. It follows then that Hicks's argument that the HYCF is not governed by the Department of Public Safety does not exclude the HYCF from the phrase correctional facility. Accordingly, by its ordinary meaning, we believe that the phrase correctional facility must be construed to include a youth correctional facility, such as the HYCF. However, the issue remains whether a youth correctional facility — specifically, the HYCF — is a state correctional facility. HRS chapter 352, entitled Youth Correctional Facilities, does not expressly provide that a youth correctional facility is a state correctional facility. Nonetheless, the legislature, in enunciating the purpose of the youth correctional facilities, clearly indicated that: (a) This chapter creates within the department of human services, and to be placed within the office of youth services under the supervision of the director [, i.e., the executive director of the office of youth services,] and such other subordinates as the director shall designate, the Hawai`i youth correctional facilities, in order to provide for the incarceration, punishment, and institutional care and services to reintegrate into their communities and families, children committed by the courts of the State. HRS § 352-2.1(a) (1993) (emphases added). HRS § 352-8 (1993 & Supp.2005) further provides in relevant part that the director shall be the guardian of every youth committed to or received at the Hawai`i youth correctional facilities. Accordingly, inasmuch as HRS chapter 352 clearly mandates that youth correctional facilities be placed under the supervision of a Hawai`i agency, i.e., the Department of Human Services, we hold, as a matter of law, that the HYCF is a state correctional facility. [4] The dispositive issue, however, is whether there was credible evidence of sufficient quality and probative value to enable a juror of reasonable caution to support a conclusion that Hicks was employed by the HYCF, which, as we have previously concluded, is a state correctional facility. Hicks did not dispute that he was a YCO employed by the HYCF. Indeed, Hicks testified that he worked (1) as a YCO at the HYCF since 1980 and (2) in Module B on January 21, 2004 from 6:00 a.m. to 2:00 p.m. Thus, taking the evidence in the light most favorable to the prosecution, there was sufficient evidence to enable the jury to conclude that Hicks was employed in a state correctional facility.
+Next, Hicks maintains that there was insufficient evidence to establish that a minor — in this case, Complainant — committed to the HYCF, is an imprisoned person because, in juvenile proceedings and juvenile facilities, the focus is on rehabilitation. Hicks again states that [p]risons and [y]outh [c]orrectional [f]acilities are operated by separate department[s] of the [e]xecutive branch of government. He argues that a juvenile ward of the court is not a prisoner: Wards in the HYCF are a separate class of individuals, as evidenced by the insistence of the Department of Human Services on referral to them as such, rather than as inmates or prisoners. In response, the prosecution asserts that the plain reading of the phrase an imprisoned person as used in HRS § 707-732(1)(e) encompasses juveniles confined to a youth correctional facility because: It would be absurd to believe that the legislature intended to punish guards for sexual [contact] with adults in an adult correctional facility, but not to punish guards for sexual [contact] with juveniles confined in a youth correctional facility like [the] HYCF, simply because they fall under the supervision of a different State department. This absurd result would be inconsistent with the overall statutory scheme for sexual offenses, which evidences a strong legislative intent to provide more, not less, protection for minors against sexual offenders. Further, the prosecution contends that, [v]iewing all of the evidence in the strongest light for the prosecution and in full recognition of the province of the trier of fact, there was sufficient evidence from which a reasonable mind might fairly conclude that Complainant was an imprisoned person. Like the phrase state correctional facility, the word imprisoned is not defined anywhere in the Hawai`i Penal Code. Thus, the undefined word must be read to bear its common, ordinary or usual meaning. Saranillio, 78 Hawai`i at 10, 889 P.2d at 694; see also HRS § 1-14. The Webster Third New International Dictionary (1993) defines imprison as to put in prison: confine in a jail. Id. at 1137 (emphasis added). Consequently, the issue before this court is whether there was substantial evidence to support the conclusion that Complainant was confined to the HYCF. In the present case, the testimony of Marciel and Haina clearly support the conclusion that Complainant was confined to the HYCF. For example, Marciel testified that her YCO job duties involved security[,] custody and control of wards and further explained that the wards are troubled youths that have been sentenced to prison. . . . They're in jail, and I'm a correctional officer for the youth. Thus, the circuit court did not err in concluding that there was sufficient evidence for the jury to conclude that Complainant was confined and, therefore, an imprisoned person. [5] Accordingly, the circuit court properly denied Hicks' oral motion for judgment of acquittal and motion for new trial.",sufficiency of the evidence
+132,1854882,1,1,"On September 9, 1976, Florence E. Rapp created the Florence E. Rapp Trust (Trust), with Florence, Harry, and John W. Rapp as trustees. After the death of Florence, the expenses of settling her affairs and the death taxes associated with her estate were to be paid out of the Trust. The residue was then to be divided into five equal shares, one for each of Florence's children: Dale, John, Roland R. Rapp, Gloria F. Reiner, and Harry. Florence died June 12, 1989. After Florence's death and prior to the commencement of this action, each of the five beneficiaries of the Trust received the following distribution checks from the Trust: $30,000 on June 16, 1989; $75,000 on November 1; and $6,000 on December 22. Dale alleged that the trustees sent him a $6,000 check which required that if he endorsed the check, the accounting from the Trust would be approved. Dale refused to negotiate and cash his $6,000 check and commenced this action. John died during the pendency of this action. His estate and the three other Trust beneficiaries approved all of the subsequent actions, investments, accounts, and activities of the Trust, and Roland and Gloria were never made parties to the action. Dale sought to set aside an assignment by the three trustees, Florence, Harry, and John, to Florence and Harry as joint tenants with rights of survivorship of a promissory note from Harry, as trustee; to set aside the sale by Florence to Harry of the interests of Florence in two automobiles which had been owned by Harry and Florence as joint tenants with rights of survivorship; an accounting of income, farm program payments, and other income after June 12, 1989, and to surcharge Harry and John, as trustees, for insufficient rents of non-Trust farmland and pastureland; distribution of $6,000 of Trust cash assets which Harry and John, as trustees, had previously tried to distribute to Dale and distribution of one-fifth of the residue of the Trust assets; and a formal accounting of Trust actions, investments, accounts, and activities. On January 14, 1993, Harry and John, as trustees, filed a motion for summary judgment on all causes of action. On March 26, the court granted their motion for summary judgment on Dale's third cause of action and overruled the motion as to all other causes of action. The remaining causes of action were tried on February 23, 1994, and on June 9, the court entered an order denying Dale's first and second causes of action, sustaining Dale's motion for directed verdict with regard to his entitlement to a distribution of $6,000 and one-fifth of the residue of the Trust assets, granting Harry and John's motion as trustees for directed verdict with regard to the accounting because such accounting had previously been provided by them, and assessing costs against Dale. Harry and John, as trustees, in defending this action incurred attorney fees and other expenses in an amount of $10,497.45. On August 9, 1994, Dale filed a motion to have Harry, as trustee, held in contempt for withholding the $10,497.45 in attorney fees and litigation expenses from the $6,000 and the one-fifth Trust residue distributable amount of beneficiary Dale. On December 27, the district court entered a journal entry and order in which the court acknowledged John's death and found Harry in contempt for withholding all of the attorney fees and litigation expenses from Dale's distribution. The court further held that Harry could purge himself of said contempt by paying to the clerk of the district court the $6,000 plus one-fifth of any funds distributed to the other beneficiaries (amounting to $3,964.89) and by providing the court with a written accounting regarding the payment of such amounts. The court further ordered Harry to pay the sum of $750 to Dale as attorney fees for Dale's expense in bringing the contempt action. Harry purged himself of contempt by paying the necessary sums to the clerk of the district court. Harry then filed a motion for approval, allowance, and apportionment of attorney fees and other litigation expenses. On April 21, 1995, the district court overruled the motion. The court specifically found that Harry should not receive reimbursement fees from Dale's money because (1) Harry, as trustee, attempted to unilaterally circumvent a court order by withholding amounts for attorney fees and expenses of litigation from amounts otherwise distributable to Dale; (2) Harry should have applied to the court to obtain reimbursement for attorney fees and expenses of litigation instead of withholding such amounts otherwise distributable to Dale; and (3) such withholding actions of Harry were previously held by the court to be in bad faith, and to permit Harry to obtain reimbursement from amounts otherwise distributable to Dale would be to condone the prior behavior of Harry, as trustee. Harry then filed a motion for new trial on May 1, 1995. This motion was overruled, but the court clarified its April 21, 1995, journal entry by approving the attorney fees and other litigation expenses as necessary, fair, and reasonable. The court reiterated that none of the attorney fees and litigation expenses approved by the court would be apportioned against Dale.",facts
+133,1742560,1,4,"Kahler raises two issues. First, he contends the district court erred in granting the motion for summary judgment because it was not supported as required by Iowa Rule of Civil Procedure 1.981. Second, he contends the district court should have denied the motion for summary judgment because the admitted allegations of the petition show that Harold, as grantee, added Kahler as a joint tenant before the deed was recorded.",issues
+134,2821569,1,3,"¶31 Under the undisputed facts of this cause, Crownover was not provided with constitutionally adequate notice prior to the sale of his property for delinquent taxes. Jones , 547 U.S. at 225. See Ziegler , 1989 OK 113, ¶6; Luster , 1986 OK 74, ¶18. Accordingly, the tax sale and resultant resale tax deed are void. Garcia , 2008 OK 90, ¶15; Ziegler , 1989 OK 113, ¶6; Luster , 1986 OK 74, ¶¶18-19. Summary judgment in favor of the County was improper. The opinion of the Court of Civil Appeals is vacated, the trial court's order granting summary judgment in favor of the County is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED AND CAUSE REMANDED. REIF, C.J., COMBS, V.C.J., KAUGER, WATT, EDMONDSON, COLBERT, and GURICH, JJ., concur. WINCHESTER (by separate writing) and TAYLOR, JJ., dissent.",conclusion
+135,4534535,1,4,"[3-5] The Fourth Amendment prohibits unreasonable searches and seizures, and it is well-established that the taking of a blood, breath, or urine sample is a search. 12 Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. 13 The warrantless search exceptions Nebraska has recognized include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest. 14 Both the county court and the district court devoted considerable analysis to whether the search incident to arrest exception can apply to a urine test after the U.S. Supreme Court’s decision in Birchfield. 15 This case does not require us to answer that question. As explained below, we conclude that Degarmo voluntarily consented to the search of his urine and that his motion to suppress was properly overruled. As such, we do not address the applicability of any other recognized exception to the warrant requirement. 9 Id. 10 Id. 11 Id. 12 See, Birchfield, supra note 1; Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989); Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). 13 State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019). 14 Id. 15 See Birchfield, supra note 1. - 689 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. DEGARMO Cite as 305 Neb. 680 1. Legal Standard and Historical Facts As a threshold matter, we emphasize that our analysis in this case is focused exclusively on whether Degarmo voluntarily gave consent for the search of his urine. 16 We thus do not address whether, in the wake of the U.S. Supreme Court’s holding in Birchfield, Degarmo can also be deemed to have impliedly consented to the urine test pursuant to Nebraska’s implied consent laws. 17 [6-9] Generally, to be effective under the Fourth Amendment, consent to a search must be a free and unconstrained choice, and not the product of a will overborne. 18 Consent must be given voluntarily and not as a result of duress or coercion, whether express, implied, physical, or psychological. 19 The determination of whether the facts and circumstances constitute a voluntary consent to a search, satisfying the Fourth Amendment, is a question of law. 20 Whether consent to a search was voluntary is to be determined from the totality of the circumstances surrounding the giving of consent. 21 Here, the county court made several findings of historical fact related to its determination that Degarmo voluntarily consented to the urine test. It found that Degarmo was in custody at the time, having been arrested on suspicion of driving under the influence of drugs and transported to a detoxification center for purposes of a DRE. It found that as part of the DRE, Schwarz read Degarmo part A of the postarrest chemical test 16 See State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017) (concluding Birchfield did not categorically invalidate warrantless blood draw based on actual consent when driver was incorrectly advised he was required to consent or face criminal penalties and finding totality of circumstances test proper). 17 See Neb. Rev. Stat. § 60-6,197(1) and (3) (Cum. Supp. 2018). 18 Schriner, supra note 8. 19 Id. 20 Id. 21 Id. See, also, Hoerle, supra note 16. - 690 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. DEGARMO Cite as 305 Neb. 680 advisement form and directed a test of his breath, and that Degarmo signed part A of that form at 11:08 a.m. It found that about an hour later, Schwarz read Degarmo the consent to search form asking for permission to search his urine, and that Degarmo signed that form at 12:04 p.m. It noted Degarmo’s testimony that he signed the forms because he understood that he was going to be “guilty no matter what.” It also noted Degarmo’s testimony that he felt “belittled” during the entire course of the DRE. Degarmo does not challenge any of these findings of historical fact, and we agree they are supported by the record and not clearly erroneous. After considering the totality of the circumstances, both the county court and the district court concluded that Degarmo voluntarily consented to the search of his urine. Because this determination presents a question of law, we consider it independently. 22 2. Totality of Circumstances As stated, whether consent to a warrantless search was voluntary is to be determined from the totality of the circumstances surrounding the giving of consent. On appeal, Degarmo advances two reasons why his written consent to the urine test was not voluntary. First, he argues his consent was “coerced out of him by a claim of lawful authority.” 23 Next, he argues his consent was not voluntary because he was “in a police-dominated atmosphere.” 24 We address each argument in turn. In arguing that his consent was coerced by a claim of lawful authority, Degarmo claims that after he read and signed the postarrest chemical test advisement form (which directed him to submit to a breath test), he was left with the “‘impression’” that if he did not also sign the consent to search form and agree to a search of his urine, that he “‘was going to be guilty no 22 Schriner, supra note 8. 23 Brief for appellant at 20. 24 Id. - 691 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. DEGARMO Cite as 305 Neb. 680 matter what.’” 25 We find this argument unavailing in light of the plain language of the consent to search form. [10] The consent to search form expressly advised Degarmo that he had a constitutional right not to have a search made of his blood or urine without a search warrant, and the form unequivocally stated that Degarmo had a right to refuse to consent to such a search. While there is no requirement that police must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search, knowledge of the right to refuse is a factor to be considered in the voluntariness analysis. 26 Here, the fact that Degarmo was told he had a constitutional right to refuse a warrantless search of his urine is a factor that weighs heavily in favor of finding his consent to such a search was voluntary. [11] The consent to search form also told Degarmo that if he refused to give consent to search his blood or urine, then officers would seek a search warrant. In his reply brief, Degarmo suggests that the threat of being “detained even further for the possible issuance of a search warrant” 27 was itself coercive, but we disagree. As we explained in State v. Tucker, 28 “A statement of a law enforcement agent that, absent a consent to search, a warrant can be obtained does not constitute coercion.” Having considered the language of the postarrest chemical test advisement form in conjunction with the plain language of the consent to search form, we reject Degarmo’s suggestion that an objectively reasonable person would be left with the impression he or she had to consent. Nor are we persuaded by Degarmo’s claim that his consent was coerced simply by being “in a police-dominated atmosphere.” 29 Degarmo suggests his consent to the urine 25 Id. 26 See United States v. Drayton, 536 U.S. 194, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002). 27 Reply brief for appellant at 3. 28 State v. Tucker, 262 Neb. 940, 948, 636 N.W.2d 853, 860 (2001). 29 Brief for appellant at 20. - 692 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. DEGARMO Cite as 305 Neb. 680 search was not voluntary because he “had been arrested, placed in handcuffs, put into a police cruiser, driven to detox, [and] subjected to various tests.” 30 All these are factors to consider in a totality of the circumstances analysis, but having done so, we do not agree with Degarmo that any of these factors vitiate the voluntariness of his written consent. The U.S. Supreme Court has held the “fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.” 31 And this court has similarly recognized that “[t]he mere fact that the individual is in police custody, standing alone, does not invalidate the consent if, in fact, it was voluntarily given.” 32 Here, the record shows Degarmo’s arrest and transport to a detox center were part of a routine DRE investigation, which was video recorded. There is no evidence that police conducted either the arrest or the DRE in a threatening or coercive manner. 33 Having considered the totality of the circumstances, we determine Degarmo’s written consent to the warrantless search of his urine was voluntary and not coerced. The motion to suppress was properly denied by the county court, and that denial was properly affirmed by the district court.",analysis
+136,3063379,1,3,"After a review of the law and record, we find the court of appeal committed legal error in amending the trial court’s judgment to assign 100% fault to WinnDixie. We find the jury’s allocation of 30% fault to Winn-Dixie and 70% fault to KAP is supported by the record. For the above reasons, we reverse the judgment of the court of appeal as to apportionment of liability and reinstate the district court’s judgment on the jury’s allocation of fault. We likewise reverse the court of appeal’s judgment assessing 100% of the costs to Winn-Dixie and reinstate the district court’s 4 La. C.C.P. art. 2164 provides: “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.” 16 order taxing Winn-Dixie and Ms. Thompson each with 50% of the costs.",conclusion
+137,1877277,1,2,"[1, 2] ¶ 10. This case is before the court on statutory certiorari pursuant to Wis. Stat. § 236.13(5), which incorporates the review procedures of Wis. Stat. §§ 62.23(7)(e)10., 14., and 15. [12] Generally, the review standards of common-law certiorari apply in a statutory certiorari case if a circuit court is empowered under the statute providing for certiorari to take evidence on the merits of an administrative decision but takes no such evidence. . . . State ex rel. Brookside Poultry Farms, Inc. v. Jefferson County Bd. of Adjustment, 131 Wis. 2d 101, 122, 388 N.W.2d 593 (1986). Under common-law certiorari, the findings of the [approving authority] may not be disturbed if any reasonable view of the evidence sustains them. . . . Brookside, 131 Wis. 2d at 120 (quoting Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis. 2d 468, 476, 247 N.W.2d 98 (1976)). ¶ 11. Under Sections 236.13(5) and 62.23(7)(e)10., a circuit court may take additional evidence. In the present case, the circuit court did not do so. Therefore, the City argues that we must uphold its decision if we find any evidence in the record that it acted reasonably. [3] ¶ 12. We agree that we must give deference to the City's factual reasons for conditionally approving the plat. See Busse v. City of Madison, 177 Wis. 2d 808, 811-12, 503 N.W.2d 340 (Ct. App. 1993). However, we disagree that we must give deference to the City's decision as to issues of law. In particular, whether an approving authority exceeded its statutory or constitutional authority is a question of law, which we review de novo. See Lake City Corp. v. City of Mequon, 207 Wis. 2d 156, 162-63, 558 N.W.2d 100 (1997); Rice v. City of Oshkosh, 148 Wis. 2d 78, 84, 435 N.W.2d 252 (1989); Pederson v. Town Bd., 191 Wis. 2d 663, 669 n.2, 530 N.W.2d 427 (Ct. App. 1995); Gordie Boucher Lincoln-Mercury v. City of Madison Plan Comm'n, 178 Wis. 2d 74, 84, 503 N.W.2d (Ct. App. 1993) (hereinafter Gordie Boucher). [13]",standard of review
+138,1253046,1,2,"¶ 21. The issue presented in this case requires us to review a probation revocation by the DOC. Our review is therefore limited to determining: (1) whether the Department acted within the bounds of its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will, not its judgment; and (4) whether the evidence was sufficient that the Department might reasonably make the determination that it did. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 628-29, 579 N.W.2d 698 (1998). [1] ¶ 22. Kaminski's revocation was based on findings that he violated two rules of probation. He does not challenge these findings—he admits both violations. He instead claims that the DOC did not act according to law in imposing one of these rules of probation, and that the rule was unreasonable. Whether a condition or rule of probation is contrary to law is a question of law, which this court reviews de novo. Id. at 629. ¶ 23. Whether a condition or rule of probation is unreasonable is dependent on whether the condition or rule serves the dual goals of probation: rehabilitation and protection of the community. State v. Heyn, 155 Wis. 2d 621, 629, 456 N.W.2d 157 (1990).",standard of review
+139,2512331,1,1,"
+Because the circuit court dismissed Young's first`amended complaint, pursuant to Hawai`i Rules of Civil Procedure (HRCP) Rule 12(b)(6), on the basis that it failed to state a claim upon which relief could be granted, we take the complaint's factual allegations as true for purposes of this appeal. See Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 113 Hawai`i 251, 266, 151 P.3d 732, 747 (2007) (observing that, `in reviewing the circuit court's order dismissing the plaintiffs' complaint in this case, our consideration is strictly limited to the allegations of the complaint, and we must deem those allegations to be true' (quoting Dunlea v. Dappen, 83 Hawai`i 28, 32, 924 P.2d 196, 200 (1996), overruled on other grounds by Hac v. Univ. of Hawai`i, 102 Hawai`i 92, 105-07, 73 P.3d 46, 59-61 (2003))). The first amended complaint included the following factual allegations.
+In the mid-1990s, Allstate devised a plan to redesign the process by which it handled personal injury claims. This plan was referred to in internal implementation training manuals as the Claims Core Process Redesign or CCPR. Excerpts of those manuals were attached as exhibits to the first amended complaint. The CCPR plan was intended to increase profits by over $200,000,000.00 annually by underpaying claims and denying claimants just and reasonable compensation. According to the CCPR manual, one of the plan's primary goals was to manage specific components of severity (average amount paid per claim) to provide greater financial support to the company. One such component was the rate at which claimants were represented by legal counsel. Allstate's CCPR manual directed claim representatives to realiz[e] that the way we approach claimants and develop relationships will significantly alter representation rates and contribute to lower severities. The manual explained that when an attorney represents a claimant, we pay 2-3 times more to settle the claim. Consequently, Allstate instructed its claim personnel to do whatever it takes to remove any need for an attorney. Allstate implemented this directive by requiring representatives to [e]stablish a trust-based relationship with claimants through [e]xtremely rapid contact to educate claimants about Allstate's approach to fair claim settlement and through [a]nticipation and resolution of a broad range of claimant needs in a genuine and emphatic manner. Representatives were also directed to initiate a [p]roactive discussion of attorney economics with claimants through this process, and to follow up regularly with claimants to reduce the need for attorney involvement. In addition to oral assurances, Allstate representatives were supposed to provide a written quality service pledge. The pledge informed claimants that, [b]ecause you have been involved in an accident with an Allstate policyholder, we will provide you with quality service. The pledge additionally stated that Allstate will make an appropriate offer of compensation for any injuries you may have suffered. By dissuading claimants from seeking legal counsel, Allstate was able to prey upon injured and unrepresented claimants' trust and lack of knowledge and to deny or settle claims for a fraction of their value. In handling minor-impact, soft-tissue or MIST claims, Allstate calculated settlement offers through its Colossus computer valuation system. [2] Allstate's CCPR manual instructed adjusters that, [w]hile every case should be evaluated on its merits and adjustments in settlement value will often be required, the new evaluation approach should lead to more settlements in the base value range and fewer settlements greater than the historical median. The Colossus system was intended to create unreasonably low evaluations and settlements for personal injury claims. If a settlement offer were not accepted or the claimant hired an attorney, Allstate would fully litigate virtually every claim, irrespective of its insured's liability or the real physical harm and value of the injuries suffered by the claimant. Allstate thereby sought to subject claimants to unnecessary and oppressive litigation and expenses, or, in other words, scorched-earth litigation tactics. Allstate intended to force claimants and their attorneys through arbitration and trial unnecessarily. For example, if a non-binding arbitration award were anything more than nominal, Allstate's practice was to appeal the award. The insurer employed these tactics to discourage claimants from pursuing injury claims. Allstate also sought to discourage attorneys from representing claimants by creating so much work and expense that they could not afford to advocate for a client with minor, moderate, or sometimes even serious injuries. Aside from the rate at which claimants were represented by counsel, another significant severity component was the amount paid for bodily injury claims. According to the CCPR manual: Of the components that account for paid losses, [bodily injury] is by far the largest. Controlling loss payout is clearly the most effective means of controlling casualty costs. The manual illustrated that a five percent reduction in the amount paid on bodily injury claims would yield profits of $201,000,000.00 per year. The manual gave specific instructions to representatives handling MIST claims, which typically arose from minor-impact automobile accidents that caused connective tissue, organ, or muscle damage, but not broken bones. According to the CCPR manual, MIST claims rarely reached trial, because on a case-by-case basis, a settlement [could] be justified when litigation costs [were] considered. Consequently, Allstate instructed its claim representatives to meet with the claimants' attorneys to emphasize those costsÔÇö i.e., attorney economicsÔÇöthrough threats, intimidation, and strong-arm tactics. Representatives were directed [t]o send a message to attorneys of [Allstate's] proactive defense stance on MIST cases, which force[d] the claimant and attorney to think about the obstacles they must overcome to recover a significant settlement or the benefits of a small `walk-away' settlement. Allstate carried out its policies through the active participation of its attorneys. The Litigation Management section of the CCPR manual segmented, or targeted, certain claims for litigation and trial. One such litigation segment was referred to as Settle for `X' or lessÔÇödefault to trial. In outlining the nature of such cases, the manual noted that the [p]rimary reason [that the] case [wa]s being defended [wa]s that [the] plaintiff ha[d] not accepted Allstate's offer. Once a case was targeted for trial under the Settle for `X' or less segment, an Allstate attorney was required to appeal [the] non-binding arbitration/mediation award as directed by [the] claim rep[resentative]. Likewise, an intended resolution by Allstate's claim representative to try [a] case had to be followed by Allstate's staff counsel. Allstate's attorneys were required to increase trial activity in appropriate cases, such as where settlement [could not] be reached for [the] evaluated amount. The reason that Allstate's attorneys were expected to have more trials was to reduce loss payout. Allstate used incentive compensation programs to encourage its attorneys to try more cases, irrespective of whether such litigation was justified by the facts. For Allstate's staff attorneys, increased trial activity was an objective set forth in the CCPR manual, with compensation and financial reward programs for the attorneys who met CCPR objectives. The more cases they tried, the more they might qualify for awards and salary increases. Allstate's attorneys' performance was also measured by whether they achieved results at or below the evaluated claim amount. Allstate's managing attorneys were expected to monitor their staff counsel aggressively. For example, under the CCPR manual, one corrective action for poorly performing offices was to put managing attorney bonuses at risk or change [the] managing attorney.
+On February 4, 1998, Young was stopped in traffic in Hilo, Hawai`i, when a car operated by an Allstate-insured driver, Daryl Fujimoto (insured), hit the rear of Young's 1984 Ford. The insured informed Allstate that he fell asleep while driving and caused the crash. As a result of the collision, Young's automobile (worth about $1,795) was destroyed, and Young, who was eighty-four years old at the time of the accident, sustained injuries to her neck, ribs, right knee, and thoracic and lumbar spine. Young had difficulty performing activities of daily living and, consequently, began suffering from depression.
+An Allstate claim representative contacted Young on the same day of the collision and informed her that Allstate would provide `quality service' on her claim, treat her fairly, and [] that, because of these promises, she did not need any attorney. Shortly thereafter, Young received a letter dated February 4, 1998 from Allstate, which stated: I want to reaffirm Allstate's policy that we will provide quality service to anyone who has been involved in an accident with one of our policyholders. As your claim representative, my role is to ensure that you receive this quality service, outlined in the enclosed `Quality Service Pledge.' Accompanying the letter was a QUALITY SERVICE PLEDGE, which stated that YOU'RE IN GOOD HANDS WITH ALLSTATE and that: Because you have been involved in an accident with an Allstate policyholder, we will provide you with quality service. In an effort to provide you with this quality service, we promise you the following: 1) We will fully explain the process, take the time to answer all questions and concerns that you may have, and keep you informed throughout the claim process. 2) We will conduct a quick, fair investigation of the facts in your case. 3) To the extent that our policyholder was at fault in the accident, we will assist you in providing for the repair of your vehicle and in determining your temporary transportation needs. Your claim professional is dedicated to carrying out this Quality Service Pledge. (Emphases in original.) Thereafter, Allstate sent a second letter to Young requesting that she authorize Allstate to gather her medical and employment information to evaluate her injury claim. The quality service pledge attached to the second letter differed from the pledge attached to the first letter to the extent that the third promise, which concerned transportation and vehicular repair, instead stated: 3) If you qualify, we will make an appropriate offer of compensation for any injuries you may have suffered. (Emphasis in original.) Young relied upon Allstate's oral and written representations, believing that she did not need an attorney and that Allstate would treat her fairly, just as it would be expected to treat one of its own customers. As a result of those representations, Young attempted to resolve her bodily injury claim directly with Allstate without advice or assistance from an attorney. Additionally, Young released her medical information to Allstate.
+On March 15, 1999, when Young had already incurred over $6,000 in medical expenses and was still receiving medical care for her injuries, Allstate offered Young $5,000 to settle her claims and release Allstate and the insured from liability. Allstate represented that it fairly evaluated [Young's] injury claim for settlement and that Young's no-fault insurance coverage should pay for her accident related treatment. Young rejected the $5,000 offer, and on April 22, 1999, Allstate raised its offer to $5,300. It presented the offer to Young, who it knew was still unrepresented by counsel, together with a joint tortfeasor release and indemnity agreement for her signature. Allstate was aware that Young was permanently injured, then eighty-five years of age, and in a very vulnerable position. In making the offer, Allstate represented to Young that she had sustained mere minor injuries and that she should accept the offer. Young was deeply distressed because she felt that Allstate was breaking its promises and violating its pledge to fairly evaluate her claim. She therefore sought the assistance of an attorney, who attempted to negotiate a fair settlement with Allstate, but Allstate refused to make any offer beyond $5,300.00.
+On April 17, 2000, Young filed suit against the insured, seeking fair compensation for her injuries sustained from the February 1998 car crash. Allstate, through its attorney, Ichiyama, filed an answer on December 18, 2000, alleging, among other things, that Young was injured by her own negligence and that she failed to mitigate her injuries. The defenses caused Young, who was eighty-seven years old at the time, extreme distress and shame. After Young's deposition, Ichiyama indicated that he would recommend that Allstate pay Young its insured's $25,000 limit of coverage. Still, Allstate refused to increase its offer. The case proceeded to the court annexed arbitration program, but the Defendants never took the arbitration seriously; they entered the arbitration hearing with the intention of appealing any award that exceeded a nuisance value for the claim. On June 12, 2001, the arbitrator awarded Young medical expenses of $7,689.51 and general damages of $37,000, for a total award of $45,189.15. On June 26, 2001, Ichiyama filed a notice of appeal requesting a trial de novo. The circuit court ordered the parties to participate in mediation, which was unsuccessful because Allstate refused to improve its nuisance offer of $5,300.00. Thereafter, on July 19, 2001, Young filed a HRCP Rule 68 [3] general damages only offer of judgment for $25,000. Allstate rejected Young's offer, and, in November 2001, it filed an offer of judgment for $5,300. Young again rejected this offer. Following a four-day jury trial in January 2002, the jury awarded Young a total of $198,971.71 (special damages of $11,971.71 and general damages of $187,000). Allstate offered Young $260,000 to settle the lawsuit and give up any right to bring a suit for bad faith against Allstate. However, Young rejected that offer because she wanted to expos[e] Allstate's misconduct on her claim and case to other members of her community. On April 8, 2002, at Young's request and over the opposition of Defendants, the court awarded Young attorney's fees of $15,000, costs pursuant to Hawai`i Revised Statutes (HRS) ž 607-9 of $3,334.48, and costs pursuant to Hawai`i Arbitration Rules (HAR) Rule 26(B)(1). [4] The circuit court also awarded Young $35,090.03 in prejudgment interest.
+On May 15, 2003, Young filed a complaint against Defendants. The following month, she filed her first amended complaint, alleging that she was a victim of Allstate's plan, Claim Core Process Redesign, because Allstate formed a trust-based relationship with her to coerce her into accepting a low settlement offer. Young argued that Defendants refused to make her a reasonable offer and forced the case through arbitration, then appealed the arbitration award and forced her through a jury trial, and finally, contested her motions for attorneys' fees and costs sanctions and prejudgment interest. Young argued that these tactics were designed for one purpose: to drive up [her] costs and to coerce, intimidate and punish [Young] for refusing to accept Allstate's $5,300 offer and getting an attorney. Young asserted Defendants were liable for, among other things, (1) abuse of process, (2) malicious defense, and (3) IIED, and that Allstate had breached an assumed duty of good faith and fair dealing. For each claim, she requested compensatory and punitive damages. On June 25, 2003, Defendants filed a motion to dismiss Young's complaint (motion to dismiss) under HRCP Rule 12(b)(6) [5] for failure to state a claim for which relief may be granted. In support of their motion, Defendants argued: (1) Defendants did not abuse process by refusing to make reasonable settlement offers, appealing the arbitration award, and alleging affirmative defenses in their answer because these acts were not judicial and, even if they were judicial, Defendants acted with the purpose for which the judicial processes are intended; (2) Hawai`i has not recognized a claim for relief of malicious defense; (3) Allstate did not owe Young a duty of good faith and fair dealing because the parties did not have a contractual relationship by virtue of Allstate sending Young its pledge; and (4) Defendants did not act without just cause or excuse and beyond all bounds of decency by defending the insured against Young's lawsuit and therefore, are not liable for IIED. On July 28, 2003, Young filed a memorandum in opposition to Defendants' motion to dismiss. The circuit court heard the motion on August 5, 2003. Young's abuse of process claim asserted that the Defendants had used legal process against her for an ulterior purpose not proper in the regular conduct of the proceedings ÔÇöto send a message to claimants and attorneys and to punish Young and her attorney through excessive litigation expenses, harassment, oppression, and abuse. According to Young, the Defendants' conduct was part of a nationwide practice, employed in Hawai`i, to use litigation, discovery procedures, arbitrations, appeals from arbitrations, and trials as a war of attrition. Young alleged that the Defendants did not intend to make any reasonable attempt to address or litigate the merits of the case. She also alleged that Ichiyama, while carrying out the instructions, wishes, and intent of his principal and employer, Allstate, engaged in the misuse of process and imprudent use of the courts for an end other than that for which they were designed. Relying on Wong v. Panis, 7 Haw.App. 414, 420-21, 772 P.2d 695, 699-700 (1989), abrogated on other grounds by Hac, 102 Hawai`i at 105-07, 73 P.3d at 59-61, the circuit court explained that settlement was a proper purpose of judicial process. As such, the circuit court concluded that Young's allegations did not state a claim for which relief could be granted. With respect to her malicious defense claim, Young alleged that the Defendants took an active part in the initiation, continuation, or procurement of the defense in Young's case against Allstate's insured. She alleged that the Defendants (1) maliciously defended the case and used the courts imprudently by acting without reasonable or probable cause and by acting with knowledge or notice that their positions lacked merit and (2) acted primarily for a purpose other than that of securing a proper adjudication of the claims and defenses, such as to harass, annoy, or injure or to cause an unnecessary delay or a needless increase in litigation costs. Despite these tactics, the underlying proceedings culminated in Young's favor. The circuit court declined to recognize the tort of malicious defense because it believed that a defendant, who has been haled into court involuntarily, should not be required to elect whether to vigorously defend and suffer the prospect of an additional lawsuit or to defend less vigorously. The circuit court further reasoned that, in cases in which a defendant acts improperly, sanctions could be imposed. Young's IIED claim asserted that, at all material times, the Defendants were aware that Young was an elderly woman who was in pain, incapacitated in her ability to care for herself, suffering from depression as a result of the injuries she sustained in the February 4, 1998 collision, and relying upon a fair recovery of the damages that she had sustained. Young alleged that the Defendants anticipated that, because of her age, Young might not survive to recover through the courts, and that when Young came to that realization, she would accept a nominal settlement amount. In short, Young asserted that the Defendants, through their abusive legal processes and malicious defense of Young's claims for personal injury damages, appealed the arbitration award and forced her to go to trial in order to obtain a fair recovery for her injuries, with the intention of inflicting severe emotional distress upon Young. The circuit court concluded that the Defendants' acts were not without just cause or excuse or beyond all bounds of decency or outrageous. With respect to the claim of assumed duty of good faith and fair dealing, Young alleged that Allstate had advised her that it would address her claim pursuant to a quality service pledge, in which Allstate promised her that (1) her third-party claim would be handled fairly and in a relationship of trust and (2) it would make a fair and appropriate settlement offer to her. According to Young, by making these representations, Allstate assumed a duty of good faith and fair dealing in handling Young's claims that arose out of the February 4, 1998 collision and then breached that duty by intentionally engaging in abusive and unfair practices. The circuit court concluded that these allegations failed to state a claim for which relief could be granted, because Allstate's representations did not result in an assumption by Allstate of a duty of good faith and fair dealing. The circuit court entered an order dismissing Young's claims of abuse of process, malicious defense, IIED, and assumed duty of good faith and fair dealing on July 19, 2004, and entered its final judgment on September 17, 2004. Young filed a timely notice of appeal on October 8, 2004.",facts
+140,1119654,1,5,"Although we decline to reject our common enemy jurisprudence in favor of the reasonable use rule, we take the opportunity to clarify that Washington's law of drainage allows for a due care exception to the general rule against liability. Because there is a genuine issue of material fact as to whether Sleek exercised due care, summary judgment is reversed. SMITH, JOHNSON, ALEXANDER, TALMADGE, and IRELAND, JJ., concur. SANDERS, J. (dissenting). Damnum absque injuria is the doctrine which allows for [l]oss, hurt, or harm without injury in the legal sense; that is, without such breach of duty as is redressible by a legal action. Black's Law Dictionary 393 (6th ed.1990). Such is the general rule which denies imposition of liability on the owner of an upland estate for damages occasioned to his low-land neighbor by surface water drainage. Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896). To this general rule of nonliability we have recognized two certain exceptions relating to blockage of a water course and/or collecting and channeling water onto one's neighbor's property. However, as the majority correctly observes, neither exception pertains here. So we are left with three choices: (1) we can affirm the trial court and the Court of Appeals by dismissing the action; (2) we can abandon the doctrine altogether; or (3) we can engraft a reasonable use exception. The majority chooses the third, but I would repair to the first. Notwithstanding, even if the third course were open to us, I would not find these facts to flow within its banks. The majority's reasons not to adopt a reasonable use rule are equally applicable to rejection of a reasonable use exception. One such objection is that the reasonable use rule is inconsistent with this state's historic deference to property rights and the adoption of such a rule would constitute an abrupt break with past precedent. Majority at 631. I would add, both the rule and the exception lack certainty and predictability. Both lead to an ad hoc jurisprudence. Commentators have found no difference in application between the reasonable use rule and the reasonable use exception. If the common enemy rule says: YOU CAN TAMPER WITH NATURAL FLOW and the modification adds: IF YOUR CONDUCT IS REASONABLE and if the natural flow rule says: YOU CANNOT TAMPER WITH NATURAL FLOW and the modification adds: UNLESS YOUR CONDUCT IS REASONABLE then, there would seem to be no difference, and the summation would result in a new rule: YOU CAN OR CANNOT TAMPER WITH NATURAL FLOW DEPENDING UPON WHETHER YOUR CONDUCT IS OR IS NOT REASONABLE. The only suggested difference is in the practical question of prediction and proof. The notion is that with a modified natural flow rule, the burden is on one who interferes to show reasonable conduct, whereas with a modified common enemy rule, the premise is in favor of alteration and the person claiming damage has to show that the conduct was unreasonable. Such a distinction would seem to follow from the basic premise of each rule; if such a distinction exists, however, the cases on reasonable use modification have not made it clear. 5 Robert E. Beck & Edward W. Clyde, Waters and Water Rights § 453.3, at 518 (Robert Emmet Clark ed., 1972) (footnote omitted). The majority's attempt to unambiguously (Majority at 630) add some definition to what is or is not within the new exception is quite unsatisfactory: What this means in practical terms is that landowners may improve their land with impunity (subject to local land use and permitting requirements) and are not liable for damage caused by the change in the flow of surface water onto their neighbors' land, so long as the landowners act in good faith and do not damage adjacent property in excess of that called for by the particular project. Majority at 630. The difficulty with the majority's invented exception is amply demonstrated by the manner in which the majority attempts to apply it to the facts of this case. While the majority recognizes that landowners may improve their property with impunity and are therefore not liable for damage caused by the change in the flow of surface water onto their neighbors' land, the majority would only include within this rule of nonliability (1) act[s] in good faith which (2) do not damage adjacent property in excess of that called for by the particular project. Majority at 630. Here the uphill landowner clear-cut a forested area to allow for future development. There is no claim that this clear cut was unreasonable or unnecessary for either the development or, for that matter, the harvest of timber. Nor is there any claim that the clear cut was accomplished in an extraordinary or unusual manner, although all concede clear-cutting trees may increase diffuse surface drainage. Significantly, there is no evidence removal of these trees either blocked a water course or collected or channeled water. The common law rule imposes no liability on the uphill landowner due to a mere increase in surface drainage which his development might occasion. Hedlund v. White, 67 Wash. App. 409, 416 n. 10, 836 P.2d 250 (1992) ([A]n uphill owner may incidentally increase the quantity or velocity of surface water in a natural watercourse or drain, so long as the water is not ultimately diverted from its natural flow.); Wilber Dev. Corp. v. Les Rowland Constr., Inc., 83 Wash.2d 871, 876, 523 P.2d 186 (1974) ([T]he mere fact that the amount of water reaching the plaintiff's land, by reason of the development of the platted lands, might be greater than it formerly was, would not entitle it to compensation for any resulting damage.), overruled on other grounds by Phillips v. King County, 136 Wash.2d 946, 968 P.2d 871 (1998). Therefore the proper legal conclusion is that the increased runoff occasioned by this project would not, under any construction of the established rule, impose liability on the uphill landowner. Indeed the only thing the uphill landowner failed to do was prevent runoff onto his downhill neighbor by constructing a dry well, dam, or intersecting ditch. While he or she could have done those things, it is the very purpose of the traditional rule to relieve the uphill landowner of that responsibility, casting it instead upon the lowland owner. To say then that the uphill landowner is required to exercise due care in the sense that the uphill landowner must not discharge surface water onto the lowland estate is to allow the so-called exception to devour the rule. [1] Even jurisdictions that subscribe to the reasonable use exception do not premise a lack of due care upon the failure to construct a drainage ditch. See, e.g., Ballard v. Ace Wrecking Co., 289 A.2d 888, 890 (D.C. 1972) ([S]ince the defendants did nothing more than clear the land in a manner which was reasonable and non-negligent as they were entitled to do for the purposes of demolition and new construction ... there ... [is] no duty on their part to construct a drainage ditch....). But now the majority has apparently imposed an undefined duty upon the upland owner to use due care not to discharge increased surface waters onto the low-land property even though those surface waters are the necessary result of the development of the land for civilized use. By predictable consequence, every time the lowland property owner experiences water damage attributable to drainage he will have a potential claim against the upland owner for failure to use due care to prevent the water from flowing onto his property in the first place. Although the majority casts its rule as the opportunity to clarify Washington's drainage law (Majority at 632), in point of fact it is a total abrogation of the certain rule of nonliability in such situations. Moreover, if we impose a duty of due care, how do we determine when that duty has been discharged? The majority apparently defers this question to the jury without further definition, thereby inviting lack of certainty and ad hoc decision-making. It does suggest, however, that the failure of a landowner to conform to his environmental checklist may be considered by the trier of fact (Majority at 632), although the majority does not purport to limit the duty of due care simply to variations from an environmental checklist, nor even hold such lack of conformity, if found, demonstrates lack of due care (We do not now hold that the mere failure to comply with the Environmental Checklist in and of itself constitutes a lack of due care. Majority at 632.). Unless we can identify a factual basis in this record which, if proved, would support the conclusion that this property owner has not exercised due care, we have no business remanding this case for a useless trial. Olympic Fish Prods., Inc. v. Lloyd, 93 Wash.2d 596, 602, 611 P.2d 737 (1980) (purpose of a motion for summary judgment is to avoid useless trials when no genuine issue of material fact exists). The majority cites no authority in support of its claim that breach of a permit condition, much less variation from an environmental checklist, may even be considered by the trier of fact to impose a duty on an upland landowner to benefit his lowland neighbor. I would not casually announce such a far-reaching doctrine without argument, briefs, and precedential authority, none of which is present here. The State Environmental Policy Act of 1971 (SEPA) checklist supplied to the Department of Natural Resources stated runoff water will flow into dry wells. Clerk's Papers at 57. Compliance with SEPA may be a condition precedent to permit issuance although it is not a permit in and of itself. An environmental checklist is an informational document submitted to the responsible official to assist his threshold determination as to whether further environmental review is necessary or appropriate. The checklist may be helpful to determine if the project has a probable significant adverse environmental impact. RCW 43.21C.031. At most a misrepresentation or lack of material disclosure in an environmental checklist allows the responsible official to withdraw the determination of nonsignificance. WAC 197-11-340(3)(a)(iii). But even if it were ultimately appropriate to mitigate or deny a project pursuant to SEPA, such mitigation or denial must be based upon a formally designated policy plan, rule, or regulation to pass legal muster. WAC 197-11-660(1)(a). But there is no evidence of such a formally adopted regulation requiring dry wells in this record. In the final analysis the majority's imposition of a generalized duty of due care is not a clarification of preexisting law but its complete abrogation. Moreover, the only facts of record suggesting the uphill landowner failed to use due care in this case is the failure of the uphill landowner to take positive preventive measures to divert the natural flow of surface water away from the downhill property. The common law does not impose such a duty, nor does our precedent, nor does precedent from even those jurisdictions which have adopted the reasonable use exception. If the majority wants to reach such a result, thereby abrogating the applicable rule in favor of uncertainty and chaos, it should first overrule prior precedent and provide a justification for doing so. But it does not, and I cannot. Therefore I dissent. GUY, C.J., and MADSEN, J., concur.",conclusion
+141,1984228,1,1,"VMI's Petition for Writ of Mandamus prayed for a writ requiring the deposit and for judgment against defendants    for costs, including reasonable attorneys' fees. But the motion for summary judgment was limited to the mandamus relief, and the court's order was confined accordingly. Because trial court did not rule on the merits of VMI's prayer for costs, including reasonable attorneys' fees, VMI argues the summary judgment entered was an interlocutory order and not appealable. See rule 1, Iowa Rules of Appellate Procedure. We disagree. The Petition for Writ of Mandamus was aimed at securing compliance with § 472.30, The Code (If, on the trial of the appeal, the damages awarded by the commissioners are increased, the condemner shall, if he is already in possession of the property, make such additional deposit with the sheriff, as will, with the deposit already made, equal the entire damages allowed.   ). There is an indication in papers filed below and here that the other relief prayed for in VMI's petition—costs, including attorney fees—was based on a different statute, § 472.34 (Should the applicant decline, at any time after an appeal is taken as provided in section 472.18, to take the property and pay the damages awarded, he shall pay, in addition to the costs and damages actually suffered by the landowner, reasonable attorney fees to be taxed by the court.). The City's brief asserts that VMI's prayer for recovery of costs including reasonable attorneys' fees constitutes in actuality a separate cause of action. The only allegation in VMI's petition which supports this branch of the prayer is a statement that plaintiff will incur in the future indebtedness for attorney's fees in the enforcement of its statutory and constitutional rights. Chapter 661 (Mandamus) makes no provisions for taxation of attorney fees as part of the costs. Ordinarily attorney fees are not recoverable as costs unless explicitly provided for by statute. Harris v. Short, 253 Iowa 1206, 1208, 115 N.W.2d 865, 866 (1962). Properly pled, the joinder of a § 472.34 damage claim with this action for mandamus would have been improper. See § 611.12, The Code. In absence of an improper joinder motion pursuant to rule 27(b), Rules of Civil Procedure, the court could have severed such a claim for separate trial. Rule 186, R.C.P. In the case before us, there was no proper pleading to support attorney fees under any theory. We view the court's ruling that such a claim should await further motions or pleadings relating thereto as merely preserving VMI's right, if any, to bring such a claim in the future, and rejecting consideration of such claim in the mandamus proceeding. We think trial court's judgment was a final appealable disposition. We have the requisite jurisdiction to proceed.",jurisdiction
+142,2183603,1,4,"The defendant contends that the State failed to prove that the crime occurred in Marion County and that, therefore, the conviction should be vacated because of the State's failure to prove venue beyond a reasonable doubt. Proper venue must be proved by the State, but the applicable test is that it be shown by a preponderance of the evidence. Morris v. State (1980), 274 Ind. 161, 409 N.E.2d 608. The burden in this regard is satisfied if there is evidence of probative value which a reasonable trier of fact could conclude preponderates in favor of the existence of the requisite venue. Circumstantial evidence, standing alone, may be sufficient. Id. The killing took place at Snupee's Restaurant at 501 East 30th Street. Officers from the Indianapolis Police Department investigated the crime. The autopsy on the victim was performed by the Marion County Coroner's Office. We therefore find that sufficient evidence was presented for the jury to infer that the offense occurred in Marion County, Indiana. The judgment of the trial court is affirmed in all respects. GIVAN, C.J., and DeBRULER, PIVARNIK and SHEPARD, JJ., concur.",issues
+143,6111054,4,1,"First, territorial jurisdiction over a criminal defendant is controlled by statute. Arkansas courts have jurisdiction to convict a person under this state's laws when a crime is committed by a person if [e]ither the conduct or a result that is an element of the offense occurs within the state. Ark. Code Ann. § 5-1-104 (a)(1) (Repl. 2013); see also Kirwan v. State , 351 Ark. 603 , 616, 96 S.W.3d 724 , 731 (2003). We have stated that 'when reviewing the evidence on a jurisdictional question, [we] need only determine whether there is substantial evidence to support the finding of jurisdiction.' [ Kirwan , 351 Ark. 603 , 96 S.W.3d 724 ]; Dunham v. State , 315 Ark. 580 , 581, 868 S.W.2d 496 , 497 (1994). Ridling v. State , 360 Ark. 424 , 435, 203 S.W.3d 63 , 70 (2005).",jurisdiction
+144,886156,1,4,"¶ 14 Did the District Court err when it permanently enjoined the Wallaces from causing or allowing their game farm elk to be transported to the Crow Indian Reservation for release into the wild? ¶ 15 The Wallaces contend that the District Court erred when it issued a permanent injunction prohibiting them from transferring their elk to the Crow Tribe because the party seeking the injunction, FWP, lacked jurisdiction over the inspection, transportation, and health of the alternative livestock they owned. The Wallaces assert that pursuant to Montana's statutory scheme regulating game farm licensees, DOL, not FWP, had authority and primary jurisdiction over the transfer. In this case, DOL inspected the herd for brucellosis, tuberculosis, elk-red deer hybridization, and CWD, and granted a permit allowing transport of the elk to the Crow Indian Reservation. Therefore, the Wallaces contend that the transfer should have been allowed. Alternatively, the Wallaces argue that even if FWP had authority over the transfer, it could not demonstrate that harm would result from the transfer given DOL's conclusion that the Big Velvet herd posed no realistic threat to Montana's livestock, native deer and elk populations, or human health. ¶ 16 In response, FWP asserts that the Wallaces violated various statutory requirements for game farm licensees which were its responsibility to enforce, whether or not they satisfied DOL's requirements. For example, FWP contends that it has the duty to protect native wildlife populations, enforce the fencing of game farms, and prevent the release of game farm elk into the wild. FWP contends that upon transfer of the Big Velvet herd to the Tribe, the elk would not have been confined behind a game-proof fence, would not have been transferred to another licensed alternative livestock ranch, and, as a result, could migrate back into Montana from the Crow Indian Reservation. Therefore, FWP contends that it had a duty to act and the District Court did not err when it granted the permanent injunction. ¶ 17 The District Court agreed with FWP on the sole basis that the Wallaces' actions violated § 87-4-414(6), MCA. Section 87-4-414(6), MCA, provides in part that alternative livestock may only be kept on a licensed alternative livestock ranch. Because the Crow Tribe was not a licensed alternative livestock facility under Montana law at the time of the transfer, the District Court concluded that neither FWP nor DOL had the authority to permit the transfer of the Big Velvet herd to the Crow Tribe. We conclude that the District Court arrived at the correct result for the following reasons. ¶ 18 Section 87-4-408, MCA, generally delineates the respective responsibilities of FWP and DOL in the game farm context, and provides: Jurisdiction. (1) The department [FWP] has primary jurisdiction over alternative livestock ranches with regard to licensing, reports, recordkeeping, exterior fencing, classification of certain species under 87-4-424, unlawful capture under 87-4-418, inspection under 87-4-413, and enforcement of the functions listed in this subsection. (2) The department of livestock has primary jurisdiction over alternative livestock ranches with regard to marking, inspection, transportation, importation, quarantine, hold orders, interior facilities, health, and enforcement of the functions listed in this subsection. [Emphasis added.] The jurisdictional boundaries set forth in § 87-4-408, MCA, generally correspond to the underlying function of each department. FWP, as provided in § 87-1-201(2), MCA, has a duty to enforce all the laws of the state respecting the protection, preservation, and propagation of fish, game, fur-bearing animals, and game and nongame birds within the state. See also Matter of Brogan (1997), 283 Mont. 413, 420, 942 P.2d 100, 105 (stating that the preservation of Montana's wildlife resources is a duty entrusted to FWP through its regulation of the game farm industry). In contrast, DOL's primary function is to protect the livestock interests of the state from disease and to promote and foster a heathy livestock industry. See generally § 81-1-102(1), MCA. In the game farm context, DOL plays a critical role in the health, certification, and inspection of livestock. When disease is detected or suspected, DOL has the authority to either quarantine or monitor the diseased herd in order to protect other state livestock. While FWP is generally responsible for protecting Montana's native wildlife resources, DOL is primarily responsible for ensuring the health of domestic livestock. ¶ 19 Given the Wallaces' undisputed knowledge that the Big Velvet herd would be released into the wild on the Crow Indian Reservation and FWP's reasonable deduction that those elk may migrate back into Montana, we hold that FWP had concurrent jurisdiction to seek the permanent injunction granted in this case. Generally, FWP is entrusted with the duty of protecting Montana's native wildlife populations. To that end, FWP must ensure that captive alternative livestock and native wildlife populations are kept separate, in order to protect native populations from the introduction of feral populations, genetic pollution, competition for forage or habitat, and the spread of disease. ¶ 20 That underlying duty of FWP is illustrated by specific assignments of responsibility applicable to this case. To ensure alternative livestock confinement, FWP has the duty to enforce exterior fencing, and a supplemental duty to enforce fencing requirements. § 87-4-408(1), MCA. While DOL regulates internal game farm operations and facilities, the Legislature designated FWP as the appropriate state agency to ensure that alternative livestock are kept separate from native wildlife populations. Pursuant to that designation and to its rule-making authority provided in § 87-4-422(1), MCA, FWP has promulgated game-proof fencing requirements to protect against intermingling. See Rules 12.6.1531 through -1536, ARM. Based on FWP's jurisdiction over exterior fencing and FWP's knowledge that the Big Velvet herd would not be contained behind a game-proof fence upon delivery to the Crow Tribe, FWP had the jurisdictional authority to seek the permanent injunction to prevent the transfer. ¶ 21 The Wallaces note that the principle statute enumerating fencing and enclosure requirements, § 87-4-426, MCA (1999), was repealed by I-143. However, that statute was repealed because the fencing and enclosure requirements set forth in that section were to be considered in determining whether a new alternative livestock license should be issued, and I-143 prohibited the issuance of any new alternative livestock licenses. Therefore, there was no further need for § 87-4-426, MCA (1999). For those who were licensed under the former law, however, the fencing requirements were a condition to the issuance of their license and are as binding today as they were when the license was issued. ¶ 22 The second specific statutory basis for FWP's authority to act is its authority over all matters dealing with the importation, introduction and transplantation of wildlife. Section 87-5-711(1), MCA, provides: Control of importation for introduction and transplantation or introduction of wildlife. (1) Except as otherwise provided, the importation for introduction or the transplantation or introduction of any wildlife is prohibited unless the commission [FWP] determines, based upon scientific investigation and after public hearing, that a species of wildlife poses no threat of harm to native wildlife and plants or to agricultural production and that the transplantation or introduction of a species has significant public benefits. We interpret § 87-5-711(1), MCA, to mean that the introduction or transplantation of any wildlife, including game farm elk, into the wild requires FWP approval. The purpose behind that requirement was made explicitly clear by the Legislature in § 87-5-701, MCA: The legislature finds that in order to protect the native wildlife [of Montana] ... it is necessary to provide for the control of the importation for introduction and the transplantation or introduction of wildlife in the state. Serious threats, known and unknown, to the well-being of native wildlife... resulting from the introduction of wildlife into natural habitats, necessitate the prohibition of the importation for introduction and the transplantation or introduction of wildlife into natural habitats unless it can be shown that no harm will result from such transplantation or introduction. ¶ 23 The statutes cited above underscore the Legislature's resolve to protect the well-being of native wildlife. When native wildlife are threatened by the transplantation or introduction of wildlife, FWP has authority to act. That is what happened in this case. ¶ 24 The Wallaces respond that the Big Velvet herd was tested and determined to be tuberculosis-free, brucellosis-free, CWD-free, and genetically pure by a state veterinarian. Therefore, their argument follows that the herd posed no realistic threat to Montana's livestock, native deer and elk populations, or human health. We disagree for several reasons. ¶ 25 First, at present, there is no test for CWD in live animals. [1] Infected animals can only be conclusively tested for CWD after death. Such limitations on the testing for CWD were recently recognized by the Legislature. In May of 2000, prior to the passage of I-143, the Legislature imposed a moratorium on applications for new alternative livestock ranches until a test for CWD in living animals was developed and approved by DOL. See May 2000 Spec. Sess. L., Ch. 1 (Senate Bill 7). Passage of S.B. 7 was in part a response to the diagnosis of CWD at a Philipsburg game farm in October of 1999, [2] and the permanent, irreversible nature of the disease. To date, CWD has not been diagnosed in any of Montana's free-ranging cervid populations. ¶ 26 In this case, although 196 animals were tested in 1999 and 160 animals were tested in 2000, such tests are not conclusive that CWD does not exist within the Big Velvet herd. Furthermore, the record indicates that at least two Big Velvet elk recently died and that testing for CWD was not done following their deaths, as is customary. Taken together, these factors further limit DOL's ability to conclusively certify that the Big Velvet herd was CWD-free. ¶ 27 Second, the Wallaces claim that their elk are genetically pure based presumably on the elk-red deer hybridization test. However, the test for elk-red deer hybridization only assays for two phenotypic markers expressed through a red deer's genetic background, one for hemoglobin and one for transferring. These two markers are but two genes out of a larger genetic makeup of an individual animal. Therefore, the elk-red deer hybridization test cannot indicate genetic purity in elk. ¶ 28 Finally, the Wallaces themselves bragged about the genetic superiority of their elk in comparison to Montana's native elk. According to the Wallaces, Montana's wild herd has been transformed into a spooky, small antlered, non-bugling elk. Regardless of the merits of the Wallaces' contentions and without determining what desirable elk qualities are, such distinctions serve to underscore that there may be differences between captive elk and native elk, and the need for FWP to be diligent to protect the integrity of native populations. Therefore, we conclude that FWP properly asserted jurisdiction in this case. ¶ 29 Given FWP's jurisdiction, we must now determine whether the Wallaces violated any statutory duties imposed upon them as licensed game farm ranchers. We hold that while the Wallaces did comply with certain statutory obligations, they ignored others, and in the process violated Montana law. As a licensee, the Wallaces had a duty to dispose of their livestock in a manner which complied with the requirements of Title 87, Chapter 4, Part 4, MCA. Section § 87-4-414(2), MCA, provides that a licensee: [M]ay acquire, breed, grow, keep, pursue, handle, harvest, use, sell, or dispose of alternative livestock and their progeny in any quantity and at any time of year as long as the licensee complies with the requirements of this part, except that the licensee may not allow the shooting of game animals or alternative livestock, as defined in 87-2-101 or 87-4-406, or of any exotic big game species for a fee or other remuneration on an alternative livestock facility. [Emphasis added.] Therefore, the Wallaces had an express obligation to comply with each and every requirement under the statutory scheme regulating game farms. ¶ 30 The District Court based its decision to grant the permanent injunction on § 87-4-414(6), MCA. Specifically, § 87-4-414(6), MCA, provides in pertinent part: Alternative livestock must be lawfully acquired by the licensee. Alternative livestock may be kept only on a licensed alternative livestock ranch. A licensee who keeps alternative livestock owned by, leased to, or leased from another person shall comply with all of the requirements of this part as if the animal belonged to the licensee. [Emphasis added.] In this case, the Wallaces attempted to dispose of their alternative livestock to the Crow Indian Reservation, a destination they knew was not a licensed alternative livestock ranch. The Crow Tribe, in turn, intended to release the Big Velvet herd into the wild. Prior to the transfer, the Wallaces contacted FWP and asked under what conditions FWP would approve the transfer. Despite FWP's warning that the transfer would violate § 87-4-414(6), MCA, the Wallaces proceeded to ship the elk to the Reservation. With knowledge that the elk were destined for a location other than a licensed alternative ranch and for ultimate release into the wild, the District Court correctly concluded that the Wallaces violated their duty as licensees to act in accordance with the requirement of § 87-4-414(6), MCA. ¶ 31 The Wallaces' attempt to transfer their elk to a location without an appropriate game-proof fence also violated Montana law. See Rules 12.6.1531 through -1536, ARM. Not only was the destination unapproved, but the intent behind the destination was to release them into the wild. Because the Crow Tribe is bordered on three sides by the State of Montana, a distinct possibility existed that those elk would naturally migrate back into the State of Montana. Because the Wallaces knew that the Big Velvet herd would not be confined behind a game-proof fence, the Wallaces disposed of their elk in violation of the duty imposed on them by § 87-4-414(2), to abide by all applicable licensee regulations. ¶ 32 Finally, the Wallaces attempted to participate in a transaction whereby their elk herd would be released into the wild without FWP approval, in contravention of § 87-5-711, MCA. Before transplantation of wildlife into the wild is lawful, FWP must approve the introduction based on a determination that the species poses no threat of harm to native wildlife or has significant public benefits. The Wallaces failed to obtain FWP approval for transplantation. In fact, the Wallaces completely ignored FWP's response to their inquiry. Therefore, the Wallaces violated statutory law. ¶ 33 The statutes at issue in this case are not mere technicalities or unreasonable obstacles to private enterprise. They are essential to ensure the health and safety of Montana's natural wildlife population. They reflect the theory underlying environmental protection that being proactive rather than reactive is necessary to ensure that future generations enjoy both a healthy environment and the wildlife it supports. See generally MEIC v. Dept. of Environmental Quality, 1999 MT 248, ¶ 77, 296 Mont. 207, ¶ 77, 988 P.2d 1236, ¶ 77. ¶ 34 FWP had a statutory basis for jurisdiction over the Wallaces as licensees, and the Wallaces failed to comply with statutory limitations pertaining to the disposal of their game farm elk. For these reasons, we conclude that the District Court correctly enjoined the Wallaces from causing or allowing their alternative livestock herd to be transported to a location where they would be released into the wild and could migrate back into Montana.",issues
+145,2443080,1,5,"The Circuit Court erred in granting DRD's motion for summary judgment on the issue of Connor's conscious pain and suffering. We hold that eye witness testimony is not the sole means by which an evidentiary predicate may be laid from which a reasonable inference of conscious pain and suffering may be drawn. Expert testimony and case-specific facts may be sufficient grounds to submit the issue to the jury. We affirm the Court of Special Appeals in denying the motion to amend or alter the judgment, and upholding the statutory cap on non-economic damages. We reaffirm the constitutionality of the Cap as explicated in Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 and Oaks v. Connors, 339 Md. 24, 660 A.2d 423. In the present case, the Freeds have offered no evidence of a clear error, or a change in law or circumstances that would justify disregarding stare decisis and rendering the Cap unconstitutional. In our view, the Cap continues to serve a legitimate government purpose. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER AND CROSS-PETITIONERS TO DIVIDE THE COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS EQUALLY. MURPHY, J., Concurs and Dissents. MURPHY, J., concurring and dissenting. I agree that the Respondents' evidence was sufficient to support a finding that the deceased suffered conscious pain and suffering. I dissent, however, from the majority's refusal to require that the Cap be subjected to a heightened scrutiny analysis. For the reasons stated by Judge Chasanow in Murphy v. Edmonds, 325 Md. 342, 378-85, 601 A.2d 102, 120-123 (1992) (Chasanow, J., dissenting), I would vacate the judgment of the Court of Special Appeals and direct that the Circuit Court conduct further proceedings at which it shall apply the heightened scrutiny test to determine whether the Cap violates the equal protection guarantee embodied in Article 24 of the Maryland Declaration of Rights.",conclusion
+146,1707963,1,2,"Although neither of the parties objected to the jurisdiction of the Court of Appeals, it was the duty of the Court of Appeals to determine whether or not it had jurisdiction over the matter. Lack of subject matter jurisdiction may be raised sua sponte by a court. The parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties. Anderson v. HMO Nebraska, 244 Neb. 237, 505 N.W.2d 700 (1993). Whether a question is raised by the parties concerning jurisdiction of a lower court or tribunal, it is not only within the power but the duty of an appellate court to determine whether the appellate court has jurisdiction over the matter before it. In re Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905 (1992). There are three types of final orders which may be reviewed on appeal. Neb.Rev.Stat. §§ 25-1902 (Reissue 1989) and 25-1911 (Cum.Supp.1992). The three types are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered. Jarrett v. Eichler, 244 Neb. 310, 313, 506 N.W.2d 682, 684 (1993). To be a final order under the first type of reviewable order, an order must dispose of the whole merits of the case and must leave nothing for further consideration of the court, and thus, the order is final when no further action of the court is required to dispose of the pending cause; however, if the cause is retained for further action, the order is interlocutory. In re Interest of L.W., 241 Neb. 84, 486 N.W.2d 486 (1992). Moreover, if a party's substantial rights are not determined by the court's order and the cause is retained for further action, the order is not final for purposes of appeal. Larsen v. Ralston Bank, 236 Neb. 880, 464 N.W.2d 329 (1991).",jurisdiction
+147,2637387,1,1,[¶ 2] Mr. Griswold presents the following issue: Did the court err in denying Appellant's motion for a new trial based on new evidence? The State rephrases the issue as: Whether the district court properly denied Appellant's motion for a new trial.,issues
+148,2331454,2,4,"[¶ 29] Merchant's only significant sufficiency of the evidence contention relates to his assertion that the evidence is insufficient to support both kidnapping convictions. The kidnapping statute, 17-A M.R.S.A. §§ 301(1)(A)(3), (4), states in pertinent part: 1. A person is guilty of kidnapping if... A. He knowingly restrains another person with the intent to . . . . (3) inflict bodily injury upon him or subject him-to conduct defined as criminal in chapter 11; [the sex crimes chapter] (4) terrorize him or a 3rd person .... [7] [¶ 30] Here, the evidence was sufficient to support Merchant's conviction for two separate kidnapping events. The first occurred when Merchant physically restrained the seventeen-year-old girl by driving her miles down a back road and then physically assaulting her and committing sex crimes upon her. These actions violated section 301(1)(A)(3). A separate kidnapping event occurred when, after Merchant had completed his sexual assault and had driven back out onto Route 1, he continued to restrain the victim by keeping her in his vehicle and not allowing her to dress for some time, and then terrorized her with threats of bodily injury and physical harm if she reported what had occurred. These actions violated section 301(1)(A)(4). Thus, the evidence supports both kidnapping convictions as events that occurred at separate times and under differing circumstances. [¶ 31] Merchant's other contentions do not merit further discussion. The entry is: Judgments affirmed.",sufficiency of the evidence
+149,895824,1,1,"[¶ 2] Bill and Mary were married in 1977. They have two sons, born in 1980 and 1983. The marriage was turbulent and, on at least two occasions, Bill physically abused Mary. [¶ 3] When they were married, Bill practiced in a law firm started by his father, and Mary worked as a secretary for Bill. Bill later opened his own practice. Mary earned degrees in Spanish and secondary education and, at the time of the divorce, was teaching Spanish at Dickinson State University. [¶ 4] Mary sued Bill for divorce. The trial court divided the marital property and ordered Bill to pay $100 per month in permanent spousal support and $5,000 for Mary's attorney fees. The court ordered joint legal custody of the children, but placed primary physical custody with Mary. Bill was given visitation each Wednesday evening, every weekend except one each month, and nearly seven weeks during the summer. Mary was given ultimate authority to decide educational matters affecting the children, while Bill had ultimate authority to decide non-emergency medical matters.",facts
+150,1058293,2,1,"Carroll argues that the circuit court erred in holding that it did not have jurisdiction over his habeas corpus claim because a credit of 288 days against his Virginia sentence would not result in his immediate release from detention. Carroll contends that an immediate release from detention is not required for habeas corpus jurisdiction. According to Carroll, habeas corpus jurisdiction should lie when the relief sought will directly impact the duration of the petitioner's custody or incarceration. The Commonwealth agrees with Carroll on this issue. The Commonwealth further asserts that the viability of the immediate release rule, as established in McDorman v. Smyth, 187 Va. 522, 525, 47 S.E.2d 441, 443 (1948), is called into question in light of subsequent statutory amendments, United States Supreme Court decisions, and decisions of this Court. The Commonwealth contends this Court should find habeas corpus jurisdiction is available where the effect of an order entered in the petitioner's favor will result in shortening time the petitioner must serve in confinement. In McDorman, this Court adopted the immediate release rule, which provides that habeas corpus jurisdiction lies only where the release of the petitioner from his immediate detention will follow as a result of a judgment in his favor. We stated: Habeas corpus is a writ of inquiry granted to determine whether a person is detained without lawful authority. Virginia Code, 1942 (Michie), section 5848. It is available only where the release of the prisoner from his immediate detention will follow as a result of an order in his favor. It is not available to secure a judicial determination of any question which, even if determined in the prisoner's favor, could not affect the lawfulness of his immediate custody and detention. It cannot be used to modify or revise a judgment of conviction. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 [(1934)]. Id. at 525, 47 S.E.2d at 443-44 (emphasis added). When McDorman was decided, VDOC calculated service of individual sentences seriatim, and McDorman, who was serving a series of sentences, contended that some of his sentences, which were to take effect at the expiration of his current sentence, were invalid. Id. at 523-25, 47 S.E.2d at 443. We determined that the sentence McDorman was currently serving at the time of the petition was valid, and dismissed his petition because even a successful claim against sentences he had not yet begun serving would not result in his immediate release. Id. at 529, 525, 47 S.E.2d at 445, 443. Subsequent to McDorman, the scope of the writ of habeas corpus was expanded. Current Code § 8.01-654(B)(3) provides that a petitioner may allege detention without lawful authority through challenge to a conviction, although the sentence imposed for such conviction is suspended or is to be served subsequently to the sentence currently being served by petitioner. Pursuant to the current statutory authority, a defendant in the same situation as McDorman could challenge a conviction that he had not yet begun to serve, even though a successful challenge would not result in his immediate release. Recently, we found jurisdiction to grant a writ of habeas corpus for a defendant to challenge one of two concurrent sentences on two manslaughter convictions. West v. Director, Dep't of Corrs., 273 Va. 56, 639 S.E.2d 190 (2007). We stated that our decision would result in his release from immediate detention on that conviction and sentence, which complied with the purpose and scope of the writ of habeas corpus, which is to test the legality of a prisoner's detention. Id. at 66, 639 S.E.2d at 197. When this Court decided McDorman, we specifically relied on the United States Supreme Court's decision in McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), in adopting the immediate release rule. However, the immediate release rule has since been called into question because the McNally decision was overruled by the Supreme Court in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). In Peyton, the Supreme Court stated: [T]o the extent that McNally relied on the notion that immediate physical release was the only remedy under the federal writ of habeas corpus, it finds no support in the statute and has been rejected by this Court in subsequent decisions. We overrule McNally and hold that a prisoner serving consecutive sentences is in custody under any one of them for purposes of [28 U.S.C.] § 2241(c)(3). This interpretation is consistent with the statutory language and with the purpose of the writ of habeas corpus in the federal courts. Id. at 67, 88 S.Ct. 1549. In Peyton, the Supreme Court noted several practical reasons for abrogating the immediate release rule, including the advantage in having the trial court resolve factual disputes and the detriment to the petitioner of possible confinement in excess of his lawful sentence if he is required to wait until almost the end of that sentence to litigate his complaint: Clearly, to the extent that the rule of McNally postpones plenary consideration of issues by the district courts, it undermines the character of the writ of habeas corpus as the instrument for resolving fact issues not adequately developed in the original proceedings. . . . . But the prematurity rule of McNally in many instances extends without practical justification the time a prisoner entitled to release must remain in confinement.... [E]ach day they are incarcerated under those convictions while their cases are in the courts will be time that they might properly have enjoyed as free men. Id. at 63-64, 88 S.Ct. 1549. The Supreme Court's decision in Peyton was based on historical use of the writ of habeas corpus under common law and the language of the federal habeas corpus statute, 28 U.S.C. § 2241(c)(3) (2006 & Supp. I 2007). [3] In Peyton, the Supreme Court held that a petitioner serving consecutive sentences is in custody under any of the sentences for purposes of the federal habeas corpus statute. For additional support, the Supreme Court further noted that [s]ince 1874, the habeas corpus statute has directed the courts to determine the facts and dispose of the case summarily, `as law and justice require.' Id. at 66-67, 88 S.Ct. 1549 (citation omitted). A few years after Peyton was decided, in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court again addressed whether federal habeas corpus was the appropriate remedy when an order entered in the petitioner's favor would not result in his immediate release. The Court concluded: Even if the restoration of the respondents' credits would not have resulted in their immediate release, but only in shortening the length of their actual confinement in prison, habeas corpus would have been their appropriate remedy. For recent cases have established that habeas corpus relief is not limited to immediate release from illegal custody, but that the writ is available as well to attack future confinement and obtain future releases. Id. at 487, 93 S.Ct. 1827 (emphasis added). The Supreme Court's decisions in Peyton and Preiser strongly support the argument that the immediate release rule requiring immediate release from detention should be abrogated in Virginia. We agree with the parties that the immediate release rule as established in McDorman needs to be readdressed in light of statutory changes and subsequent United States Supreme Court authority. We, therefore, overrule McDorman to the extent that habeas corpus jurisdiction is predicated upon an immediate release from detention. A reversal of McDorman is not only predicated by the language of Code § 8.01-654(B)(3), but also by the practical and fairness considerations expressed by the Supreme Court in Peyton and Preiser. Circuit courts are well suited to resolve factual disputes related to convictions and sentences. Furthermore, it is obvious that factual disputes of this nature are more accurately resolved when the events are fresh and memories clear. Moreover, there is nothing in our habeas corpus jurisprudence which requires a petitioner to wait so long to pursue this remedy that he or she is at peril of being required to serve a sentence longer than his or her lawful sentence while his or her dispute is being resolved. The holding of McDorman also relies on an unnecessarily narrow interpretation of Virginia's habeas corpus statute. Code § 8.01-654(A)(1) provides: The writ of habeas corpus ad subjiciendum shall be granted forthwith by the Supreme Court or any circuit court, to any person who shall apply for the same by petition, showing by affidavits or other evidence probable cause to believe that he is detained without lawful authority. (Emphasis added.) The statute extends the availability of the writ of habeas corpus to prisoners who claim they are detained without lawful authority. In interpreting this language, we are guided by the principle of statutory construction that remedial statutes are to be construed liberally. Greenberg v. Commonwealth, 255 Va. 594, 600, 499 S.E.2d 266, 269 (1998). Additionally, we must consider the ordinary and plain meaning of statutory terms. Winborne v. Virginia Lottery, 278 Va. 142, 148, 677 S.E.2d 304, 306 (2009). So viewed, the statutory phrase detained without lawful authority does not limit the availability of a writ of habeas corpus to situations in which a result in the petitioner's favor will result in his or her immediate release. Rather, Code § 8.01-654(A)(1) allows a petitioner to challenge the lawfulness of the entire duration of his or her detention so long as an order entered in the petitioner's favor will result in a court order that, on its face and standing alone, will directly impact the duration of the petitioner's confinement. Here, Carroll is detained for 13 years pursuant to his sentencing order, which includes the 288 days for which he is seeking credit. Thus, Carroll is detained without lawful authority within the meaning of the statute if his sentence, including the 288 days for which he seeks credit, is imposed without lawful authority. Based on Carroll's claim, an order entered in his favor would result in a court order that, on its face and as a matter of law, would directly impact the duration of Carroll's imprisonment by shortening his sentence by 288 days. Therefore, the circuit court erred in holding that it did not have habeas corpus jurisdiction to entertain Carroll's claim. Just as the Supreme Court in Peyton decided that the language in custody in the federal habeas corpus statute does not impose an immediate release rule, 391 U.S. at 67, 88 S.Ct. 1549, the language detained without lawful authority in Code § 8.01-654(A)(1) does not impose an immediate release rule in the Virginia system. Our interpretation of Code § 8.01-654(A)(1) also assures that [m]eaningful factual hearings on alleged constitutional deprivations can be conducted before memories and records grow stale, and at least one class of prisoners will have the opportunity to challenge defective convictions and obtain relief without having to spend unwarranted months or years in prison. Peyton, 391 U.S. at 65, 88 S.Ct. 1549. Our decision today does not dramatically expand habeas corpus jurisdiction. Our holding only concerns cases in which an order, entered in the petitioner's favor, interpreting a conviction or a sentence, will, as a matter of law and standing alone, directly impact the duration of a petitioner's confinement. Our holding does not extend habeas corpus jurisdiction to cases in which an order entered in the petitioner's favor will only give rise to a possibility of reducing the petitioner's term of imprisonment. Thus, disputes which only tangentially affect an inmate's confinement, such as prison classification issues concerning the rate at which a prisoner earns good conduct or sentence credits, or challenges to parole board decisions, are not proper matters for habeas corpus jurisdiction because an order entered in the petitioner's favor in those cases will not result in an order interpreting convictions or sentences that, on its face and standing alone, will directly impact the duration of the petitioner's sentence. See Virginia Parole Board v. Wilkins, 255 Va. 419, 420-21, 498 S.E.2d 695, 695 (1998) (while relying on the immediate release rule, we held the circuit court did not have habeas corpus jurisdiction over petitioner's challenge to the Parole Board's denial of discretionary parole and a two year deferral of the next parole review).",jurisdiction
+151,4514105,1,3,"
+We review a circuit court’s grant or denial of summary judgment de novo. Querubin v. Thronas, 107 Hawaii 48, 56, 109 P.3d 689, 697 (2005) (citing Hawaii Cmty. Fed. Credit Union v. Keka, 94 Hawaii 213, 221, 11 P.3d 1, 9 (2000)).
+“The interpretation of a statute is a question of law reviewable de novo.” Peer News LLC v. City & Cty. of Honolulu, 138 Hawaii 53, 60, 376 P.3d 1, 8 (2016).",standard of review
+152,2196479,1,3,"There are two aspects to the prisoner's claim that this court lacks jurisdiction to entertain the Attorney General's motion: the contention that no court possesses jurisdiction to set successive execution dates and the position that even if such jurisdiction exists, this court has surrendered its jurisdiction to the district court. Whether jurisdiction exists to entertain the Attorney General's motion in turn breaks down into two questions: whether there is a statutory basis for such jurisdiction and whether there is any other basis for such jurisdiction. Because the Legislature has addressed the setting of execution dates in several statutes, we initially turn to those enactments for guidance in determining whether, upon appeal to this court, an execution date is properly set by this or the original sentencing court. Neb.Rev.Stat. § 29-2543 (Supp.1993) provides: Whenever any person has been tried and convicted before any district court in this state of a crime punishable by death and under the conviction has been sentenced by the court to suffer death, it shall be the duty of the clerk of the court before which the conviction was had to issue a warrant, under the seal of the court, reciting therein the conviction and sentence directed to the warden of the Nebraska Penal and Correctional Complex, commanding him or her to proceed at the time named in the sentence to carry the same into execution.... However, Neb.Rev.Stat. § 29-2525 (Reissue 1989) grants a prisoner convicted and sentenced to death an automatic appeal to this court, during which time Neb. Const. art. I, § 23, stays execution of the sentence until further order of this court. See State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977), cert. denied 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158, reh'g denied 434 U.S. 961, 98 S.Ct. 496, 54 L.Ed.2d 322. Neb.Rev.Stat. § 29-2528 (Reissue 1989) further provides that after consideration of the appeal, this court shall order the prisoner to be discharged, a new trial to be had, or appoint a day certain for the execution of the sentence. Accordingly, there is no question that this court has the statutory jurisdiction to set an execution date once it has considered the prisoner's automatic appeal and determined that death is the legally appropriate sentence. Neither is there any basis for an argument that no state court has the jurisdiction to reset an execution date once the initial date set has passed. Without regard to who has the duty of fixing the date, the failure to execute a death warrant on the original date fixed does not result in the discharge of a prisoner sentenced to die, but requires the court to fix a new date for the execution. In Iron Bear v. Jones, 149 Neb. 651, 658, 32 N.W.2d 125, 129 (1948), we said, `Where a defendant in a criminal action has been legally sentenced to death and has not been executed at the time fixed in the death warrant, he is not entitled to be discharged... but a new date for the execution may be fixed by the proper court.' See, Simmons v. Fenton, 113 Neb. 768, 205 N.W. 296 (1925); State v. Miller, 169 Kan. 1, 217 P.2d 287 (1950). The question, then, is whether this court has the statutory jurisdiction to set a new execution date upon the expiration of an earlier date it had set and to issue a warrant thereon. In these regards, the statutes are not entirely clear. Neb.Rev.Stat. § 29-2544 (Reissue 1989), without giving direction as to who is to issue the document, provides that upon receipt of a death warrant fixing the execution date, the warden of the Nebraska Penal and Correctional Complex shall proceed at the time named in the warrant to carry out the sentence. In addition, Neb.Rev.Stat. § 29-2545 (Reissue 1989) provides that if a writ of error is granted and execution of the proceedings is suspended, this court may thereafter issue a warrant commanding the warden to carry the sentence into execution at the time stated therein. However, with the exception of coram nobis, the 1972 amendment of Neb. Const. art. I, § 23, abolished writs of error and instead provided for review by appeal to this court. In re Contempt of Liles, 217 Neb. 414, 349 N.W.2d 377 (1984); State v. Longmore, 178 Neb. 509, 134 N.W.2d 66 (1965) (Legislature abolished writ of error in 1961). It is true that where the language of a statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language. State v. Palmer, 215 Neb. 273, 338 N.W.2d 281 (1983), cert. denied 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). But when the language used in a statute requires interpretation or may reasonably be considered ambiguous, the statute is open to construction. Coleman v. Chadron State College, 237 Neb. 491, 466 N.W.2d 526 (1991). Although a penal statute must be strictly construed, it is to be given a sensible construction, and general terms are to be limited in their construction and application so as to avoid injustice, oppression, or an absurd consequence. See, State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1993); State v. Pierson, 239 Neb. 350, 476 N.W.2d 544 (1991). Further, in construing a statute, an appellate court must look at the statutory objective to be accomplished, problem to be remedied, or purpose to be served, and then place on the statute a reasonable construction which best achieves its purpose, rather than a construction which will defeat the purpose. Saulsbury, supra; State v. Seaman, 237 Neb. 916, 468 N.W.2d 121 (1991). In construing a statute, the court must attempt to give effect to all of its parts, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless; it is not within the province of the court to read anything plain, direct, and unambiguous out of the statute. State ex rel. Grams v. Beach, 243 Neb. 126, 498 N.W.2d 83 (1993). The language of a statute is to be considered in its plain, ordinary, and popular sense. Arizona Motor Speedway v. Hoppe, 244 Neb. 316, 506 N.W.2d 699 (1993); State ex rel. Grams, supra . Moreover, a series or collection of statutes pertaining to a certain subject matter, statutory components of acts which are in pari materia, 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. AMISUB v. Board of Cty. Comrs. of Douglas Cty., 244 Neb. 657, 508 N.W.2d 827 (1993); Arizona Motor Speedway, supra ; State v. Escamilla, 237 Neb. 647, 467 N.W.2d 59 (1991). Furthermore, in construing a statute, the legislative intention is to be determined from a general consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found, and the intent as deduced from the whole will prevail over that of a particular part considered separately. Neumeyer v. Omaha Public Power Dist., 188 Neb. 516, 198 N.W.2d 80 (1972). By the time of the enactment of § 29-2545, the Legislature had already abolished most writs of error and provided that appeals under the criminal code would be the same as for civil cases. See Longmore, supra . We must therefore conclude that when read with the legislative purpose in mind, § 29-2545 grants this court jurisdiction to set an execution date and issue a warrant upon completion of an appeal. Thus, when the foregoing statutes are read conjunctively, they provide that after appeal, this court sets an execution date. Further, under the provisions of §§ 29-2543 and 29-2545, this court has jurisdiction to set successive execution dates and issue warrants as may be needed to carry out the sentence. In point of fact, this court has in the past set execution dates and issued death warrants in at least 14 appeals. Some of these cases involved setting execution dates numerous times during the appeal and postconviction process. E.g., State v. Anderson, S-42301; State v. Harper, S-43070; State v. Hochstein, S-42302; State v. Holtan, S-40638; State v. Joubert, S-84-842; State v. Moore, S-43557; State v. Otey, S-42204; State v. Palmer , S-84-733; State v. Perry, S-40967; State v. Reeves, S-81-706; State v. Rust, S-40451; State v. Ryan, S-86-946; State v. Victor, S-88-982; State v. Williams, S-42235. And in Otey v. State, 240 Neb. 813, 485 N.W.2d 153 (1992), we instructed that as this court had issued the death warrant which had been stayed, further application for a death warrant should be filed with this court. Generally, where a statute has been judicially construed and that construction has not evoked amendment, it will be presumed that the Legislature has acquiesced in the court's determination of its intent. Erspamer Advertising Co. v. Dept. of Labor, 214 Neb. 68, 333 N.W.2d 646 (1983). See, also, State, ex rel. Case Threshing Machine Co., v. Marsh, 117 Neb. 832, 223 N.W. 126 (1929); State, ex rel. Village of Dakota City, v. Bryan, 112 Neb. 692, 200 N.W. 870 (1924); State, ex rel. Western Bridge & Construction Co., v. Marsh, 111 Neb. 185, 196 N.W. 130 (1923); Douglas County v. Vinsonhaler, 82 Neb. 810, 118 N.W. 1058 (1908) (it is one of principles governing interpretation and construction of statutes that where meaning of statute is dubious, long usage is just medium by which to expound it). The contention that this court needs separate statutory or other authority to issue a death warrant in addition to the authority to set an execution date overlooks that the death warrant in this context is nothing more than an extension of the setting of a date. Thus, no separate authority to issue a warrant is required. See, State v. Armstrong, 45 Or. 25, 74 P. 1025 (1904) (once death warrant issued, subsequent death warrant not needed); Commonwealth v. Hill, 185 Pa. 385, 39 A. 1055 (1898); Hopkinson v. State, 704 P.2d 1323 (Wyo.1985), cert. denied 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 564. It should also be noted that even in the absence of such statutory jurisdiction, this court possesses the inherent judicial power to set successive execution dates and issue death warrants. The inherent judicial power of a court is that power which is essential to the court's existence, dignity, and functions. See In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265 (1937). Such power is not derived from legislative grant or specific constitutional provision, but from the very fact that this court has been created and charged by the Constitution with certain duties and responsibilities. See id. See, also, Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex.1979). Accordingly, the Legislature cannot limit the exercise of inherent judicial power, such being essential to the existence of the court and the orderly and efficient exercise of the administration of justice. Inherent judicial power exists in addition to the express grants of judicial power to each court and originates in the mandate of the Nebraska Constitution of the separation of powers between three coequal branches, or departments, of government. State, ex rel. Ralston, v. Turner, 141 Neb. 556, 4 N.W.2d 302 (1942). See, Neb. Const. art. II, § 1; Beard v. N.C. State Bar, 320 N.C. 126, 357 S.E.2d 694 (1987). In addressing the nature of inherent power of the courts in In re Integration of Nebraska State Bar Ass'n, we wrote: The Constitution does not, by any express grant, vest the power to define and regulate the practice of law in any of the three departments of government. In the absence of an express grant of this power to any one of the three departments, it must be exercised by the department to which it naturally belongs because It is a fundamental principle of constitutional law that each department of government, whether federal or state, `has, without any express grant, the inherent right to accomplish all objects naturally within the orbit of that department, not expressly limited by the fact of the existence of a similar power elsewhere or the express limitations in the Constitution.' ... (Emphasis in original.) 133 Neb. at 285, 275 N.W. at 266. The power arises from necessity where, in the absence of any previously established procedural rule, rights would be lost or the court would be unable to function. Cottle v. Superior Court (Oxnard Shores Co.), 3 Cal.App.4th 1367, 5 Cal.Rptr.2d 882 (1992). This court has recognized the inherent power of courts in many cases and circumstances, e.g., Christianson v. Educational Serv. Unit No. 16, 243 Neb. 553, 501 N.W.2d 281 (1993) (inherent power to dismiss action for disobedience of court order); Schuessler v. Benchmark Mktg. & Consulting, 243 Neb. 425, 500 N.W.2d 529 (1993) (courts inherently possess power to stay civil proceedings when required by interests of justice); In re Interest of D.A., 239 Neb. 264, 475 N.W.2d 511 (1991) (within inherent power of court to appoint guardian ad litem in absence of statutory requirements); State Farm Mut. Auto. Ins. Co. v. Royal Ins. Co., 222 Neb. 13, 382 N.W.2d 2 (1986) (allowance of attorney fees made pursuant to inherent power of court); Creager v. Creager, 219 Neb. 760, 366 N.W.2d 414 (1985) (inherent power to continue court's jurisdiction over alimony judgment to avoid inequitable results); Kirby v. Liska, 214 Neb. 356, 334 N.W.2d 179 (1983) (courts have authority to monitor and determine reasonableness of contingent fee contract under inherent power to regulate the bar); State ex rel. Partin v. Jensen, 203 Neb. 441, 279 N.W.2d 120 (1979) (inherent power of court may be exercised as to bail, although not specifically vested by statute); Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975) (inherent power to appoint counsel to represent indigent misdemeanant); Roach v. Roach, 192 Neb. 268, 220 N.W.2d 27 (1974) (court has inherent power to retain jurisdiction to determine amounts due and enforce its judgment); State, ex rel. Ralston, supra (inherent power to regulate conduct and qualifications of attorneys); and In re Integration of Nebraska State Bar Ass'n, supra (inherent power to promulgate rules providing for integration of bar of state). Through its inherent judicial power, this court has authority to do all things that are reasonably necessary for the proper administration of justice, whether any previous form of remedy has been granted or not. In re Integration of Nebraska State Bar Ass'n, supra . See, Kovarik, supra ; Beard, supra . A court that has jurisdiction to make a decision also has the power to enforce it by making such orders as are necessary to carry its judgment or decree into effect. State ex rel. Brubaker v. Pritchard, Judge, etc., 236 Ind. 222, 138 N.E.2d 233 (1956); State ex rel. Watkins v. Land and Timber Company, Limited, 106 La. 621, 31 So. 172 (1902); State ex rel. Martin v. Superior Court, 101 Wash. 81, 172 P. 257 (1918). Contra Dexter & Carpenter v. Kunglig Jarnvagsstyrelsen, 43 F.2d 705 (2d Cir.1930), cert. denied 282 U.S. 896, 51 S.Ct. 181, 75 L.Ed. 789 (1931). Neb. Const. art. V, § 2, vests this court with, among other things, such appellate jurisdiction as may be provided by law and requires that the judges of this court hear and determine all appeals involving capital cases. As noted earlier, § 29-2525 grants a prisoner sentenced to death an automatic appeal to this court, during which period the sentence is constitutionally stayed. Thus, the only question is whether the setting of successive execution dates is necessary to the administration of justice so as to fall within the scope of inherent powers. Courts in other jurisdictions have answered affirmatively, holding that setting an execution date is within the courts' inherent powers necessary to allow them to enforce their own judgments. State v. Miller, 169 Kan. 1, 217 P.2d 287 (1950) (once state supreme court affirmed death sentence on appeal and entered order setting execution date, was within court's inherent authority to enforce judgment and order); Williams v. Moore, 262 F.2d 335 (5th Cir.1959), cert. denied 360 U.S. 911, 79 S.Ct. 1297, 3 L.Ed.2d 1261. In Williams, much like the situation presented here, no statutory authority existed for the court to set a new date after the expiration of the stay. See, Upshaw v. State, 350 So.2d 1358 (Miss.1977) (inherent power of court to prescribe rules of procedure for cases involving death penalty); Beck v. State, 396 So.2d 645 (Ala.1980). The primary duty of the courts is the proper and efficient administration of justice. In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265 (1937). See, also, In Matter of Richards, 333 Mo. 907, 63 S.W.2d 672 (1933). Likewise, it is the duty of a court to see that justice is administered speedily, without delay, and legally, and in conformity to constitutional mandates. Knox County Council v. State ex rel. McCormick, 217 Ind. 493, 29 N.E.2d 405 (1940). See, People v. Felella, 131 Ill.2d 525, 137 Ill.Dec. 547, 546 N.E.2d 492 (1989) (judicial power includes adjudication and application of law, administration of courts, and imposition of criminal sentences); State v. Wilkins, 220 Kan. 735, 556 P.2d 424 (1976) (trial court has inherent power to enforce its own orders). Accordingly, this court has the inherent power, as well as the statutory power, to set successive execution dates and issue death warrants as the circumstances may dictate. It is urged, however, that once the mandate of this court issued, the court no longer retained jurisdiction; rather, jurisdiction was returned to the district court in order that it might enter judgment in accordance with the mandate. See, State v. Horr, 232 Neb. 380, 441 N.W.2d 139 (1989); Rehn v. Bingaman, 152 Neb. 171, 40 N.W.2d 673 (1950); State Bank of Beaver Crossing v. Mackley, 118 Neb. 734, 226 N.W. 318 (1929) (when some action was taken by district court upon mandate, that court acquired exclusive jurisdiction of cause). But Rehn notes that a ministerial act may be completed by this court even after its mandate is issued because such act in no way involves a reconsideration of the judicial determinations made. 152 Neb. at 177, 40 N.W.2d at 677 (award of costs which is part of judgment awarded could be corrected after issuance of mandate and without its recall and even after district court has taken action on mandate). See State v. Blankenfeld, 228 Neb. 611, 423 N.W.2d 479 (1988) (where county court's judgment and sentence appealed to district court and to this court, which remanded upon affirmance to district court, district court was not required to remand to county court for performance of ministerial task of enforcing order of this court). Because the setting of an execution date has been uniformly held to be a ministerial and not a judicial act, this court retains the authority to set an execution date. See, Pate v. State, 393 P.2d 247 (Okla.Crim. 1964); Ex parte Grayson, 86 Okla.Crim. 86, 187 P.2d 232 (1948); Rose v. Commonwealth, 189 Va. 771, 55 S.E.2d 33 (1949). See, also, Iron Bear v. Jones, 149 Neb. 651, 32 N.W.2d 125 (1948) (time designated by court for executing sentence of death is not part of sentence; it is simply order prescribing time when sentence shall take effect); In re Cross, 146 U.S. 271, 13 S.Ct. 109, 36 L.Ed. 969 (1892); Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218 (1892). It has long been settled that, `The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied.' Williams, 262 F.2d at 338 n. 4. See Anderson v. State, 267 So.2d 8 (Fla.1972) (where supreme court originally obtained jurisdiction of certain criminal cases because each was capital case, court would retain jurisdiction for all purposes until final disposition of case). Contra State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Crim.App.1974) (once criminal court of appeals has acquired jurisdiction, it is only by judgment of that court that jurisdiction over case is restored to lower court, which acquires jurisdiction of case only to see that judgment of criminal court of appeals is carried out). Thus, this court retains jurisdiction to set an execution date and issue a death warrant notwithstanding the issuance of a mandate to the inferior court. Moreover, in order for the inferior court to reacquire jurisdiction, it must take action on this court's mandate. Here, Neb. Rev.Stat. § 29-2522 (Reissue 1989) prevented the district court from setting an execution date until after the conclusion of the appeal provided for by section 29-2525. This court's mandate did not direct the district court to set an execution date, and we find nothing in the record which demonstrates that the district court undertook to do so. Consequently, the issuance of this court's mandate did not surrender its jurisdiction to the district court.",jurisdiction
+153,2765919,1,4,"When defendants assert public trial rights violations, they have the burden to show that a courtroom closure occurred. In this case, the trial judge made findings of fact that the courthouse was open at all times during Andy's trial and that the sign regarding courthouse hours did not deter the public from attending Andy's trial. Those findings of fact were supported by substantial evidence, including testimony by security officers. On this record, Andy has not shown that a closure occurred. We affirm his conviction. 13 State v. Andy No. 90567-3 WE CONCUR: ~YuMht-g. s~/~, 14",conclusion
+154,886036,1,6,"¶ 62 Did the District Court err in denying Anderson's counterclaim for tortious interference? ¶ 63 The District Court determined that Anderson did not establish a prima facie case that Grenfell tortiously interfered with Anderson's sublease. The District Court first noted that Anderson's claim for tortious interference in Count VI of his counterclaim stemmed solely from Grenfell's alleged interference in the contractual relationship between Anderson and Bice, wherein Grenfell sent to Bice a letter dated October 29, 1991, informing Bice that Anderson was in default on the lease and that Bice should thereafter remit payment on the sublease to himself rather than Anderson. The District Court further noted that Anderson, in his proposed findings and conclusions after remand, also alleged that Grenfell tortiously interfered with the contractual relations between he and Houldson. ¶ 64 In order to establish a prima facie case of interference with contractual or business relations, it must be shown that the defendant's acts (1) were intentional and willful, (2) were calculated to cause damage to the plaintiff in his or her business, (3) were done with the unlawful purpose of causing damage or loss, without right or justifiable cause on the part of the actor, and (4) that actual damages and loss resulted. Bolz v. Myers (1982), 200 Mont. 286, 295, 651 P.2d 606, 611 (citation omitted). ¶ 65 The District Court found that Grenfell's lockout on October 28 and the letter of October 29, 1991, were based upon a good faith belief that Anderson was in default on the lease agreement for failing to pay rent and utilities, and that Anderson was in breach of the agreement for failing to remedy his default within the ten-day cure period, which ended on October 27, 1991. This finding was predicated upon the District Court's conclusion that Grenfell held a good faith belief that his default notice of October 17, although unclaimed by Anderson, constituted effective notice of default. ¶ 66 Noting that Anderson terminated the sublease with Bice by written letter of October 24, 1991, the District Court concluded that any interference by Grenfell with the Anderson Bice sublease occurred subsequent to Anderson's termination of the subtenancy, and further, that any alleged willful interference by Grenfell was based upon a good faith belief that his notice was sufficient and that his actions were justified. ¶ 67 Likewise, the District Court similarly concluded that any interference by Grenfell with the Anderson-Houldson sublease was also based upon a good faith belief that his notice of default was sufficient, and that Grenfell's actions did not constitute intentionally unlawful and willful interference with the Anderson-Houldson sublease for the purpose of causing damages to Anderson. Thus, the District Court ultimately concluded that Anderson did not establish a prima facie case of tortious interference with contractual or business relations by Grenfell. ¶ 68 Anderson asserts that the District Court's conclusion is contrary to the law of the case as determined in Grenfell I, and that based upon the doctrine of res judicata, the District Court erred by effectively reversing this Court's decision in Grenfell I. Anderson points to the language in Grenfell I wherein we stated: We hold that Anderson has presented sufficient credible evidence to support his claim for damages.... Grenfell I, ¶ 58. Anderson argues that the sufficient, credible, and overwhelming evidence presented at trial supports his counterclaim for tortious interference, and that the District Court's conclusion to the contrary is error based upon the above language of this Court. ¶ 69 In the original action, the District Court concluded that Anderson was the initial and sole breaching party, received actual and constructive notice of default, did not present credible evidence to support his claim for damages against Grenfell, and it thus did not reach the merits of Anderson's claim for damages. On appeal, this Court in Grenfell I reversed a number of the District Court's conclusions of law, including its conclusions that Anderson received actual or constructive notice of default prior to Grenfell's lockout, and remanded to the District Court for further consideration of Anderson's claims in light of our holding. See Grenfell I, ¶¶ 35, 44-46, 58-59. Reviewing evidence presented by Anderson, we stated: We conclude that Anderson, contrary to the District Court's conclusion, has presented credible evidence to support his claim for lost profits. Whether Grenfell is in fact liable for damages under any of Anderson's claims, as well as whether he could have foreseen Anderson's lost profits at the time their lease was made, are matters that should be addressed upon remand. Grenfell I, ¶ 64. ¶ 70 Decidedly, this Court did not make any ruling on the merits of Anderson's counterclaims against Grenfell, but merely reversed the conclusion of the District Court that Anderson presented no credible evidence to support his alleged claims. We remanded precisely for a determination on the merits whether Grenfell was, in fact, liable under any of Anderson's claims. Thus, we do not find Anderson's argument compelling that the District Court was bound by the doctrine of res judicata to find that Anderson had prevailed on the merits of his counterclaim alleging that Grenfell was guilty of tortious interference with Anderson's contractual or business relationships with either Bice or Houldson. ¶ 71 The fulcrum of the District Court's denial of Anderson's claim for tortious interference is the following: (1) The claim, as written, was based on the sublease between Anderson and Rick Bice; (2) Anderson terminated the sublease with Bice in a written letter of October 24, 1991; (3) Grenfell's alleged willful interference with this sublease agreement came after Anderson's letter terminating the Anderson Bice subtenancy; and finally (4), Grenfell's act of changing the locks on October 28, 1991, was done on the good faith belief that he had given proper notice of default and that Anderson was in breach of the lease agreement. The District Court thus concluded that Grenfell could not have tortiously interfered with the Anderson Bice sublease, as the sublease was terminated prior to Grenfell's lockout, nor did any willful interference occur with the Anderson Houldson sublease, as Grenfell believed, in good faith, that his lockout of Anderson was done with right and justification on his part. ¶ 72 Anderson cites extensively to portions of the trial transcript and much of his own testimony as evidence that Grenfell attempted to interfere with the Anderson Bice sublease on various occasions prior to October 24, 1991, citing to a dispute regarding Grenfell's alleged refusal to fix the air conditioning and to a dispute regarding Grenfell's claim of entitlement to reimbursement from Bice for work performed on the premises. ¶ 73 In considering this evidence, the District Court found that Grenfell admitted to conferring with Bice around the time of default regarding Bice taking over the entire premises and thereafter remitting the rent to Grenfell instead of Anderson. The District Court found, however, that Grenfell and Bice did not enter into a lease agreement until after Grenfell terminated the agreement with Anderson, and that Grenfell could not have thus willfully interfered. ¶ 74 This Court will not set aside a district court's findings of fact unless they are clearly erroneous, and we give due regard to the opportunity of the district court to judge the credibility of witnesses. Rule 52(a), M.R.Civ.P.; Tungsten Holdings, Inc. v. Olson, 2002 MT 158, ¶ 13, 310 Mont. 374, ¶ 13, 50 P.3d 1086, ¶ 13; Grenfell I, ¶ 24. A district court's findings are clearly erroneous if they are not supported by substantial credible evidence, if the trial court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with a definite and firm conviction that a mistake has been committed. Tungsten, ¶ 13; Grenfell I, ¶ 24 (citation omitted). Additionally, in determining whether a district court's findings are supported by substantial evidence, this Court must view the evidence in the light most favorable to the prevailing party. Grenfell I, ¶ 24 (citation omitted). ¶ 75 Upon review of the record and viewing the evidence in a light most favorable to Grenfell on Anderson's counterclaim of tortious interference with business or contractual relations, we conclude that the District Court did not err in finding that Anderson terminated the Anderson Bice sublease prior to any alleged tortious interference by Grenfell, nor did it err in finding that Grenfell terminated the lease agreement based upon a good faith belief that Anderson was in breach of the agreement. The District Court, therefore, did not err when it concluded that Anderson did not establish a prima facie case of tortious interference of business or contractual relations on either sublease. ¶ 76 The District Court's decision is affirmed accordingly.",issues
+155,6340535,1,5,"[8] It is the duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. 22 No party challenges this court’s jurisdiction, and we agree that the appeal is properly before us. It is a rare occasion when a case involving a special proceeding under § 32-624 (or its predecessor statute) comes before this court 23 in contrast with a single justice of this court. But the infrequency is likely driven by the small window of time to seek review rather than a perceived lack of jurisdiction. As we explained in dismissing the appeal in Nebraska Republican Party v. Gale, 24 “no relief may be afforded to the party from [a judge’s] order after the 55th day” preceding the election. Here, the district court judge admirably resolved the matter quickly, leaving time for the aggrieved party to seek appellate review. Because in Nebraska Republican Party we recognized “uncertainty in our case law and orders of this court in appeals from such proceedings” and “assume[d] without deciding that subject matter jurisdiction does exist,” 25 we take this opportunity to resolve any jurisdictional uncertainty. [9,10] We start by recalling fundamental principles of our jurisdiction. Except in those cases wherein original jurisdiction is specifically conferred by Neb. Const. art. V, § 2, the Nebraska Supreme Court exercises appellate jurisdiction. 26 In order for this court to have jurisdiction over an appeal, 22 North Star Mut. Ins. Co. v. Stewart, ante p. 33, ___ N.W.2d ___ (2022). 23 See, Nebraska Republican Party v. Gale, 283 Neb. 596, 812 N.W.2d 273 (2012); State, ex rel. Quinn, v. Marsh, 141 Neb. 436, 3 N.W.2d 892 (1942); Porter v. Flick, 60 Neb. 773, 84 N.W. 262 (1900). 24 Nebraska Republican Party v. Gale, supra note 23, 283 Neb. at 599, 812 N.W.2d at 276. 25 Id. at 599, 812 N.W.2d at 275. 26 Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017). - 172 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 appellate jurisdiction must be specifically provided by the Legislature. 27 In other words, unless a statute provides for an appeal, such right does not exist. 28 Section 32-624 authorizes a special, summary proceeding before a judge of the district court. When an objection to a candidate filing form is made and the filing officer has determined the validity of the objection, an application can be made to a judge of, among other identified courts, the district court. 29 The judge’s order “may be made summarily upon application of any political party committee or other interested party and upon such notice as the court or judge may require.” 30 In Porter v. Flick, 31 we addressed our appellate jurisdiction while construing a statute 32 similar to § 32-624. Although the precise language of some of the statutes and constitutional provisions has changed since this court’s decision in 1900, we find the analytical path in Porter to be instructive. [11] In Porter, we started with the presumption that the Legislature intended to enact a constitutional law. We explained that the law would be unconstitutional if it conferred upon the judiciary a nonjudicial power. We recognized that Neb. Const. art. II, § 1 (now art. II, § 1(1)), divides the powers of the government into three departments—legislative, executive, and judicial—and dictates that “no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution.” We stated that there was no express direction or permission that would make the power in the statute an exception to the general rule. 27 Id. 28 Id. 29 See § 32-624. 30 Id. 31 Porter v. Flick, supra note 23. 32 See Comp. Stat. 1899, ch. 26, § 137. - 173 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 In Porter, we determined that the power given by the statute similar to what is now § 32-624 was judicial in nature. We reasoned that the Legislature intended to give the judicial officers identified in the statute an authority that the judge might lawfully exercise. We further recognized that courts in other states with similar statutes had exercised a “revisory jurisdiction” over the decisions of ministerial officers charged with preparing the official ballot. 33 For the same reasons set out in Porter, we conclude that the order of the district court judge under § 32-624 was a judicial decision. [12] As a judicial decision, this court has the power to review the judge’s order under § 32-624. Under Neb. Const. art. V, § 23, “The several judges of the courts of record shall have such jurisdiction at chambers as may be provided by law.” That provision empowers the Legislature to confer power in chambers. While § 32-624 does not use the word “chambers” expressly, it impliedly does by referring to a judge. As to an appeal, Neb. Const. art. I, § 23, mandates “one appeal to the appellate court created pursuant to Article V, section 1, of this Constitution or to the Supreme Court” as a matter of right. In view of this provision, the intent of § 32-624 could not have been to exclude orders made in the special proceeding from appellate review. 34 Further, the Legislature has given this court “appellate and final jurisdiction of all matters of appeal and proceedings in error which may be taken from the judgments or decrees of other courts in all matters of law, fact, or equity.” 35 [13,14] Section 25-1911 authorizes appellate review of a “final order made by the district court.” The word “court” as used in § 25-1911 “has always been construed to mean, not only the tribunal over which a judge presides, but the judge 33 Porter v. Flick, supra note 23, 60 Neb. at 776, 84 N.W. at 263. 34 See State, ex rel. Meissner, v. McHugh, supra note 17. 35 Neb. Rev. Stat. § 24-204 (Reissue 2016). - 174 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 himself [or herself] when exercising, at chambers, judicial power conferred by statute.” 36 Jurisdiction of the appellate courts is further addressed in § 24-1106. Under § 24-1106(1), an appeal from a district court order in a case such as this would be to the Nebraska Court of Appeals. However, § 24-1106(3) specifies that “[c]ases may be removed from the Court of Appeals for decision by the Supreme Court for any one or more of the reasons set forth in subsection (2) of this section or in order to regulate the caseload existing in either the Court of Appeals or the Supreme Court.” At least two of the reasons contained in subsection (2) apply here: The case involves a novel legal question and is one of significant public interest. 37 Having concluded that we may exercise jurisdiction over this appeal, we turn to the substantive issues raised by the parties. Discovery The objectors argue that the district court erred in prohibiting discovery and holding that the proceeding under § 32-624 was limited to the record before the commissioner. Before resolving the issue, we dispose of an argument presented for the first time in briefing to this court. The objectors recognize that “the parties and the Court during the proceedings below assumed, based on past caselaw and the pre-filing deadline timing of the objection proceedings, that the jurisdictional deadline for relief under § 32-624 was March 16, 2022.” 38 Even the objectors’ March 3 notice of appeal requested “an expedited briefing and argument schedule in order for relief to be provided before the statutory jurisdictional deadline [of] March 16.” (Emphasis omitted.) But with the passing of the March 1 filing deadline and the absence 36 Porter v. Flick, supra note 23, 60 Neb. at 775, 84 N.W. at 262. 37 See § 24-1106(2)(a) and (e). 38 Brief for appellants at 38. - 175 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 of any other Democratic candidate for county attorney, they suggest that under Neb. Rev. Stat. § 32-811(1)(b) (Reissue 2016) “the deadline for relief under § 32-624 may actually be sometime in September.” 39 [15-17] There are at least three problems with the objectors’ newly asserted position. First, a party cannot complain of error which the party has invited the court to commit. 40 Having goaded the court into making its order on an expedited basis, the objectors cannot now contend that the court erred in doing so. Second, appellate courts do not generally consider arguments and theories raised for the first time on appeal. 41 Third, the objectors did not assign error concerning the court’s belief as to the deadline, and an appellate court does not consider errors which are argued but not assigned. 42 Seeing no error plainly evident from the record, 43 we decline the objectors’ invitation to find plain error and “remand[] for a threshold determination of the actual period for potential relief and further corresponding proceedings.” 44 The objectors argue that discovery is available in a special statutory proceeding. They direct our attention to Neb. Rev. Stat. § 25-2225 (Reissue 2016): Where, by general or special statute, a civil action, legal or equitable, is given and the mode of proceeding therein is prescribed, this code shall not affect the proceedings under such statute, until the Legislature shall otherwise provide; but in all such cases, as far as it may be consist­ ent with the statute giving such action, and practicable under this code, the proceedings shall be conducted in 39 Id. 40 Seid v. Seid, 310 Neb. 626, 967 N.W.2d 253 (2021). 41 In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018). 42 Moore v. Nebraska Acct. & Disclosure Comm., 310 Neb. 302, 965 N.W.2d 564 (2021). 43 See State v. Kipple, 310 Neb. 654, 968 N.W.2d 613 (2022). 44 Brief for appellants at 39. - 176 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 conformity thereto. Where the statute designates by name or otherwise the kind of action, but does not prescribe the mode of proceedings therein, such action shall be commenced and prosecuted in conformity to this code; where the statute gives an action, but does not designate the kind of action, or prescribe the mode of proceeding therein, such action shall be held to be the civil action of this code and proceeded in accordingly. The objectors emphasize the last sentence of the statute, contending that it provides authorization for discovery. The premise of the objectors’ argument is flawed. Their premise is that § 32-624 does not prescribe the mode of proceedings. But it does. Section 32-624 intended a limited statutory procedure. It provides that the court’s order “may be made summarily upon application.” 45 And when a statute prescribes the mode of proceeding, § 25-2225 provides that “this code shall not affect the proceedings under such statute.” A summary review proceeding is inconsistent with discovery. The primary purpose of the discovery process is to explore all available and properly discoverable information to narrow the fact issues in controversy so that a trial may be an efficient and economical resolution of a dispute. 46 A proceeding under § 32-624 is not a trial, and the issue is limited to the validity of a candidate filing form. In considering objections, the filing officer is not confined to mere formal matters relating to the certificate of nomination and may consider extrinsic evidence. 47 But “when presented to a judge or court, the proceeding, being in the nature of a summary review, is essentially appellate.” 48 And upon appellate review is not the proper place to make a record. 49 45 § 32-624. 46 Eddy v. Builders Supply Co., 304 Neb. 804, 937 N.W.2d 198 (2020). 47 State v. Allen, 43 Neb. 651, 62 N.W. 35 (1895). 48 State, ex rel. Brazda, v. Marsh, 141 Neb. 817, 822, 5 N.W.2d 206, 210 (1942). 49 See State v. Rust, 247 Neb. 503, 528 N.W.2d 320 (1995). - 177 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 [18] In overruling the discovery requests, the district court was mindful of the short timeframe it had to make a decision. It noted that after the objectors filed their application, only 34 days remained for “the final word” and that the objectors also wished to reserve some of that time for an appeal. We review the court’s ruling for an abuse of discretion. An abuse of dis­ cretion 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. 50 We find no abuse of discretion by the court in denying discovery. Meaning of “Practiced Law Actively” We now turn to the merits of the objection to Morfeld’s candidacy. The objectors asserted that he did not qualify under the language of § 23-1201.02(1). We disagree. [19] Before turning to statutory interpretation, we recall the rule of liberal construction regarding statutes relating to election law: “[I]t is the duty of the courts, in construing statutes providing for printing the names of candidates of both old and new political organiza­tions upon the ballot,” to do so in light of the constitutional principle that “all elections shall be free; and there shall be no hindrance or impediment to the right of the qualified voter to exercise the elective franchise.” 51 In other words, statutes relating to election law must be liberally construed so as to promote, rather than defeat, candidacy for the primary election. 52 [20,21] Statutory interpretation begins with the text, and the text is to be given its plain and ordinary meaning. 53 An 50 Lombardo v. Sedlacek, supra note 15. 51 Davis v. Gale, 299 Neb. 377, 381, 908 N.W.2d 618, 623 (2018), quoting Morrissey v. Wait, 92 Neb. 271, 138 N.W. 186 (1912); Neb. Const. art. I, § 22. 52 See Davis v. Gale, supra note 51. 53 State ex rel. Peterson v. Shively, 310 Neb. 1, 963 N.W.2d 508 (2021). - 178 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 a­ ppellate court will not resort to interpretation of statutory language to ascertain the meaning of words which are plain, direct, and unambiguous. 54 For the reader’s convenience, we again quote the statute: No person shall seek nomination . . . for the office of county attorney . . . , unless he or she has been admitted to the practice of law in this state for at least two years next preceding the date such person would take office and has practiced law actively in this state during such twoyear period . . . . 55 The objectors concede, as they must, that Morfeld was “admitted to the practice of law in this state” for the requisite period. They focus instead on the requirement that he had “practiced law actively” in Nebraska for such period. The parties agree that what Morfeld did during the period occurred in this state. They dispute, however, whether he “practiced law actively.” These three words join two concepts: (1) an activity, “practiced law,” and (2) a level of activity, “actively.” We view the objectors as disputing both. These three words have been in § 23-1201.02 since it was first adopted in 1969. 56 Regarding the meaning of “practiced law,” the objectors suggest that we should look to two rules of this court. One, relating to admission of attorneys, defines “[s]ubstantially engaged in the practice of law.” 57 The other, which is perhaps more helpful, defines “to practice law,” in the context of the unauthorized practice of law, as the “application of legal principles and judgment with regard to the circumstances or objectives of another entity or person which require the knowledge, 54 Id. 55 § 23-1201.02(1) (emphasis supplied). 56 See 1969 Neb. Laws, ch. 142, § 1, p. 664. 57 Neb. Ct. R. § 3-101(P) (rev. 2020). - 179 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 judgment, and skill of a person trained as a lawyer.” 58 This definition also includes a nonexclusive list of activities. 59 [22] But neither of these rules existed in this form in 1969, when the Legislature adopted the three key words of § 23-1201.02(1). Thus, we are reluctant to characterize those rules as demonstrative of the plain and ordinary meaning in 1969 of the words “practiced law actively.” The U.S. Supreme Court recently stated, “‘[I]t’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.”’” 60 Last year, we assumed without deciding that this proposition applied to the interpretation of a statute enacted by our Legislature. 61 We now decide that it does. Thus, it is a fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary meaning at the time the Legislature enacted the statute. We turn to contemporaneous sources for definitions, first for “practice law.” One general dictionary defined “practice” as “[t]o work at, especially as a profession: practice law.” 62 Another general dictionary defined “practice” as “to do or perform frequently, customarily, or habitually” or “to put into practice; to use one’s knowledge of; to work at, especially as a profession.” 63 A legal dictionary defined “practicing law” by reference to “practice of law,” which it defined as follows: Rendering the services peculiar to the profession. The work of an attorney at law in the preparation of pleadings and other papers incident to actions and special 58 Neb. Ct. R. § 3-1001. 59 See § 3-1001(A) to (E). 60 New Prime Inc. v. Oliveira, ___ U.S. ___, 139 S. Ct. 532, 539, 202 L. Ed. 2d 536 (2019). 61 See In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021). 62 The American Heritage Dictionary of the English Language 1028 (1969) (emphasis in original). 63 Webster’s New Twentieth Century Dictionary of the English Language, Unabridged 1413 (2d ed. 1956). - 180 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, the preparation of legal instruments of all kinds, and, in general, advising clients and taking action for them in matters connected with law. . . . Inclusive of counseling as well as trial work. . . . The giving of such advice or the rendition of such service as requires the use of any degree of legal knowledge or skill. 64 Another legal dictionary defined “practice of law” to mean: Not limited to appearing in court, or advising and assisting in the conduct of litigation, but embracing the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. . . . It embraces all advice to clients and all actions taken for them in matters connected with the law. 65 Next, we look to definitions regarding “actively.” A general dictionary defined “active” as “[e]ngaged in activity; contributing; participating . . .” or “[c]haracterized by energetic action or activity; busy.” 66 Another general dictionary described “actively” as “in an active manner; by action; nimbly; briskly.” 67 A legal dictionary defined “active” as “[t]hat is in action; that demands action; actually subsisting; the opposite of passive.” 68 The objectors observe that we defined the term “actively” in Hall v. Progress Pig, Inc. 69 and urge application of that definition here. The issue in Hall was whether a shareholder was 64 Ballentine’s Law Dictionary 972 (3d ed. 1969). 65 Black’s Law Dictionary 1335 (rev. 4th ed. 1968). 66 The American Heritage Dictionary of the English Language 13 (1969). 67 Webster’s New Twentieth Century Dictionary of the English Language, Unabridged 20 (2d ed. 1956). 68 Black’s Law Dictionary 52 (rev. 4th ed. 1968). 69 Hall v. Progress Pig, Inc., 259 Neb. 407, 610 N.W.2d 420 (2000). - 181 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 “actively engaged in the day-to-day labor and management of [a] farm.” 70 Breaking down that clause into its component parts, we stated that “the terms ‘actively engaged,’ ‘day to day,’ ‘labor,’ and ‘management’ should be given their most natural and obvious meaning.” 71 Consulting a dictionary, we defined “actively” to mean “‘constantly engaged.’” 72 We reasoned that “to be actively engaged in the day-to-day labor and management of the farm or ranch requires that such person be involved on a daily or routine basis in all aspects of the farm or ranch activities, be it labor or management.” 73 We conclude, as did the district court, that “actively” refers to the frequency or extent of involvement. [23] Returning to the phrase “practiced law actively,” we perceive no ambiguity in the use of these words. Putting the words together and giving them their plain and ordinary meanings, as used in § 23-1201.02(1), “practiced law actively” means engaged in giving advice or rendering such service as requires the use of any degree of legal knowledge or skill and doing so on a daily or routine basis. One can be engaged in the practice of law in a multitude of different ways. Considering Morfeld’s employment with Civic Nebraska in light of the plain and ordinary meaning of “practiced law actively,” we conclude it falls within the definition. His day-to-day activities, and not his title as “Executive Director,” drive our conclusion. In a sworn affidavit, Morfeld set out his employment activities. According to his affidavit, he provides legal advice, direction, and supervision to Civic Nebraska, on a routine basis, in a variety of areas. He stated that on a routine basis, he provides Civic Nebraska the type of legal advice that in-house 70 Id. at 415, 610 N.W.2d at 428. 71 Id. at 414, 610 N.W.2d at 427. 72 Id. at 414, 610 N.W.2d at 428. 73 Id. at 415, 610 N.W.2d at 428. - 182 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 counsel provides in other companies, including ongoing legal advice to Civic Nebraska regarding contracts, leases, nonprofit compliance, and matters of employment law. In connection with Morfeld’s employment, he routinely uses his legal knowledge and skill. And he is not giving legal advice to himself— he is providing counsel to an organization and its employees. In doing so, he practices law actively. To the extent the objectors’ argument could be understood to mean that an attorney employed as in-house counsel does not practice law because the attorney does not provide legal services to “clients,” we soundly reject it. [24] Because Morfeld’s providing legal advice on a routine basis regarding various matters to Civic Nebraska satisfies the “practiced law actively” requirement, we need not determine whether his activities with the ballot question committee or his service as a senator in the Legislature also constitute “practic[ing] law actively.” An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 74 [25] The objectors argue that the district court erred by interpreting “practiced law” to be determined by “the nature of the act” rather than “the forum or object of the act.” In making that determination, the district court relied on a case involving the unauthorized practice of law 75 and noted that we reaffirmed the broad definition of “practice of law” in a case decided 8 years prior to the enactment of § 23-1201.02. 76 As foreshadowed above based on the plain and ordinary meaning of practice of law, we agree with the district court that the nature of the activity is key. By advancing the notion that “the forum or object of the act” is controlling, it appears the objectors wish to have us read words into the statute that are not there. Neither is it 74 Schmid v. Simmons, ante p. 48, ___ N.W.2d ___ (2022). 75 State, ex rel. Johnson, v. Childe, 139 Neb. 91, 295 N.W. 381 (1941). 76 See State ex rel. Nebraska State Bar Assn. v. Butterfield, 172 Neb. 645, 111 N.W.2d 543 (1961). - 183 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 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. 77 Section 23-1201.02 contains no requirement that the attorney have courtroom litigation experience or that the practice be prosecutorial in nature. An individual who meets the qualification requirements of § 23-1201.02 is eligible to be a candidate for election as county attorney. The appropriate audience for a political party’s contention that a candidate’s expe­ rience is lacking and undeserving of a vote is the electorate.",jurisdiction
+156,2080469,1,2,"Defendant also contends that he is entitled to a new trial because the evidence was insufficient to warrant submission to the jury of the count charging him with first degree murder. He argues that the State failed to prove beyond a reasonable doubt the elements of deliberation, premeditation, and defendant's specific intent to commit murder, contending that the evidence shows only that he shot Harville on the spur of the moment in self defense and that his judgment was impaired to such a degree that he could not have formed the requisite specific intent. Due process requires that the State prove all the elements of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571 (1979). The jury is not, however, required to accept the defendant's version of the facts. State v. Pletka, 310 N.W.2d 525, 527 (Iowa 1981); State v. Hall, 214 N.W.2d 205, 210 (Iowa 1974). We have recently restated the principles to be followed in determining sufficiency of the evidence: We view the evidence in the light most favorable to the State; all inferences that are fairly and reasonably deducted from the evidence are accepted; and all the evidence, not just that supporting the verdict is considered. Furthermore, the verdict will be upheld if supported by substantial evidence, i.e., evidence which would convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Freie, 335 N.W.2d 169, 171 (Iowa 1983) (citations omitted). Applying those principles we find the evidence sufficient to support the jury's verdict of first degree murder in this case. Deliberation and premeditation may be shown by circumstantial evidence in one of three ways: (1) evidence of planning activity of the defendant which was directed toward the killing; (2) evidence of motive which might be inferred from prior relationships between defendant and the victim; and (3) evidence regarding the nature of the killing. State v. Freie, 335 N.W.2d at 172, quoting State v. Harrington, 284 N.W.2d 244, 247-48 (Iowa 1979). While there was little evidence of planned activity in this case, defendant did use his own revolver, unquestionably a deadly weapon, to kill the fiance of his former girlfriend after the barroom scuffle appeared to have ended. Premeditation and deliberation need not exist for any particular length of time. State v. Poyner, 306 N.W.2d 716, 718 (Iowa 1981); State v. Frazer, 267 N.W.2d 34, 39 (Iowa 1978); State v. Fryer, 226 N.W.2d 36, 41 (Iowa 1975). The jury could reasonably conclude from the evidence in this record that the defendant had a sufficient opportunity to weigh in his mind, contemplate, and consider the consequences before shooting Harville. State v. LeGear, 346 N.W.2d 21, 25 (Iowa 1984); State v. Poyner, 306 N.W.2d at 718; State v. Jackson, 251 Iowa 537, 545, 101 N.W.2d 731, 736 (1960). Several witnesses testified that after Harville removed his hand from defendant and the two men separated, the altercation was at an end. Witnesses testified that the men were several feet apart when the defendant pulled his gun out; before defendant fired the fatal bullets, he first shouted Harville's name twice and Harville turned to face him. We conclude that the record sufficiently established defendant's opportunity to premeditate and deliberate before firing bullets into Harville's body at close range. The jury could reasonably conclude from the evidence that defendant had formed the specific intent to kill Harville. When a person intentionally uses a deadly weapon in killing a victim, the jury may infer that he had formed the specific intent to kill. State v. Mulder, 313 N.W.2d 885, 888 (Iowa 1981); State v. Smith, 240 N.W.2d 693, 695 (Iowa 1976); State v. Hall, 214 N.W.2d 205, 210-11 (Iowa 1974). The effect of defendant's heavy drinking on formation of the requisite specific intent to kill was for the jury to determine. State v. Pletka, 310 N.W.2d at 529; State v. Winfun, 261 N.W.2d 484, 486 (Iowa 1978). The evidence viewed in the light most favorable to the verdict sufficiently established beyond a reasonable doubt all of the elements of first degree murder. Defendant is not entitled to a new trial. The defendant's conviction of first degree murder is affirmed. AFFIRMED.",sufficiency of the evidence
+157,2281884,1,1,"Ms. Gwen Marie Spicer (Appellant) appeals a judgment granting a motion to enforce settlement and ordering her to sign a consent order and judgment. Appellant argues, among other things, that the judgment should be vacated and that the initial judgment in the suit, which was set aside, should be reinstated. This Court finds that the initial judgment is the final judgment in this case. Because that judgment was not timely appealed, this Court must dismiss the appeal.",introduction
+158,1058393,1,3,"The trial court erred in denying Sunrise's motion to strike the breach of contract claim and in entering final judgment in favor of the Wrights. For the reasons stated, we will reverse the judgment of the trial court and enter final judgment in favor of Sunrise. Reversed and final judgment.",conclusion
+159,1953528,1,3,"A trial court's ruling on a motion to suppress is to be upheld unless its findings of fact are clearly erroneous. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996); State v. Veiman, 249 Neb. 875, 546 N.W.2d 785 (1996); State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994). Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996); State v. Sinsel, 249 Neb. 369, 543 N.W.2d 457 (1996); State v. Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996).",standard of review
+160,1443854,1,2,"The credibility and weight to be given evidence is in the province of the trier of fact, and the findings made by the trial judge will not be set aside unless clearly erroneous. Sun Valley Shamrock Resources, Inc. v. Travelers Leasing Corp., 118 Idaho 116, 118, 794 P.2d 1389, 1391 (1990); I.R.C.P. 52(a). This Court will uphold the trial court's findings of fact if supported by substantial and competent evidence. Ireland v. Ireland, 123 Idaho 955, 957-58, 855 P.2d 40, 42-43 (1993); In re Baby Boy Doe, 127 Idaho 452, 456, 902 P.2d 477, 481 (1995). On issues of law, this Court exercises free review. Ausman v. State, 124 Idaho 839, 841, 864 P.2d 1126, 1128 (1993).",standard of review
+161,2512015,1,10,"It has long been established: ``Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.' [Citation omitted.]' Troutman v. Curtis, 286 Kan. 452, 454-55, 185 P.3d 930 (2008) (quoting Nungesser v. Bryant, 283 Kan. 550, 566, 153 P.3d 1277 [2007]). Furthermore, K.S.A.2009 Supp. 60-256(f) provides the district court with discretion to deny a motion for summary judgment when discovery is needed. See Troutman, 286 Kan. at 458-59, 185 P.3d 930. An appellate court's standard of review of such a district court decision is for abuse of discretion. Troutman, 286 Kan. at 459, 185 P.3d 930. The summary judgment before us involves the interpretation and legal effect of a written instrument. These are matters of law, and an appellate court exercises unlimited review of a district judge's decision on the content and consequences of a written contract. City of Arkansas City v. Bruton, 284 Kan. 815, 828-29, 166 P.3d 992 (2007). The primary rule for interpreting written contracts is to ascertain the parties' intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction. Anderson v. Dillard's, Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007). An interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four corners. The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. [Citation omitted.] Johnson County Bank v. Ross, 28 Kan. App.2d 8, 10, 13 P.3d 351 (2000).",standard of review
+162,6324582,1,1,"[2] Generally, a trial court’s determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Brown, 310 Neb. 224, 964 N.W.2d 682 (2021).",standard of review
+163,2548102,1,4,"Because the trial court failed to instruct the jury that it had to agree on the same act or acts of hand-to-genital contact Ms. Celis-Garcia committed in finding her guilty of statutory sodomy, her right to a unanimous jury verdict was violated. The trial court's failure to properly instruct the jury constituted plain error. Accordingly, the judgment is reversed, and the case is remanded. All concur.",conclusion
+164,2803093,2,1,"The first issue raised by the Petitioner concerns whether the trial court erred in denying the Petitioner’s motion for a judgment of acquittal on the murder charge. The Petitioner argues that there was insufficient evidence of premeditation and malice. He contends that the State relied solely upon the testimony of his co-defendant to establish the Petitioner’s involvement in the crimes in this case. The Petitioner maintains that he was “added into the mix by Clayton S. Collins after the plea agreement” and that Collins’s version of what transpired does not show premeditation or malice. Conversely, the State 8 The Petitioner neither testified nor presented any witnesses on his behalf. 7 maintains that there was sufficient evidence offered to support the jury’s findings of premeditation and malice. The State contends that the Petitioner’s argument on this issue requires the Court to ignore Collins’s testimony. Additionally, the State maintains that despite the fact that Collins testified to the Petitioner’s involvement in the murder, and that this testimony was different from his earlier statements to police, Collins was subject to cross-examination and the defense was able to challenge his credibility before the jury. This Court applies the following standard of review to challenges concerning the sufficiency of the evidence: The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry 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 proved beyond a reasonable doubt. A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it 8 is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled. Syl. Pts. 1 and 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). The Petitioner focuses upon the alleged lack of evidence establishing two necessary elements to prove first degree murder – premeditation and malice. See State v. Horn, 232 W. Va. 32, 39, 750 S.E.2d 248, 255 (2013) (“To sustain a conviction for this category of first degree murder, it is essential that ‘the State produce [ ] evidence that the homicide was a result of malice . . . and was deliberate and premeditated [.]’ Syl. pt. 3, in part, State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982).”). Regarding proof of premeditation, we have previously held that [a]lthough premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. This means there must be an opportunity for some reflection on the intention to kill after it is formed. Guthrie, 194 W. Va. at 664, 461 S.E.2d at170, Syl. Pt. 5. Furthermore, [t]he duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent . . . is sufficient to support a conviction for first degree murder. Guthrie, 194 W. Va. at 664, 461 S.E.2d at 179, Syl. Pt. 6, in part. Finally, concerning the 9 element of malice, we have explained that “[m]alice may be inferred from the intentional use of a deadly weapon[.]” Syl. Pt. 2, in part, State v. Brant, 162 W. Va. 762, 252 S.E.2d 901 (1979); Syl. Pt. 3, State v. Toler, 129 W. Va. 575, 41 S.E.2d 850 (1946). The evidence at trial supports the jury’s determination that the elements of premeditation and malice were proven beyond a reasonable doubt. Premeditation was established by the evidence that after watching his co-defendant Collins’s beating of the victim in the head, the Petitioner picked up the wrench and struck the victim in the head several more times. The Petitioner’s conduct was sufficient evidence of a calculated, premeditated act under our law. Additionally, the use of a large wrench, and the evidence that the Petitioner continued to hit T.J. on the head9 while T.J. was sitting slumped on the couch after the initial attack by Collins, is sufficient evidence from which a jury could easily find malice. See Brant, 162 W. Va. at 762, 252 S.E.2d at 901, Syl. Pt. 2, in part. B. Disqualification of Prosecuting Attorney’s Office The next issue raised by the Petitioner concerns whether the trial court should have disqualified the Harrison County Prosecuting Attorney’s Office based upon the 9 As the chief medical examiner testified at trial, T.J. was struck in the head multiple times with such force that the result was “complex” fractures and depression of T.J.’s skull. Any of the blows, including those inflicted by the Petitioner, could have caused the victim’s death. 10 Petitioner’s assertion that assistant prosecuting attorney, Traci M. Cook, became a potential witness in the case during her trial preparation of potential witness, Crystal Kirkland, the Petitioner’s girlfriend. The State, however, argues that Ms. Kirkland’s change in her story during a pre-trial meeting with the assistant prosecutor is not a sufficient basis to disqualify the prosecutor’s office from the case. The salient facts regarding this issue are that Ms. Kirkland first gave a statement to police that the intent of Collins and the Petitioner was to beat up T.J. for stealing the Petitioner’s father’s computers. During trial preparation with Ms. Cook, Ms. Kirkland changed her story to include the Petitioner and Collins discussing their intent to kill T.J. The Petitioner filed a pre-trial motion to disqualify the prosecutor’s office. The Petitioner argued in his motion that “Crystal Kirkland is the only witness the State has that provides direct evidence of a conspiracy to murder the victim” and that Ms. Kirkland’s changing her statement was motivated by “her desire to avoid prosecution by cooperating with the State.” According to the Petitioner, Ms. Cook was an “essential witness as to the circumstances of the witness’[s] change of story.” The trial court denied the motion, finding that the witness’s change in her statement during questioning by Ms. Cook during trial preparations did not cause Ms. Cook to become a witness. Rather, the trial court found that the motion was premature and that the court would revisit the issue if Ms. Kirkland testified and if she testified in such a manner that Ms. Cook’s testimony was necessary for impeachment. 11 Subsequent to the trial court’s ruling, the State dismissed the conspiracy charge against the Petitioner; Ms. Kirkland was never called as a witness either by the State or by the Petitioner. The standard of review applicable to this Court’s review of a trial court’s refusal of a defendant’s motion to disqualify a prosecuting attorney is as follows: In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review. State v. Smith, 226 W. Va. 487, 491, 702 S.E.2d 619, 623 (2010) (quoting Syl. Pt. 2, Walker v. W. Va. Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997)). In syllabus point one of Smith, this Court held: “When an attorney is sought to be disqualified from representing his client because an opposing party desires to call the attorney as a witness, the motion for disqualification should not be granted unless the following factors can be met: First, it must be shown that the attorney will give evidence material to the determination of the issues being litigated; second, the evidence cannot be obtained elsewhere; and, third, the testimony is prejudicial or may be potentially prejudicial to the testifying attorney’s client.” Syllabus Point 3, Smithson v. U.S. Fidelity & Guaranty Company, 186 W. Va. 195, 411 S.E.2d 850 (1991). 226 W. Va. at 487, 702 S.E.2d at 619, Syl. Pt.1. 12 Succinctly stated, applying the law established by the Court in Smith to the instant matter, there is no merit to the Petitioner’s argument concerning this issue. The State dismissed the conspiracy charge and therefore did not call Ms. Kirkland as a witness. Further, there is no evidence as to how the defense was unable to call Ms. Kirkland because of the trial court’s ruling. The Petitioner simply failed to prove any of the three requisite factors set forth in Smith that must be met in order to disqualify an attorney. Id. Thus, the circuit court did not err in denying the Petitioner’s motion. C. Alleged Juror Misconduct The Petitioner’s next error is one of alleged juror misconduct. The Petitioner raises for the first time on appeal that the trial court committed plain error by failing to conduct an in camera hearing on whether there were any improper comments made by a juror, who was replaced by an alternate juror during deliberations, and by failing to order a mistrial on this issue. The State, in turn, maintains that the trial court did not commit plain error. Regarding this issue, a juror realized during the initial deliberations in this case that she had worked with the Petitioner’s ex-wife. The ex-wife’s name is now Ruby King, but the juror knew her as Ruby Murray. Once the juror recognized the relationship, she notified the trial court immediately. The Petitioner’s counsel requested the trial court, “out 13 of an abundance of caution,” to replace the juror. Specifically, the Petitioner’s counsel, after conferring with his client, stated: “Your Honor, it would be our opinion that it would be safest to excuse her and have the first alternate to serve.” The trial court granted the Petitioner’s request and instructed the jury to begin their deliberations anew. There was no objection or issue raised by the Petitioner’s counsel concerning conducting an in camera hearing and interviewing the remaining jurors to determine whether any of them had been prejudiced by any possible remarks by the excused juror. In the absence of any objection or issue raised before the trial court regarding the Petitioner’s alleged error involving the dismissed juror, the Petitioner asks the Court to review this alleged error under the plain error doctrine. As we held in syllabus point seven of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), “[t]o trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” “By its very nature, the plain error doctrine is reserved for only the most egregious errors.” State v. Adkins, 209 W. Va. 212, 215 n.3, 544 S.E.2d 914, 917 n.3 (2001). The Petitioner relies upon this Court’s decision in State v. Dellinger, 225 W. Va. 736, 696 S.E.2d 38 (2010), to support his claim of plain error. In Dellinger, after the defendant was convicted, his lawyer brought to the trial court’s attention information about 14 possible juror misconduct. Id. at 737-38, 696 S.E.2d at 39-40. A juror had previously lived in the same apartment complex as the defendant and had befriended the defendant over social media during trial, despite having denied any prior knowledge of, or relationship with, the defendant during voir dire. The juror also failed to disclose to the trial court that she was the sister-in-law to one of the witnesses and her brother-in-law worked for another witness. Id. at 739-40, 696 S.E.2d at 40-41. In Dellinger, due to the juror’s complete lack of candor with the trial court during voir dire, this Court concluded that the juror “had such connection with Appellant and [the] witnesses . . . that bias must be presumed.” Id. at 741, 696 S.E.2d at 43 (citing Syl. Pt. 1, O’Dell v. Miller, 211 W. Va. 285, 286, 565 S.E.2d 407, 408 (2002) (“Actual bias can be shown either by a juror’s own admission of bias or by proof of specific facts which show the juror has such prejudice or connection with the parties at trial that bias is presumed.” Syl. Pt. 5, State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996)). We therefore concluded that the trial court erred in denying the defendant’s motion for a new trial. Dellinger, 225 W. Va. at 741, 696 S.E.2d at 43. Unlike the facts in Dellinger, in the instant case, the juror came forward as soon as she realized that she might know the Petitioner’s ex-wife. There was no lack of candor demonstrated by the juror that would have caused the trial court to question whether the juror had any bias or prejudice toward the Petitioner or the witnesses. Moreover, any potential harm was cured by the trial court in dismissing the juror, at the Petitioner’s request, 15 and replacing her with the alternate. Further, the trial court directed the jury, which was early in its deliberation, to start its deliberations anew with the alternate juror. This decision was not error, let alone an egregious-type error, that would have required this Court to apply the plain error doctrine. D. Video Recording The next issue is whether the trial court erred in allowing the State to play a video recording of the Petitioner at the Harrison County Sheriff’s Department over the Petitioner’s objection. The Petitioner argues that the video recording evidence is prejudicial and should have been excluded by the trial court. The State argues that the evidence was properly admitted at trial. According to the appendix record, the video recording at issue is of a conversation between the Petitioner and his girlfriend, Ms. Kirkland, captured by a closedcircuit video camera at the Harrison County Sheriff’s Office. According to the testimony of Sgt. Robert G. Waybright, a deputy with the sheriff’s office, prior to any arrest, both the Petitioner and Ms. Kirkland voluntary went with the deputy to the department for questioning. Sgt. Waybright interviewed both Ms. Kirkland and the Petitioner. Prior to interviewing Ms. Kirkland again, she was placed in the interview room with the Petitioner. The video shows Ms. Kirkland sitting with the Petitioner. Sgt. Waybright testified that 16 they were talking really low, basically, whispering. But you could tell that Mr. Murray was very aggravated, very upset with Crystal. At one point, he had actually made a hand motion, like this, acting as though he was going to strike her. And basically, told her – again it’s very difficult, the modulation was very low. You couldn’t really understand what they were saying. But at one point he said something like, I told you to keep your mouth shut. And he does a hand motion, like he’s going to backhand her. The Petitioner’s lawyer objected to the State’s motion to play the video for the jury solely on the basis that “the probative value of this evidence is far exceeded by its prejudicial impact.”10 After an in camera review of the video recording, the trial court found it admissible. The trial court also instructed the jury that some of the recording was difficult to hear and that “to the extent that you perceive any variation between what someone else thinks is on the recording, and what you think is on the recording, you are to be guided solely by what you think is on the recording.” As we have previously held: “‘The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.’ Syllabus point 10, State v. Huffman, 10 Rule 403 of the West Virginia Rules of Evidence provides that otherwise relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of . . . unfair prejudice.” 17 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds, State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994).” Syllabus Point 1, State v. Calloway, 207 W. Va. 43, 528 S.E.2d 490 (1999). Syl. Pt. 1, State v. Harris, 216 W. Va. 237, 605 S.E.2d 809 (2004). The trial court did not abuse its discretion allowing the video recording into evidence. The video recording showed that the Petitioner was aggravated and angry with his girlfriend for talking with police about T.J.’s death. The video recording was relevant and the prejudice to the Petitioner was not outweighed by the probative value of the evidence. See W. Va. R. Evid. 403. E. Co-Defendant’s Plea Agreement Finally, the Petitioner asserts that the trial court erred in allowing the State to tell the jury that Collins’s plea agreement obligated Collins to testify truthfully. This alleged error stems from Collins’s testimony that part of his plea agreement included the requirement that he “offer truthful testimony.” Directly following the description of the plea agreement, at the close of Collins’s direct examination, the trial court gave the jury a cautionary instruction regarding the jury’s consideration of the plea agreement.11 The Petitioner’s 11 The trial court instructed the jury as follows: Ladies and gentlemen, let me instruct you at this point, that (continued...) 18 counsel never objected to the description of the plea agreement or the trial court’s instruction. Further, the Petitioner never asked the trial court to redact any portion of the co-defendant’s plea agreement. Given the lack of any objection by the Petitioner’s counsel to the condition of 11 (...continued) you’ve heard evidence that this witness intends to plead guilty to a crime which arose out of the same events for which the defendant is on trial here. The intended plea is not evidence, that the defendant on trial is guilty, or that the crime charged in the indictment was committed. You may consider this witness’s guilty plea or intended guilty plea only for the purpose of determining how much, if at all, to rely upon his testimony. The guilt or innocence of the defendant on trial, Mr. Murray, must be determined solely by you, and solely by the evidence introduced in the trial of this case. Now, you’ve also heard testimony from this witness that he may have made a statement to the police, not under oath, before this trial. And that, that statement may be different than his testimony here in court. To the extent that a statement made before trial, that’s not under oath was brought to your attention, it’s only brought to your attention to help you decide how believable the witness’s court testimony is. You cannot use it as proof of anything else. You can only use it as one way of evaluating his testimony here in court. And again, this evidence is admitted for the limited purpose only, and is not admitted as proof of the defendant’s guilt on the present charge. The trial court gave the same instruction at the conclusion of Collins’s cross-examination. 19 the plea agreement that Collins had to provide “truthful” testimony, for the Petitioner to prevail this Court would have to find that the trial court committed plain error in allowing the terms of the plea agreement to be admitted at trial. See Miller, 194 W. Va. at 6,459 S.E.2d at 117, Syl. Pt. 7. We decline to do so. The trial court made a proper, discretionary, evidentiary ruling to allow the co-defendant’s plea agreement to be admitted for purposes of assessing the witness’s credibility. See Syl. Pt. 4, State v. Swims, 212 W. Va. 263, 569 S.E.2d 784 (2002) (“During the direct examination of a co-defendant, a prosecutor may elicit testimony regarding the co-defendant’s plea agreement, and may actually introduce the plea agreement into evidence for purposes which include, but are not necessarily limited to: (1) allowing the jury to accurately assess the credibility of the witness; (2) eliminating any concern by the jury that the government has selectively prosecuted the defendant; and (3) explaining how the witness has first-hand knowledge of the events about which he/she is testifying.”).",sufficiency of the evidence
+165,886290,1,4,"¶ 19 Did the District Court abuse its discretion by failing to consider or rule upon the request to certify the class under Rule 23(b)(2) relating to the plea for injunctive relief? ¶ 20 In light of our remand on Issue One, we would direct the District Court to address Appellants' request to certify under Rule 23(b)(2) should it determine that the Appellants satisfy the prerequisites of Rule 23(a), M.R.Civ.P. ¶ 21 Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with our Opinion. We Concur: KARLA M. GRAY, C.J., JAMES C. NELSON, PATRICIA COTTER and JIM RICE, JJ.",issues
+166,2176806,1,3,"As noted, Frontline asserts that the appellate court improperly affirmed the circuit court's grant of COSCO's motion for summary judgment and subsequent denial of Frontline's motion to reconsider. This court reviews the grant of summary judgment de novo. Forsythe v. Clark USA, Inc., 224 Ill.2d 274, 280, 309 Ill.Dec. 361, 864 N.E.2d 227 (2007). Reviewing a summary judgment disposition, this court construes all evidence strictly against the movant and liberally in favor of the nonmoving party. Forsythe, 224 Ill.2d at 280, 309 Ill.Dec. 361, 864 N.E.2d 227. An indemnity agreement is a contract and is subject to contract interpretation rules. Virginia Surety Co. v. Northern Insurance Co. of New York, 224 Ill.2d 550, 556, 310 Ill.Dec. 338, 866 N.E.2d 149 (2007). The cardinal rule of contract interpretation is to discern the parties' intent from the contract language. Virginia Surety, 224 Ill.2d at 556, 310 Ill.Dec. 338, 866 N.E.2d 149. Where the contract language is unambiguous, it should be given its plain and ordinary meaning. Virginia Surety, 224 Ill.2d at 556, 310 Ill.Dec. 338, 866 N.E.2d 149.
+This court has previously considered whether an indemnity agreement provided indemnification for an indemnitee's own negligence. In Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp., 395 Ill. 429, 430, 70 N.E.2d 604 (1946), an elevator repair company employee was hit by a falling elevator and died. It was conceded that the injury and death were due to the negligence of the building owner's employee's negligence. The elevator repair company made payments pursuant to the Workers' Compensation Act and then sued the building owner to recover the amount paid based on the owner's negligence. The parties' indemnity contract provided: `The contractor [repair company/indemnitor] further agrees to indemnify and hold the owner, the owner's employees and agents, the Architects and Engineers, and the City of Chicago, wholly harmless from any damages, claims, demands or suit by any person or persons arising out of any acts or omissions by the Contractor, his agents, servants or employees in the course of any work done in connection with any of the matters set out in these specifications, and the contractor shall carry at his own expense insurance in a company satisfactory to the owner to cover the aforesaid liabilities.' Westinghouse Electric, 395 Ill. at 432, 70 N.E.2d 604. Construing the above language, both the trial and appellate courts found in favor of the elevator repair company. This court affirmed, holding that the contract language was insufficient to indemnify the owner/indemnitee for the owner/indemnitee's own negligence. The language of the contract at issue in Westinghouse supports this conclusion. The repair company/indemnitor agrees to indemnify and hold the owners    wholly harmless from any damages    arising out of any acts or omissions by the Contractor [repair company/indemnitor]. Westinghouse Electric, 395 Ill. at 432, 70 N.E.2d 604. This clearly refers to and provides indemnity for acts or omissions by the repair company/indemnitor. Because the negligence at issue in Westinghouse was that of the owner, then, it could not be considered an act or omission by the repair company and the indemnity contract could not apply. This court recognized, however, that in certain circumstances a contract could indemnify a person for that person's own negligence. We stated that [i]t is quite generally held that an indemnity contract will not be construed as indemnifying one against his own negligence, unless such a construction is required by clear and explicit language of the contract [citations] or such intention is expressed in unequivocal terms. Westinghouse Electric, 395 Ill. at 433, 70 N.E.2d 604. We then held that, under the facts of Westinghouse, to adopt a construction of the contract that would provide indemnity for the owner/indemnitee would impose on the contractor [repair company] the duty to indemnify against injuries entirely without his control, and such should not be adopted in the absence of clear language in the contract including injuries arising from the negligence of [the owner's] own servants. Westinghouse Electric, 395 Ill. at 434, 70 N.E.2d 604. This court has had occasion to review other contracts that were purported to indemnify an indemnitee for its own negligence. Tatar v. Maxon Construction Co., 54 Ill.2d 64, 66, 294 N.E.2d 272 (1973) (no indemnity for indemnitee's own negligence where indemnity clause covered `all expenses, claims, suits, or judgments    by reason of, arising out of, or connected with, accidents, injuries, or damages, which may occur upon or about the Subcontractor's work'); Zadak v. Cannon, 59 Ill.2d 118, 121, 319 N.E.2d 469 (1974) (no indemnity for indemnitee's own negligence where language referred to claims `arising out of any such work' — `such work' being that performed by [indemnitor's] employees under the contract); Schek v. Chicago Transit Authority, 42 Ill.2d 362, 363, 247 N.E.2d 886 (1969) (providing indemnity for indemnitee's own negligence where language stated that indemnitor `shall indemnify and save harmless    Chicago Transit Authority [indemnitee] from all claims for any such loss, damage, injury or death, whether caused by the negligence of Licensor, Chicago Transit Authority, their agents or employees, or otherwise'). [1] We have also noted, however, that it serve[s] no useful purpose to attempt to analyze or reconcile the numerous cases interpreting indemnity clauses since each individual case depends upon the particular language used and the factual setting of the case. Zadak, 59 Ill.2d at 121, 319 N.E.2d 469. While these cases, and the others cited below, do not involve the precise language in this case, they do provide guidance for our analysis of the similar language at issue here. Frontline asserts that a review of case law from various appellate districts establishes that the interchange agreement between COSCO and Frontline does not provide COSCO indemnity from its own negligence. Chiefly, Frontline relies upon Karsner v. Lechters Illinois, Inc., 331 Ill. App.3d 474, 264 Ill.Dec. 902, 771 N.E.2d 606 (2002). Frontline acknowledges that the appellate court in this case declined to follow Karsner, but Frontline contends that the language of the indemnification provision in Karsner is similar to the language of the indemnification provision at issue in this case. In Karsner, the plaintiff filed an action against the defendants for injuries he sustained while unloading a trailer containing the defendants' merchandise. Karsner, 331 Ill.App.3d at 475, 264 Ill.Dec. 902, 771 N.E.2d 606. The plaintiff claimed that the defendants had negligently loaded the trailer such that when he delivered and unloaded the trailer he was injured. Karsner, 331 Ill.App.3d at 475, 264 Ill.Dec. 902, 771 N.E.2d 606. The defendants filed a third-party indemnity action against the plaintiff's employer and its parent company (collectively, the employer). Karsner, 331 Ill.App.3d at 475, 264 Ill.Dec. 902, 771 N.E.2d 606. The defendants and the employer had a contract which contained the following provision: `Carrier [the employer] shall indemnify and hold Lechters [a defendant] harmless from and against any and all claims, actions [ sic ] damages, liability and expense, including attorneys fees, in connection with loss of life, personal injury, and/or damage to property arising from or out of the pick-up, transportation and delivery of the property of Lechters by carrier, and the use of any motor vehicle or other equipment by Carrier in connection therewith.' Karsner, 331 Ill. App.3d at 476, 264 Ill.Dec. 902, 771 N.E.2d 606. Like the agreement in this case, the agreement in Karsner broadly provided indemnity from and against any and all claims. The Karsner court, construing the provision quoted above, found that even though the contract states that Navajo [the employer] shall indemnify and `hold Lechters harmless from and against any and all claims, actions [ sic ] damages, liability and expense,' this language is insufficient to give Lechters indemnity for its own negligence. Karsner, 331 Ill.App.3d at 477, 264 Ill.Dec. 902, 771 N.E.2d 606. Supporting its position, the Karsner court pointed to this court's decision in Westinghouse as well as another appellate decision, McNiff v. Millard Maintenance Service Co., 303 Ill.App.3d 1074, 239 Ill.Dec. 802, 715 N.E.2d 247 (1999). Additionally, the Karsner court indicated a concern that any interpretation which required the employer to indemnify the defendants for the defendants' own negligence would contravene established public policy. In citing Westinghouse, the Karsner court pointed out that Westinghouse provid[ed] that the language `hold    harmless from any damages, claims, demands or suit by any person, arising out of any acts or omissions' was not clear and specific language rendering the subcontractor liable for the general contractor's own negligence. Karsner, 331 Ill.App.3d at 477, 264 Ill.Dec. 902, 771 N.E.2d 606. What the Karsner court did not point out, however, was that the indemnity agreement in Westinghouse contained language in addition to that expressed directly above. The agreement in Westinghouse, more fully expressed, stated that the indemnitor `agrees to indemnify and hold the owner    wholly harmless from any damages    arising out of any acts or omissions by the Contractor [indemnitor].'  (Emphasis added.) Westinghouse Electric, 395 Ill. at 432, 70 N.E.2d 604. This limiting language clearly indicates that the agreement provided indemnity only for acts or omissions by the indemnitor. In citing McNiff, the Karsner court pointed out that McNiff provid[ed] that the phrase, `indemnify    from and against any and all    liabilities' was insufficient to provide indemnification for the indemnitee's own negligence. Karsner, 331 Ill.App.3d at 477, 264 Ill.Dec. 902, 771 N.E.2d 606. The indemnification agreement in McNiff also provided, however, that the indemnification covered any and all claims `relating to    allegedly or actually arising out of or incidental to the Work, including, without limiting the foregoing, all acts and omissions of the officers, employees and agents of Contractor [the indemnitor] or any of its subcontractors.'  McNiff, 303 Ill.App.3d at 1076, 239 Ill.Dec. 802, 715 N.E.2d 247. The McNiff court's finding, then, is specifically supported by limiting language within the contract. The above analysis makes evident that the Karsner court's reliance on Westinghouse and McNiff is misplaced. The indemnification language in Westinghouse is specifically limited to any and all claims arising out of or in connection with the acts or omissions of the indemnitor just as the indemnification language in McNiff is specifically limited to any and all claims arising out of what the McNiff court considered to be the indemnitor's work. In Karsner, by contrast, no limiting language is evident, as the contract at issue provided that the `[the indemnitor] shall indemnify and hold [the indemnitee] harmless from and against any and all claims    arising from or out of the pick-up, transportation and delivery of the property of [the indemnitee] by [the indemnitor], and the use of any motor vehicle or other equipment by [the indemnitor] in connection therewith.' Karsner, 331 Ill.App.3d at 476, 264 Ill.Dec. 902, 771 N.E.2d 606. Focusing on this language alone, the indemnitee in Karsner was entitled to indemnification, even for its own negligence, as the injury at issue arose from the delivery of the indemnitee's property by the indemnitor. This was not, however, the Karsner court's holding. Frontline points to other cases which it claims have held, like Karsner, that the inclusion of the phrase any and all within an indemnification clause is insufficient to indemnify an indemnitee for its own negligence. See, e.g., Blackshare v. Banfield, 367 Ill.App.3d 1077, 306 Ill.Dec. 344, 857 N.E.2d 743 (2006); Hankins v. Pekin Insurance Co., 305 Ill.App.3d 1088, 239 Ill. Dec. 394, 713 N.E.2d 1244 (1999). A closer inspection of Blackshare and Hankins reveals, however, just as a closer inspection of Westinghouse and McNiff revealed, that these cases do not stand for that proposition. As in Westinghouse and McNiff, the language of the indemnification agreements in Blackshare and Hankins contained limiting language expressly restricting indemnification liability. In Blackshare, a power cooperative brought an indemnification action against an electrical contractor based upon a written contract. Blackshare, 367 Ill.App.3d 1077, 306 Ill.Dec. 344, 857 N.E.2d 743. The contract provided that the [c]ontractor shall defend and indemnify and save Owner and all of Owner's employees harmless from any and all claims    arising or alleged to arise from personal injuries, including death, or damage to property, occurring during the performance of the work and due to the negligent acts or omissions of the Contractor. See Blackshare, 367 Ill.App.3d at 1078, 306 Ill.Dec. 344, 857 N.E.2d 743. The Blackshare court found critical the limiting language of the above provision that promised indemnity for damages that were due to the negligent acts or omissions of the Contractor and held that the contract limited the electrical contractor's indemnity obligation to a percentage equal to that of the contractor's negligence, not extending to indemnification for the power cooperative's own negligence. Blackshare, 367 Ill. App.3d at 1078, 306 Ill.Dec. 344, 857 N.E.2d 743. In Hankins, a cartage carrier sought indemnification coverage for its own negligence against a cartage operator based upon a written contract. Hankins, 305 Ill.App.3d 1088, 239 Ill.Dec. 394, 713 N.E.2d 1244. The agreement provided that the cartage operator would indemnify and hold harmless the cartage carrier `from and against all claims, damages, losses[,] and expenses    which might arise out of the performance of any work to be performed hereunder by CARTAGE OPERATOR    caused in whole or in part by CARTAGE OPERATOR'S negligent act or omission.' Hankins, 305 Ill. App.3d at 1089, 239 Ill.Dec. 394, 713 N.E.2d 1244. Interpreting this language, the Hankins court found that the indemnification provided was limited to indemnity for injury caused in whole or in part by the cartage operator's negligence, not extending to that of the cartage carrier's negligence. Hankins, 305 Ill.App.3d at 1093, 239 Ill.Dec. 394, 713 N.E.2d 1244. Focusing on the language used in Blackshare and Hankins, then, it is apparent that they do not stand, as Frontline asserts, for the proposition that the inclusion of the phrase any and all within an indemnification clause is insufficient to indemnify an indemnitee for its own negligence. To be sure, Blackshare and Hankins contain similar any and all language to that used in this case. Like Westinghouse and McNiff, however, they also contained express clauses limiting indemnification to negligence occasioned by the indemnitor. Accordingly, both cases merely stand for the proposition that when an indemnity contract expressly limits itself to the negligence of the indemnitor, courts will not strain, simply because the contract also contains any and all language, to read into that contract indemnification for an indemnitee's own negligence. Indeed, to do so would violate this court's recognition in Westinghouse that [i]t is quite generally held that an indemnity contract will not be construed as indemnifying one against his own negligence, unless such a construction is required by clear and explicit language of the contract [citations] or such intention is expressed in unequivocal terms. Westinghouse Electric, 395 Ill. at 433, 70 N.E.2d 604. The indemnification agreement in Karsner, unlike the agreements found in Westinghouse, McNiff, Blackshare, and Hankins, included clear and explicit contract language providing indemnification for the indemnitee's own negligence in exactly the type of situation presented in that case — where the injury arose from the delivery of the indemnitee's property by the indemnitor. This makes clear, then, that Karsner stands alone for the proposition that the inclusion of the phrase any and all within an indemnification clause is insufficient to indemnify an indemnitee for its own negligence. It is not simply the use of the phrase any and all that determines whether a particular contract provides indemnification for an indemnitee's own negligence. The phrase must be read in the context of the entire contract. If the contract warrants it, though, the use of the phrase any and all may indicate, as COSCO contends, that the parties intended an indemnitee be indemnified, even for the indemnitee's own negligence. See, e.g., Economy Mechanical Industries, Inc. v. T.J. Higgins Co., 294 Ill.App.3d 150, 155, 228 Ill.Dec. 327, 689 N.E.2d 199 (1997) (interpreting contract language which provided that [indemnitor] will at all times protect, indemnify and save and keep harmless the [indemnitee] against and from any and all loss, cost, damage or expense, arising out of or from any accident or other occurrence to provide indemnification for an indemnitee's own negligence (emphasis omitted)); Rios v. Field, 132 Ill.App.2d 519, 522, 270 N.E.2d 98 (1971) (holding that the use of the phrase any and all, even if it is the sole descriptive reference to the cause of the injury, claim or loss indemnified, can render an agreement sufficiently broad to include indemnification for claims or injuries caused by indemnitee's own negligence subject to any limitations in the agreement); Haynes v. Montgomery Ward & Co., 47 Ill.App.2d 340, 341, 346-47, 198 N.E.2d 548 (1964) (where contract provided that [the indemnitor] holds the [indemnitee] harmless for any and all injuries or accident sustained by [the indemnitor's] employees while on the premises of [the indemnitee] or while en route to perform any services for [the indemnitee], the court held that [t]he words `any and all' are all inclusive; their conciseness does not limit their scope; their coverage would not have been extended by making them more specific. If the words `any and all' are to have their commonly accepted meaning, they cover the accident in this case); Washington Group International, Inc. v. Mason Manufacturing, Inc., 263 F.Supp.2d 1115, 1118 (N.D.Ill.2003) (utilizing Illinois law, rejecting Karsner, and finding that [t]he current contract states that [the indemnitor] will indemnify [the indemnitee] for `any and all' loss arising from the inspections and most cases dealing with similar `any and all' language have determined that this is sufficient to provide coverage for the indemnitee's own negligence). Karsner's analysis to the contrary is thus overruled. Considering the above, we turn to the indemnity agreement at issue in this case. Of crucial importance, the agreement between Frontline and COSCO provides that [Frontline] shall indemnify [COSCO] against, and hold [COSCO] harmless for any and all claims    arising out of, [in] connection with, or resulting from the possession, use, operation or returning of the equipment during all periods when the equipment shall be out of the possession of COSCO. This contract contains no limiting language to suggest that the indemnity provided is not intended to cover claims resulting from COSCO's own negligence. Accordingly, we find that the express language of the interchange agreement entered into between Frontline and COSCO clearly and explicitly provides indemnification for COSCO's own negligence pursuant to the rest of the contract terms. As our appellate court aptly put it in the past, [t]he words `any and all' are all inclusive; their conciseness does not limit their scope; their coverage would not have been extended by making them more specific. Haynes, 47 Ill.App.2d at 346, 198 N.E.2d 548. Frontline did not agree to indemnify COSCO for any and all claims arising out of Frontline's negligence. Instead, Frontline agreed to indemnify COSCO for any and all claims    arising out of    the possession, use, operation or returning of the equipment during all periods when the equipment shall be out of the possession of COSCO. This agreement is very broad and, considering its common unambiguous meaning, encompasses even claims which arise out of COSCO's negligence. Again pointing to Karsner, Frontline contends that it might contravene public policy to hold, as we do, that a contract can provide indemnification for an indemnitee's own negligence in a circumstance such as at issue in this case. In Karsner, the appellate court noted that the Construction Contract Indemnification for Negligence Act specifically provided that no construction contract shall allow for the indemnification of a person's own negligence because such a provision is `void as against public policy and wholly unenforceable.' Karsner, 331 Ill.App.3d at 477, 264 Ill.Dec. 902, 771 N.E.2d 606, quoting 740 ILCS 35/1 (West 2000). Additionally, the court pointed to the Managed Care Reform and Patient Rights Act, which provided that no person or health-care provider may be indemnified for its own negligence in the performance of his, her, or its duties. Karsner, 331 Ill.App.3d at 477, 264 Ill.Dec. 902, 771 N.E.2d 606, citing 215 ILCS 134/95 (West 2000). Based on these statutes, the Karsner court found that in the absence of an express agreement, it is against Illinois public policy to require indemnification for a person's own negligence. Karsner, 331 Ill.App.3d at 477, 264 Ill.Dec. 902, 771 N.E.2d 606. Our finding does not contradict public policy, however. As we recognized in Westinghouse, when an agreement clearly and explicitly provides indemnification for an indemnitee's own negligence, it should be construed accordingly. Westinghouse Electric, 395 Ill. at 433, 70 N.E.2d 604. The agreement at issue in this case is specific and clear enough to provide indemnification for claims arising out of COSCO's negligence. Moreover, while certain statutes specifically prohibit the enforcement of agreements that indemnify an indemnitee for its own negligence, there is no such statute at play in this case. Had the General Assembly wanted to prohibit the enforcement of indemnification agreements that indemnify an indemnitee for its own negligence in circumstances such as these, it could have, just as it has in other situations. See, e.g., 740 ILCS 35/1 (West 2006); 215 ILCS 134/95 (West 2006). The General Assembly chose not to create such a prohibition in such circumstances, however, and we will not judicially create one.
+Having determined that the agreement at issue in this case is explicit and clear enough to signify the parties' intention that Frontline indemnify COSCO for claims resulting from COSCO's own negligence, we turn to the scope of the agreement. Frontline contends that the negligence claims asserted against COSCO in the underlying litigation do not fall within the scope of the agreement's indemnification clause. In response, COSCO asserts that this issue has been forfeited, as it was not raised in Frontline's petition for leave to appeal. Notwithstanding forfeiture, COSCO asserts that substantively analyzing the issue reveals that the negligence claims alleged against COSCO do fall within the scope of the indemnification agreement. While Frontline raised the scope issue in the appellate court, it did not include it in its petition for leave to appeal. Supreme Court Rule 315(c)(3) provides that a petition for leave to appeal must contain a statement of the points relied upon in asking the Supreme Court to review the judgment of the Appellate Court. 210 Ill.2d R. 315(c)(3). In its petition for leave to appeal under a Points Relied Upon For Reversal heading, Frontline argued that [t]he Appellate Court erred because it improperly treated the language of the interchange agreement, containing an indemnification provision, as including language which would indemnify defendants/respondents, [COSCO], for claims resulting from COSCO's own negligence. In the very next sentence, Frontline stated that [t]he issue in this case is whether the language `any and all' in the interchange agreement is sufficient to indemnify COSCO for their own negligence. Frontline failed to argue in its petition, however, that the negligence claims asserted against COSCO in the underlying litigation do not fall within the scope of the agreement's indemnification clause. This issue was only raised in its brief, which it styled as a Supplemental Brief to Petition for Leave to Appeal. A party's failure to raise an issue in its petition for leave to appeal may be deemed a forfeiture of that issue. Sullivan v. Edward Hospital, 209 Ill.2d 100, 124-25, 282 Ill.Dec. 348, 806 N.E.2d 645 (2004). [2] By failing to raise the scope issue in its petition for leave to appeal, then, Frontline has forfeited that issue in this court. That Frontline later raised the issue in its brief does not cure the forfeiture. Finding the scope issue forfeited, we will not address the issue on the merits.",analysis
+167,1127412,1,1,"Appellant, General Chemical Corporation (General Chemical), presents the following issue for review: A. Did the Unemployment Insurance Commission act arbitrarily, capriciously, or otherwise unlawfully within the meaning of W.S. § 16-3-114(c) in reversing its Examiner's decision, and ruling that the striking claimants engaged in a strike are not disqualified from receiving benefits under W.S. § 27-3-313(a)(i)? Appellee, the Department of Employment, Unemployment Insurance Commission (Commission), states the issue as: Whether the decision of the Unemployment Insurance Commission that Patrick Senstock and the other claimants should not be disqualified from unemployment benefits because their unemployment was not due to a work stoppage resulting from a labor dispute is arbitrary, capricious, unreasonable or characterized by an abuse of discretion? Claimants, Patrick Senstock, et. al. (striking workers), state the issue as: 1. Did the Unemployment Insurance Commission act arbitrary, capricious, abuse its discretion, or otherwise fail to act in accordance with law in awarding striking employees benefits in light of the Wyoming Employment Security Laws labor dispute disqualification provision contained in W.S. § 27-3-313(a)(i)?",issues
+168,4538067,1,3,"¶8 IP 426 is essentially a refiling of IP 420 which happened almost immediately after this Court determined the gist statement in IP 420 was insufficient. In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, ¶11, 458 P.3d 1080. Although there are some differences between the two proposed measures they are nearly identical and were submitted by the same proponents. In In re Initiative Petition No. 420, State Question No. 804, this Court determined the gist statement, through its omissions, failed to alert potential signatories about the true nature of the proposed measure which was to curtail partisan gerrymandering. Id., ¶ ¶7, 11. The gist in IP 420 was as follows: This measure adds a new Article V-A to the Oklahoma Constitution. This new Article creates the Citizens' Independent Redistricting Commission and vests the power to redistrict the State's House of Representative and Senatorial districts, as well as its Federal Congressional Districts, in the Commission (rather than the Legislature). The Article sets forth qualifications and a process for the selection of Commissioners, a Special Master and a Secretary. It also sets forth a process for the creation and approval of redistricting plans after each Federal Decennial Census. In creating the redistricting plans, the Commission must comply with certain criteria, including federal law, population equality, and contiguity, and must seek to maximize compliance with other criteria, including respect for communities of interest, racial and ethnic fairness, respect for political subdivision boundaries, political fairness, and compactness. The Article creates a fallback mechanism in the event that the Commission cannot reach consensus on a plan within a set timeframe. It also sets forth procedures for funding and judicial review, repeals existing constitutional provisions involving legislative districts, codifies the number of state House of Representative and Senatorial districts, and reserves powers to the Commission rather than the Legislature. Id., 5. We determined this gist: 1) did not mention the selection process and composition of the Commission; 2) did not provide enough information concerning the qualifications of the commissioners; and 3) failed to make any mention of the criteria the Commission was to avoid in making a redistricting plan, such as, the omission from consideration of [t]he political affiliation or voting history of the population of a district. Id., ¶¶7-8. We held a simple and brief statement mentioning these components was necessary to inform a potential signatory about the true nature of the measure. Id. Justice Winchester concurred specially, and also found fault with the gist because it did not mention the role of this Court in the redistricting process. Id., ¶2 (Winchester, J., concurring). ¶9 The Respondents appear to have adequately addressed these concerns when they filed IP 426. The gist statement of IP 426 is as follows: This measure adds a new Article to the Oklahoma Constitution, intended primarily to prevent political gerrymandering. The Article creates a Citizens' Independent Redistricting Commission, and vests the power to redistrict the state's House, Senatorial, and federal Congressional districts in the Commission (rather than the Legislature). The 9-member Commission will consist of 3 members from each of 3 groups, determined by voter registration: those affiliated with the state's largest political party; those affiliated with its second-largest party; and those unaffiliated with either. Commissioners are not elected by voters but selected according to a detailed process set forth by the Article: in brief, a panel of retired judges and justices designated by the Chief Justice of the Oklahoma Supreme Court will choose pools of approximately 20 applicants from each group, then randomly select 3 Commissioners from each pool. The Article sets forth various qualifications for Commissioners, Special Master, and Secretary, intended to avoid conflicts of interest ( for example , they cannot have changed party affiliation within a set period, and neither they nor their immediate family may have held or been nominated for partisan elective office or served as paid staff for a political party or as a registered lobbyist in the last five years). It also sets forth a process for the creation and approval of redistricting plans after each federal Decennial Census, including, among other things, a method for counting incarcerated persons, public notice, and open meeting requirements. In creating the plans, the Commission must comply with federal law, population equality, and contiguity requirements, and must seek to maximize respect for communities of interest, racial and ethnic fairness, political fairness, respect for political subdivision boundaries, and compactness (in order of priority), without considering the residence of any legislator or candidate or a population's political affiliation or voting history except as necessary for the above criteria. The Article creates a fallback mechanism by which the state Supreme Court, using a report from the Special Master, will select a plan if the Commission cannot reach the required level of consensus within a set timeframe. It also sets forth procedures for funding and judicial review, repeals existing constitutional provisions involving legislative districts, codifies the number of state House and Senatorial districts, and reserves powers to the Commission rather than the Legislature. Please review attached Petition for further details. Petitioners' Appendix to Application and Petition to Assume Original Jurisdiction and Review the Gist of Initiative Petition No. 426, Ex. A. The Petitioners contend, however, this gist statement is affirmatively inaccurate, omits an explanation of the Commission's voting requirements on a redistricting plan, and omits any information on what political fairness means.
+¶10 The Petitioners assert the gist is inaccurate because it states the Chief Justice of the Oklahoma Supreme Court will designate a Panel that will be involved in choosing pools of applicants to be a commissioner. They contend, this is inaccurate because §4(B)(4)(b) of IP 426 states the Panel members will be selected by random drawing. The gist of IP 426 provides: in brief, a panel of retired judges and justices designated by the Chief Justice of the Oklahoma Supreme Court will choose pools of approximately 20 applicants from each group, then randomly select 3 Commissioners from each pool. Section 4(B)(4)(b) of IP 426 states: No later than December 15 of 2020, and no later than December 1 of each subsequent year ending in zero, the Chief Justice of the Oklahoma Supreme Court shall designate a Panel to review the applications . The Panel shall consist of three Judges or Justices who have retired from the Oklahoma Supreme Court or the Oklahoma Court of Criminal Appeals or the Oklahoma Court of Civil Appeals, and who are able and willing to serve on the Panel, selected by random drawing . If fewer than three state appellate Judges or Justices who are able and willing to serve have been identified, then the Chief Justice shall appoint a retired Oklahoma Federal District Court Judge who accepts such appointment. (emphasis added). Petitioners propose that an accurate statement in the gist would be: [A] randomly selected panel of retired judges and justices designated by the Chief Justice of the Oklahoma Supreme Court will choose pools of approximately 20 applicants from each group, then randomly select 3 Commissioners from each pool. Petitioners Brief at 5. ¶11 The Petitioner, Eldon Merklin, raised a similar issue in In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, 458 P.3d 1080, however, it dealt with the differences between §4(A)(7) and §4(B)(4)(b) of IP 420 and not just the language in §4(B)(4)(b) i.e., designate and selected by random drawing. 3 In their Reply Brief, the petitioners in that case claimed the provisions of §4(A)(7) and § 4(B)(4)(b) of IP 420 were self-contradictory. Reply Brief (118,406) at 1. Section 4(A)(7) of IP 420 explained 'Panel' shall refer to the group of retired Judges and Justices chosen by the Chief Justice of the Oklahoma Supreme Court to oversee the creation of the Commission. Id. However, §4(B)(4)(b) provides... The Panel shall consist of three [retired] Judges or Justices . . . who are able and willing to serve on the Panel, selected by random drawing . Id. The petitioners also noted the gist in IP 420 makes no mention of the issue at all. Id. at 2. The petitioners determined the remedy for all their challenges was straightforward and is simply resolved by Proponents: refile with a new gist. (They may choose to resolve the conflict between IP 420, § 4(A)(7) and IP 420, § 4(B)(4)(b) as well.). Id. at 3. In that case, the apparent conflict was with the word chosen in §4(A)(7) of IP 420 and the words selected by random drawing in §4(B)(4)(b) of IP 420. In our opinion, we addressed this concern with these two sections and agreed they created an inconsistency in the petition and should be clarified. We determined: The petition requires a Panel to be designated by the Chief Justice consisting of retired Justices and appellate judges. Sections 4(A) (7) and 4(B)(4)(b) of IP 420 . The Panel will review the applications for the Commission and select some of the commissioners. Section 4(B)(4)(b) of IP 420 also states that the Panel will be selected by random drawing. We agree with the Petitioners that this creates an inconsistency in the petition and should be clarified. (emphasis added). In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, ¶7. Although the language used was designated rather than chosen or even chosen/designated, the opinion cites both sections of IP 420 in the context of the arguments made by the petitioners in their Reply Brief. ¶12 In drafting IP 426, the Respondents addressed the issue of the alleged conflicting terms. Section 4(A)(7) no longer uses the word chosen and now reads: 'Panel' shall refer to the group of retired Judges or Justices involved in the selection of Commissioners pursuant to Section 4(B)(4). In addition, the gist now mentions the Panel selection process. The Respondents assert that neither the gist nor the petition now use the offending word chosen which they concede arguably might forgo any type of randomness in the Panel selection process. Respondents' Brief at 6. They contend, the term designate and selected by random drawing are not in conflict in §4(B)(4)(b) of IP 426. The Chief Justice of the Supreme Court will designate the retired Judges and Justices who are able and willing to serve on the Panel. However, the selected by random drawing provision may never come into play. For instance, if only two retired Judges or Justices are able and willing to serve, then §4(B)(4)(b) requires the Chief Justice to appoint a retired Oklahoma Federal District Court Judge who accepts such appointment. In that situation there would be no random drawing. It is clearly not inaccurate to say the Chief Justice designates these retired Judges and Justices. In fact, the language suggested by the Petitioners would be inaccurate. Their suggested language makes no mention of the Chief Justices' role in the selection process and leaves the potential signatory to believe all Panel members will be randomly selected. That is clearly not the case. In In re Initiative Petition No. 420, State Question No. 804, we held [a]lthough the selection process need not be detailed, a simple statement concerning the selection and composition of the Commission is critical here to inform a potential signatory of the true nature of the petition. 2020 OK 10, ¶7. We find the Respondents sufficiently addressed those concerns in IP 426.
+¶13 Section 4(E)(1) of IP 426 concerns the vote count for approval of a redistricting plan. It provides: 1. Approval or Rejection of Plans. Each Commissioner has one vote. An affirmative vote of at least six (6) of the nine (9) Commissioners is required to approve a Plan, including at least one (1) Commissioner affiliated with each of the two (2) largest political parties in the state and one (1) Commissioner who is unaffiliated with either of the two largest political parties in the state. If the Commission cannot approve a State House of Representative, Senatorial, or Federal Congressional redistricting plan within one hundred and twenty (120) days of the release of the Federal Decennial Census Data, then a Fallback Mechanism takes effect wherein the Oklahoma Supreme Court shall approve a plan consistent with the process and criteria set out in IP 426. §4(F) of IP 426. The Petitioners assert the gist does not reveal that [t]he Commission can approve a redistricting plan only if (a) six of the nine commissioners approve, and (b) at least one Commissioner from each of the three Groups (Largest Party, Second Largest Party, and Unaffiliated) approves. Petitioners' Brief at 9. They speculate that the Oklahoma Supreme Court will be more involved in the redistricting process due to the vote count being more than a majority vote and voters deserve to know in the gist that the Commission cannot approve a redistricting plan with a simple majority vote, which they surmise, would ordinarily be the case. ¶14 In In re Initiative Petition No. 420, State Question No. 804, several Justices had concerns that merely stating the new Article would create[] a fallback mechanism in the gist, without more, was insufficient to explain the Court's role in the proposed redistricting process. 2020 OK 10, ¶3 (Winchester J., concurring). The Respondents heeded these concerns when drafting the gist of IP 426 which now states, in relevant part, [t]he Article creates a fallback mechanism by which the state Supreme Court, using a report from the Special Master, will select a plan if the Commission cannot reach the required level of consensus within a set timeframe. (emphasis added). ¶15 In addressing challenges to omissions in a gist statement, [t]he sole question . . . is whether the absence of a more detailed gist statement . . . without more, perpetuates a fraud on the signatories. In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, ¶19, 927 P.2d 558.  The measure's gist is not required to contain every regulatory detail so long as its outline is not incorrect. Id. , ¶20. Title 34 O.S. 2011, § 3, only requires the gist to be a simple statement and we have held it should inform a signer of what the measure is generally intended to do. Id. The gist statement should also be free from the taint of misleading terms or deceitful language. Id. The Petitioners assert it is critical to add to the gist statement the detailed voting requirements in order to inform the potential signatory of the true nature of the petition, i.e., the high likelihood the Supreme Court will be called upon to adopt the redistricting plan based upon these super majority voting requirements. Petitioners' Brief at 10. Whether or not this Court will be required to adopt a redistricting plan is mere speculation at this stage. This Court has previously declined to engage in speculation in our consideration of the validity of a gist. In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶6 n.15, 376 P.3d 250; In re Initiative Petition No. 358, State Question No. 658, 1994 OK 27, ¶12, 870 P.2d 782. IP 426's gist statement clearly states this Court will select a plan if the Commission cannot reach the required level of consensus within a set timeframe. This statement is not misleading and informs the potential signatory in a simple statement that a certain level of consensus will be required by the Commission to vote on a redistricting plan, i.e., a vote that might not be composed of a mere majority of the commissioners. Therefore, as to this matter, we do not find the absence of more detail in this already very lengthy gist statement perpetuates a fraud on the potential signatories.
+¶16 Section 4(D)(1)(c) of IP 426 provides: c. The Commission shall also seek to maximize compliance with each of the following criteria, set forth in the following order of priority: i. Communities of Interest. Districts shall minimize the division of communities of interest to the extent practicable. A Community of Interest is defined as an area with recognized similarities of interests, including but not limited to racial, ethnic, economic, social, cultural, geographic, tribal, linguistic, or historic identities. Communities of interest shall not include common relationships with political parties, officeholders, or political candidates. ii. Racial and Ethnic Fairness. No redistricting Plan should be drawn to have the effect of denying or abridging the equal opportunity of racial or ethnic minority groups to participate in the political process or to diminish their ability to elect representatives of their choice, whether alone or in coalition with others. iii. Political Fairness. No Plan should, when considered on a statewide basis, unduly favor or disfavor a political party. Undue favor to a political party shall be determined using the proposed map, data from the last ten years of statewide elections, and the best available statistical methods on identifying inequality of opportunity to elect. iv. Districts shall respect the geographic integrity of political subdivision boundaries to the extent preceding criteria have been satisfied. v. Compactness. A draft Plan should be compact to the extent preceding criteria have been satisfied. The gist statement mentions all these criteria. It provides: In creating the plans, the Commission must comply with federal law, population equality, and contiguity requirements, and must seek to maximize respect for communities of interest , racial and ethnic fairness, political fairness, respect for political subdivision boundaries, and compactness (in order of priority), without considering the residence of any legislator or candidate or a population's political affiliation or voting history except as necessary for the above criteria. (emphasis added). ¶17 The Petitioners single-out one of these criteria, political fairness, and ask this Court to find the gist insufficient because the mere mention of political fairness in their view, without more explanation, does not inform a potential signatory of what the measure is generally intended to do. Petitioners' Brief at 14. They assert, political fairness has been found to have many meanings by the United States Supreme Court and some mention in the gist is needed to determine what type of political fairness the petition would implement. In Rucho v. Common Cause, voters in North Carolina and Maryland challenged their States' congressional districting maps as being unconstitutional partisan gerrymandering. 139 S.Ct 2484 (2019). The Court determined that [p]artisan gerrymandering claims invariably sound in a desire for proportional representation i.e., reapportioning district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be. Id. at 2499. However, [f]airness may mean a greater number of competitive districts which seek to undo packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. Id. at 2500. The Court noted [d]eciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. Id. Any decision on what is fair in this context would be an 'unmoored determination' of the sort characteristic of a political question beyond the competence of the federal courts. Id. (citation omitted). ¶18 As the Supreme Court determined, there are many visions of what fairness means in an apportionment context. IP 426's definition of political fairness provides that no plan should unduly favor or disfavor a political party and this will be determined using the proposed map, data taken from the last ten years of statewide elections, and best available statistical methods on identifying inequality of opportunity to elect. Petitioners acknowledge the definition of political fairness in the petition relies upon the term undue favor which is defined as the inequality of opportunity to elect. Petitioners' Brief at 12-13. However, they argue that even this language is not in the gist. Although, the Supreme Court found federal courts were not appropriate for interpreting such fairness issues, the Commission here is the appropriate body to make such interpretations. Respondents contend the definition leaves a certain amount of leeway for the Commission to interpret in order to implement its provisions. ¶19 The gist needs to inform a potential signatory in a simple statement of the measure's true nature. In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, ¶7. The gist states its purpose is to prevent political gerrymandering and, as mentioned, presents details on the subjects this Court was concerned about in In re Initiative Petition No. 420, State Question No. 804. The gist provides that in creating the redistricting plans certain criteria will be used. Political fairness is only one of the many criteria mentioned in the gist and body of the petition. The gist puts a potential signatory on notice that the Commission will seek to maximize political fairness as well as the other criteria. The details on this criterion are found in the petition. A detailed description of this one criterion is not necessary to be placed in the gist. In In re Initiative Petition No. 384, we held a gist was insufficient. 2007 OK 47, ¶3, 164 P.3d 125. In our analysis, we noted the proponents had cut and paste[d] into the gist the definition of classroom instructional expenditures in mind-numbing detail but did not do this for other definitions. Id., ¶12. This we found resulted in a gist that, at once, contains too much and not enough information. Id. We noted, [i]t may not be necessary to define either classroom instructional expenditures or operational expenditures with the same kind of detail used by the Proponents in this gist, but the inclusion of one overly detailed definition without any definition of the other term creates an imbalance at odds with the purpose of the gist. Id., ¶12 n.4. ¶20 We hold, this very lengthy gist provides sufficient information and addressed our concerns in In re Initiative Petition No. 420, State Question No. 804. Including the details of only one of the redistricting criteria without others creates the same problems this Court recognized in In re Initiative Petition No. 384. The Petitioners would require too much of the gist of this initiative petition. See In re Initiative Petition No. 362 State Question 669, 1995 OK 77, ¶10, 899 P.2d 1145. 4 The time period for filing an application for rehearing is hereby shortened to five business days from the date on which this opinion is filed. See Okla.Sup.Ct.R. 1.13. THE GIST OF INITIATIVE PETITION NO. 426, STATE QUESTION NO. 810 IS LEGALLY SUFFICIENT ¶21 Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Combs, Kane, Rowe, JJ., and Reif, S.J., concur. ¶22 Colbert, J., recused.",analysis
+169,894539,1,2,"We first consider Northglen's contention that the trial court lacked subject matter jurisdiction because Brooks did not join all Northglen property owners as parties. Northglen argues that Brooks was required to join all property owners in each affected section before the trial court could render a declaratory judgment and, alternatively, that the trial court was without jurisdiction to render a declaratory judgment interpreting the deed restrictions for Sections Three and Six because property owners from those sections were not represented in the lawsuit. We do not have the benefit of the lower courts' views on jurisdiction because Northglen did not raise the issue either in the trial court or the court of appeals. Northglen contends that the doctrine of fundamental error excuses it from the usual requirements of preservation of the error or briefing of the ... argument because the absence of jurisdiction may be raised for the first time on appeal. We disagree that the absence of parties within the represented sections deprived the court of jurisdiction and therefore reject Northglen's contention as to Sections One, Two, Four and Five; however, because no property owners in Sections Three or Six were joined in the suit, we agree with Northglen that any judgment affecting those sections would be advisory. A No one disputes that the trial court had jurisdiction to declare the rights, status, and other legal relations for the named homeowners, who are interested under a deed, ... written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute.... Tex. Civ. Prac. & Rem.Code §§ 37.003(a) and 37.004(a). The question, then, is not whether jurisdiction is lacking, as Northglen asserts, but whether the trial court should have refused to enter a judgment when a subset of the homeowners was not joined in the lawsuit. See Cooper v. Tex. Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex.1974) ([the] concern is less that of the jurisdiction of a court to proceed and is more a question of whether the court ought to proceed with those who are present). To answer that prudential question, we turn to Rule 39, which governs joinder of persons under the Declaratory Judgment Act. Tex.R. Civ. P. 39; Clear Lake City Water Auth. v. Clear Lake Util., 549 S.W.2d 385, 390 (Tex.1977) (applying Rule 39 to actions under the Declaratory Judgment Act). Rule 39, like the Declaratory Judgment Act, mandates joinder of persons whose interests would be affected by the judgment. See Tex. Civ. Prac. & Rem.Code § 37.006 (When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties. ) (emphasis added); Tex.R. Civ. P. 39(a) (A person who is subject to service of process shall be joined as a party in the action if ... he claims an interest relating to the subject of the action ....) (emphasis added). Rule 39 determines whether a trial court has authority to proceed without joining a person whose presence in the litigation is made mandatory by the Declaratory Judgment Act. Clear Lake City Water Auth., 549 S.W.2d at 390. Rule 39(a)(1) requires the presence of all persons who have an interest in the litigation so that any relief awarded will effectively and completely adjudicate the dispute. In this case, nothing in the rule precluded the trial court from rendering complete relief among Northglen and the eight homeowners who had sued for a declaration of rights. Although the parties continue to litigate its correctness, the trial court's judgment represents a final and complete adjudication of the dispute for the parties who were before the court. See Caldwell v. Callender Lake Prop. Owners Improvement Ass'n, 888 S.W.2d 903, 907 (Tex.App.-Texarkana 1994, writ denied). Rule 39(a)(2) relates to situations in which the absent party: [C]laims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. Tex.R. Civ. P. 39. Section 37.006(a) of the Declaratory Judgment Act, which provides that a trial court's declaration does not prejudice the rights of any person not a party to the proceeding, dispenses with the first of these concerns. See Tex. Civ. Prac. & Rem.Code § 37.006(a). Any non-joined homeowner would be entitled to pursue individual claims contesting Northglen's authority to raise assessments or impose fees, notwithstanding the trial court's judgment in the current case. [2] See Cooper, 513 S.W.2d at 204 ([I]t would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives a court of jurisdiction...). We appreciate the risk that, unless each homeowner is joined in one suit, Northglen may be subject to inconsistent judgments. Tex.R. Civ. P. 39(a)(2)(ii). Northglen's dilemma, however, is the product of its own inaction. Northglen could have sought relief at trial by urging the court, among other things, to abate the case, join absent homeowners, or grant special exceptions. See, e.g., Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982); Dahl v. Hartman, 14 S.W.3d 434, 436 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Adams v. Owens, 519 S.W.2d 260, 261 (Tex.Civ.App.-Beaumont 1975, writ ref'd n.r.e.); Pan Am. Petroleum Corp. v. Vines, 459 S.W.2d 911, 912 (Tex.Civ.App.1970, writ ref'd n.r.e.); Texaco, Inc. v. Lettermann, 343 S.W.2d 726, 733 (Tex.Civ.App.-Amarillo, 1961, writ ref'd n.r.e.). Instead, it waited until the case reached this Court to first raise the specter of multiple or inconsistent judgments. Northglen counters that the doctrine of fundamental error excuses its failure to preserve error. However, when Rule 39 was amended, a young law professor remarked: Henceforth, it will be rare indeed when an appellate court properly determines that the trial court lacked jurisdiction to adjudicate a dispute when the nonjoining person's absence is raised for the first time on appeal by one of the parties in the trial court, at least insofar as the judgment affects parties who participated in the trial, directly or indirectly, or who purposely bypassed the proceedings. The doctrine of fundamental error should no longer protect persons from the binding force of judgments when they have had an opportunity to raise the absence of the nonjoined person and waived it. William V. Dorsaneo, III, Compulsory Joinder of Parties in Texas, 14 Hous. L.Rev. 345, 369 (1977). We conclude that Northglen had an opportunity to raise the absence of the nonjoined person and waived it. Id.; Tex.R.App. P. 33.1. B Sections Three and Six present a different question — does a trial court have jurisdiction to declare the rights of parties who are not before the court? A declaratory judgment requires a justiciable controversy as to the rights and status of parties actually before the court for adjudication, and the declaration sought must actually resolve the controversy. See, e.g., The M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex.2001); Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 517-18 (Tex.1995). A judicial decision reached without a case or controversy is an advisory opinion, which is barred by the separation of powers provision of the Texas Constitution. Tex. Const. art. II, § 1; see Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex.2002); Texas Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). We must decide, then, whether there is a case or controversy with respect to these sections. Because there are no plaintiffs from Sections Three and Six, there is no person in those sections for whom rights could be declared in this declaratory judgment action. As a consequence, the trial court was without jurisdiction to issue a judgment with respect to those sections, and any opinion interpreting those sections would be purely advisory. Accordingly, we vacate those portions of the lower courts' judgments relating to Sections Three and Six and dismiss those claims for want of jurisdiction. Having resolved Northglen's appellate pleas to the jurisdiction, we reach the merits for Sections One, Two, Four and Five.",jurisdiction
+170,1420164,2,2,"{19} Defendant claims that his convictions must be reversed because they are not supported by substantial evidence. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. See State v. Baca, 1997-NMSC-059, ¶ 14, 124 N.M. 333, 950 P.2d 776. In reviewing the sufficiency of evidence used to support a conviction, we resolve all disputed facts in favor of the State, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary. Id. Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject Defendant's version of the facts. See State v. Salazar, 1997-NMSC-044, ¶¶ 44, 46, 123 N.M. 778, 945 P.2d 996. However, determining the sufficiency of evidence `does require appellate court scrutiny of the evidence and supervision of the jury's fact-finding function to ensure that, indeed, a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction.' Baca, 1997-NMSC-059, ¶ 13, 124 N.M. 333, 950 P.2d 776 (quoting State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992)). We apply these principles to our review of the evidence used to support Defendant's convictions for murder, tampering with evidence, and kidnapping.
+{20} Defendant was convicted of first degree murder under NMSA 1978, § 30-2-1(A)(1) (1994), for the willful, deliberate and premeditated killing of the victim without lawful justification or excuse. The jury was instructed on the elements of willful and deliberate murder in accordance with UJI 14-201 NMRA 1998. These elements are: 1. The defendant killed [the victim]; 2. The killing was with the deliberate intention to take away the life of [the victim]; 3. This happened in New Mexico on or about the 20th day of December, 1994. We conclude that there is sufficient evidence for a rational trier of fact to have found each of the essential elements of this crime beyond a reasonable doubt. {21} At trial, several witnesses testified that they saw the victim alive on the morning of December 20, 1994. The State presented evidence that the victim's body was discovered in a dumpster in Albuquerque between 10:30 and 11:30 p.m. that evening, and that the victim probably was killed within hours of the discovery of her body. This evidence is adequate to support the conclusion that the killing happened on or about the 20th day of December 1994. {22} The State presented several witnesses whose testimony connected Defendant with the crime by establishing that: (1) Defendant was the last person seen with the victim on the date of the killing; (2) the victim was given several hundred dollars in cash the night before she met with Defendant for the last time; (3) Defendant was seen with several hundred dollars in cash after his last meeting with the victim; (4) Defendant told a friend he obtained the cash after killing someone and throwing the body in the trash; (5) Defendant told the arresting officer that he had killed someone in New Mexico; (6) Defendant's recent break-up with the victim provided him with a motive for killing her; (7) prior to the killing, Defendant had threatened to kill the victim after seeing her with another man; (8) on the date of the killing, Defendant told a friend that the victim had gone to Mexico; and (9) Defendant fled New Mexico shortly after he was informed that the victim's body had been discovered. {23} When viewed as a whole in the light most favorable to the State, this evidence is adequate to support the conclusion that Defendant killed the victim. Just because the evidence supporting the conviction was circumstantial does not mean it was not substantial evidence. State v. Duran, 107 N.M. 603, 605, 762 P.2d 890, 892 (1988). Further, just because each component may be insufficient to support the conviction when viewed alone does not mean the evidence cannot combine to form substantial, or even overwhelming, support for the conviction when viewed as a whole. See State v. Motes, 118 N.M. 727, 730, 885 P.2d 648, 651 (1994). {24} The State's medical investigator testified that the victim was killed by ligature strangulation, taped into a fetal position, covered with plastic bags, and placed in a dumpster without identification. According to the medical investigator, it takes at least several minutes to kill a person in this manner. When combined with the evidence concerning Defendant's motive for the killing, this evidence concerning the method used to kill the victim provides adequate support for the conclusion that the killing was with the deliberate intention to take away the life of the victim. See Motes, 118 N.M. at 729-30, 885 P.2d at 650-51 (reasoning that evidence concerning method and motive supported the conclusion that the defendant acted with deliberate intent); cf. State v. Smith, 76 N.M. 477, 482, 416 P.2d 146, 149-50 (1966) (noting that jury may consider the relationship of the parties and the animus of the accused toward the deceased). Thus, there is sufficient evidence to support each element required to sustain Defendant's conviction for first degree murder under Section 30-2-1(A)(1), and we need not consider felony murder as an alternative basis for affirming Defendant's murder conviction.
+{25} Defendant was convicted of tampering with evidence under NMSA 1978, § 30-22-5 (1963). The jury was instructed on the elements of this crime in accordance with UJI 14-2241 NMRA 1998. These elements are: 1. The defendant hid or placed the body of [the victim] in a dumpster; 2. The defendant intended to prevent the apprehension, prosecution or conviction of himself; 3. This happened in New Mexico on or about the 20th day of December, 1994. We conclude that there is sufficient evidence for a rational trier of fact to have found each of the essential elements of this crime beyond a reasonable doubt. {26} According to one of the State's witnesses, on the date the victim's body was discovered, Defendant stated that he had killed someone and thrown the body in the trash. Combined with the other evidence linking Defendant to the murder, it was reasonable for the jury to infer from this statement that Defendant not only killed the victim, but also placed her body in the dumpster. Cf. Duran, 107 N.M. at 605, 762 P.2d at 892 (circumstantial evidence may provide adequate support for first degree murder conviction); Motes, 118 N.M. at 729, 885 P.2d at 650 (same). Further, based upon the evidence that the victim's nude body was found without identification, covered with plastic bags and duct tape, inside a dumpster, it was reasonable for the jury to infer that Defendant intended to prevent his own apprehension, prosecution, or conviction as the victim's murderer. See State v. Roybal, 115 N.M. 27, 33-34, 846 P.2d 333, 339-40 (Ct.App.1992). Thus, there is sufficient evidence to support each element required to sustain Defendant's conviction for tampering with evidence under Section 30-22-5.
+{27} Defendant was convicted of aggravated kidnapping, a first degree felony under NMSA 1978, § 30-4-1(A) and (B) (1973, prior to 1995 amendment), for the unlawful taking, restraining, or confining of the victim by force or deception with the intent that she be held for ransom, confined as a hostage, or held to service against her will, suffering great bodily harm. The jury was instructed on the elements of this crime in accordance with UJI 14-404 NMRA 1996 (withdrawn 1997). [1] These elements are: 1. The defendant took or restrained or confined [the victim] by force or deception; 2. The defendant intended to hold [the victim] for service against her will; 3. The defendant inflicted great bodily harm on [the victim]; 4. This happened in New Mexico on or about the 20th day of December, 1994. During closing arguments at trial, the State asserted that Defendant used force or deception to remove the victim's clothing, and that the held to service requirement was met because [n]obody gets wrapped in duct tape like that for fun. {28} On appeal, the State presents several alternative theories to support Defendant's kidnapping conviction. In particular, the State asserts that when Defendant met with the victim on the morning of December 20, he got her to go along with him through deception or used force to incapacitate her in some way. Also, to satisfy the held to service requirement, the State asserts that Defendant took the victim by force or deception to rob her, rape her, or convince her to break up with Antillon. {29} Applying the kidnapping statute in effect prior to the 1995 amendment, we determine that the evidence is not sufficient to support Defendant's conviction for kidnapping under any of the State's theories. Under this version of the statute, the incidental movement of a victim to a remote location for the purposes of facilitating a murder does not by itself constitute kidnapping. State v. Baca, 120 N.M. 383, 393, 902 P.2d 65, 75 (1995) (citing State v. Vernon, 116 N.M. 737, 741, 867 P.2d 407, 411 (1993)). See generally Timothy J. Snider, Annotation, Validity, Construction, and Application of Hold to Service Provision of Kidnapping Statute, 28 A.L.R.5th 754, 760-61 (1995). The legislature... did not intend that this scenario be construed as kidnapping, as evidenced by the specific enumeration of elements in our kidnapping statute prior to the 1995 amendment. Vernon, 116 N.M. at 741, 867 P.2d at 411. In particular, the benefit conferred on a defendant by killing a victim, or moving the victim to a location where there are fewer witnesses, is not the kind of service contemplated by the kidnapping statute. See id. {30} The State contends that a reasonable juror could still conclude that Defendant benefitted from kidnapping the victim by obtaining money, sexual gratification, or the opportunity to convince her to rekindle their relationship. See State v. Kersey, 120 N.M. 517, 520-21, 903 P.2d 828, 831-32 (1995). The present case is distinguishable from Kersey, however, because there is not substantial evidence that Defendant intended to hold the victim for service, or that he used force or deception to effectuate such an intention prior to the killing. In Kersey, 120 N.M. at 519, 903 P.2d at 830, there was evidence that the kidnapper purchased a pair of handcuffs and a security guard badge prior to the kidnapping. The kidnapper then took the victim from school and handcuffed him under the pretense of being a police detective. Id. The victim was later taken to a remote location where he was stabbed with an ice pick and strangled with an electrical cord. Id. Thus, the jury could reasonably infer from the purchase of the badge and handcuffs that, prior to taking the victim from the school in handcuffs, the kidnapper formed the intent to hold the victim by force or deception. Also, there was conclusive evidence that the force used to take the victim from school was not the same as the force used to kill him. {31} In the present case, however, there is no evidence of when Defendant acquired the means of incapacitating or deceiving the victim, nor is there evidence of how such incapacitation or deception was accomplished. Thus, one can only speculate that, prior to the killing, Defendant formed the intent to hold the victim for service against her will or used force or deception for this purpose. A conclusion based on mere conjecture or surmise will not support a conviction. State v. Bankert, 117 N.M. 614, 618, 875 P.2d 370, 374 (1994); see also State v. Benton, 118 N.M. 614, 615-16, 884 P.2d 505, 506-07 (Ct.App.1994) (The rule requiring that we indulge in all reasonable inferences supporting the conviction still does not permit us to speculate....) (citations omitted); UJI 14-6006 NMRA 1998 (instructing jurors that [y]our verdict should not be based on speculation, guess or conjecture). {32} The fact that there were no defensive wounds on the victim's body, without more, is not adequate to support the conclusion that she was incapacitated and held to service prior to her death. The State's medical investigator admitted that the bruise underneath the victim's scalp probably was too small to support the inference that someone knocked her unconscious, and that he could not tell from the physical evidence whether a separate strangulation, that only rendered the victim unconscious, preceded the victim's death. The medical investigator only discussed the possibility that the victim was bound in duct tape after the killing, not before. {33} The evidence that the victim engaged in sexual activity within twenty-four hours of her death also is not adequate to support the State's kidnapping theories. Unless the victim was incapacitated at the time of the attack, the lack of evidence of defensive wounds or forced removal of the victim's clothing is consistent with consensual sex, and the State admitted during its closing argument that the killing might have begun as a consensual sexual encounter. Further, the State's DNA analysis could not establish that Defendant had sex with the victim on the day of her death. Given the lack of physical evidence presented at trial, a reasonable jury could not have found that Defendant held the victim to service for sexual purposes without relying on speculation. {34} Finally, Defendant's kidnapping conviction does not find adequate support in the fact that the money the victim had received was missing from her body when it was discovered in the dumpster. When robbery is used to satisfy the held to service requirement for kidnapping, the State must show that robbery was the goal of the kidnapping. See Vernon, 116 N.M. at 740, 867 P.2d at 410; State v. Ortega, 112 N.M. 554, 570-71, 817 P.2d 1196, 1212-13 (1991). In this case, the testimony of Defendant's friend, Camacho, was used to support the inference that Defendant had taken the money from the victim. According to Camacho, however, the purpose of the job Defendant told him about was murder, not robbery. Thus, Camacho's testimony supports Defendant's conviction for murder, not kidnapping. {35} As in Benton, 118 N.M. at 616, 884 P.2d at 507, we cannot articulate the analysis by which a rational jury could have found the[ ] elements [of kidnapping] on the basis of the bare-bones evidence presented below. Therefore, we must reverse Defendant's conviction and sentence for kidnapping. Our reversal of Defendant's conviction and sentence for kidnapping makes it unnecessary for us to reach the question of whether Defendant's constitutional right to be free from double jeopardy was violated, or whether any of the other issues raised by Defendant affect his kidnapping conviction.",sufficiency of the evidence
+171,1057780,2,5,"The Defendant next argues that the State did not prove all elements required for convictions of aggravated robbery and robbery. We simply disagree. Because, however, the Defendant is entitled to new trials on grounds that the trial court erred by refusing to grant severances, we will not recount the proof offered at trial in support of each conviction. In its appeal, the State argues that the Court of Criminal Appeals erred by modifying the conviction for the July 11th incident from robbery to theft. We have decided to resolve this issue as a part of our remand. Initially, as we address the issue presented by the State, we keep certain well-established principles in mind. When considering a sufficiency of the evidence question on appeal, the State must be afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn therefrom. State v. Vasques, 221 S.W.3d 514, 521 (Tenn.2007). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Id. When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R.App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn.1983). The same standard applies even if the evidence is entirely circumstantial. State v. Brown, 551 S.W.2d 329, 330 (Tenn.1977). Because a verdict of guilt removes the presumption of innocence and raises a presumption of guilt, the criminal defendant bears the burden on appeal of showing that the evidence was legally insufficient. State v. Evans, 838 S.W.2d 185, 191 (Tenn.1992). The Defendant was convicted of two counts of robbery, an offense defined as the intentional or knowing theft of property from the person of another by violence or putting the person in fear.  Tenn.Code Ann. § 39-13-401 (2003) (emphasis added). The fear referred to in the statute is a fear of `bodily danger or impending peril to the person,' which intimidates and promotes submission to the theft of the property. State v. Bowles, 52 S.W.3d 69, 80 (Tenn.2001) (quoting Britt v. State, 26 Tenn. (7 Hum.) 45 (1846)). The Court of Criminal Appeals found that the Defendant had fulfilled his burden by demonstrating that the State failed to establish the requisite element of fear on the part of the victim in the July 11th offense because Crain refused to so testify. The majority ruled that the victim had to explicitly acknowledge his fear before the State had met its burden of proof. As indicated, the elements of any crime may be established by circumstantial evidence. Stinson v. State, 181 Tenn. 172, 180 S.W.2d 883, 885 (1944). Indeed, Crain contended in this instance that he was not really afraid: I was still just mad that it was happening. When a victim denies fear under circumstances such as these, the determination of this element hinges on a question of witness credibility, which is an issue within the province of the jury. State v. Wilson, 924 S.W.2d 648, 649 (Tenn.1996). The test may be properly described as objective rather than subjective in nature. Crain testified that he had not seen a weapon, but he had gleaned from the circumstances that there was a strong possibility that the Defendant was armed. He was aware that other drivers from his company had recently been robbed at gunpoint. According to Crain, the Defendant threatened to shoot and he reached for his pocket or belt. While Crain did not explicitly acknowledge that he was afraid, he did testify that he was more concerned — the fact that if something happened to me, my kids would be without a father. A reasonable inference is that the actions of the Defendant caused Crain to consider the possibility of his own death. He acquiesced only after the Defendant threatened to shoot him. When the robbery was over, Crain directed his co-worker to call the police. In our view, these are circumstances that the jury could have considered in determining that the victim was placed in fear during the course of the robbery. As aptly pointed out in the dissent to the Court of Criminal Appeals opinion, the victim's actions spoke louder than his words. State v. Dotson, No. W2005-01594-CCA-R3-CD, 2006 WL 3438161, at  (Tenn.Crim.App. Nov.29, 2006) (Williams, J., dissenting); see also People v. Renteria, 61 Cal.2d 497, 39 Cal.Rptr. 213, 393 P.2d 413, 414 (1964) (finding that the circumstances surrounding a robbery supported the trial court's finding that the victim would not have given his employer's money to defendant unless he was in fear, in spite of his `bravado' answer in court). Fear could have been inferred from the circumstances. [14] In our assessment, the jury's task is to determine from all of the evidence whether the victim was placed in fear by the conduct of a defendant or should have been under the circumstances. A rational jury, weighing all the evidence presented at trial, could have found beyond a reasonable doubt that Crain was actually placed in fear. See Tenn. R.App. P. 13(e); Williams, 657 S.W.2d at 410. Thus, the Court of Criminal Appeals erred by reducing Dotson's robbery conviction to theft based upon the content of Crain's testimony.",sufficiency of the evidence
+172,1583163,1,4,"A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Kenley v. Neth, 271 Neb. 402, 712 N.W.2d 251 (2006). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the lower court. Id.",standard of review
+173,2794540,1,3,"When we consider a declaratory judgment in tandem with the grant of summary judgment, and no material facts are in dispute, we consider “whether that declaration was correct as a matter of law.” Springer v. Erie Ins. Exchange, 439 Md. 142, 155–56, 94 A.3d 75, 83 (2014) (internal quotations omitted); see Catalyst Health Solutions, Inc. v. Magill, 414 Md. 457, 471, 995 A.2d 960, 968 (2010). Whether the trial court granted properly summary judgment is a question of law, which we review without deference. River Walk Apartments, LLC v. Twigg, 396 Md. 527, 541–42, 914 A.2d 770, 778–79 (2007); see Standard Fire Ins. Co. v. Berrett, 395 Md. 439, 450, 910 A.2d 1072, 1079 (2006).",standard of review
+174,1832275,1,2,"Our standard of review in an appeal from a district court decision in an election contest is de novo. Devine v. Wonderlich, 268 N.W.2d 620, 623 (Iowa 1978) (Appeal lies from the contest court to district court which hears the appeal in equity and determines anew all questions in the case. Hence our review is also de novo. (Citation omitted.)).",standard of review
+175,3164691,1,3,"Huber appeals several of the lower court’s decisions on summary judgment. Appeals from an order of summary judgment are reviewed de novo, and this Court’s standard of review is the same as the standard used by the trial court in ruling on a motion for summary judgment. Summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with the affidavits, if 3 Huber also raised the issue of whether the district court erred in dismissing his wrongful termination claim. However, this Court “will not consider an issue not ‘supported by argument and authority in the opening brief.’” Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010) (quoting Jorgensen v. Coppedge, 145 Idaho 524, 528, 181 P.3d 450, 454 (2008)). Although Huber specifically listed the dismissal of his wrongful termination claim as an issue on appeal, he did not provide any form of argument or authority to support it. “Regardless of whether an issue is explicitly set forth in the party’s brief as one of the issues on appeal if the issue is only mentioned in passing and not supported by any cogent argument or authority, it cannot be considered by this Court.” Id. Therefore, we will not address this issue. 6 any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. I.R.C.P. 56(c). Under this standard, disputed facts are construed in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are drawn in favor of the non-moving party. Where the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review. Trotter v. Bank of N.Y. Mellon, 152 Idaho 842, 845–46, 275 P.3d 857, 860–61 (2012) (footnotes, internal case citations, and internal quotation marks omitted). Additionally, Huber appeals the district court’s determination at trial that Huber forfeited the goodwill benefit under the CSO. When reviewing a trial court’s conclusions following a bench trial, our review is limited to ascertaining whether the evidence supports the findings of fact, and whether the findings support the conclusions of law. Since it is the province of the trial court to weigh conflicting evidence and testimony and to judge the credibility of witnesses, this Court will liberally construe the trial court’s findings of fact in favor of the judgment entered. These findings of fact will not be set aside unless the trial court’s findings are clearly erroneous. If the trial court based its findings on substantial evidence, even if the evidence is conflicting, this Court will not overturn those findings on appeal. Furthermore, this Court will not substitute its view of the facts for that of the trial court. However, we exercise free review over matters of law. Vreeken v. Lockwood Eng’g, B.V., 148 Idaho 89, 108, 218 P.3d 1150, 1169 (2009) (internal citations and quotation marks omitted). The other issues on appeal are reviewed for abuse of discretion. Oakes v. Boise Heart Clinic Physicians, PLLC, 152 Idaho 540, 542–43, 272 P.3d 512, 514–15 (2012) (the determination of who is a prevailing party is reviewed for abuse of discretion); Climax, LLC v. Snake River Oncology of E. Idaho, PLLC, 149 Idaho 791, 794, 241 P.3d 964, 967 (2010) (rulings on equitable remedies are reviewed for abuse of discretion); Farmers Ins. Exch. v. Tucker, 142 Idaho 191, 193, 125 P.3d 1067, 1069 (2005) (denial of a motion to amend a complaint is reviewed for abuse of discretion); Dillon v. Montgomery, 138 Idaho 614, 617, 67 P.3d 93, 96 (2003) (an award of prejudgment interest is reviewed for abuse of discretion). When examining whether a district court abused its discretion, this Court considers whether the district court: (1) perceived the issue as one of discretion; (2) acted within the outer boundaries of that discretion and consistently within the applicable legal standards; and (3) reached its decision by an exercise of reason. Oakes, 152 Idaho at 543, 272 P.3d at 515. 7",standard of review
+176,2164291,1,5,"We reverse the Court of Appeals and remand to the trial court for further proceedings consistent with this opinion. DICKSON, J., concurs. SULLIVAN, J., concurs in result believing that there was sufficient evidence of fraudulent concealment to deny Weinberg's motion for summary judgment. BOEHM, J., concurs in result, agreeing with SULLIVAN, J. SHEPARD, C.J., not participating.",conclusion
+177,885931,1,2,"¶ 9 We review a summary judgment de novo, employing the same standards used by the trial court: first, whether genuine issues of material fact exist and, if not, whether the moving party is entitled to judgment as a matter of law. See Rule 56(c), M.R.Civ.P.; Winslow v. Montana Rail Link, Inc., 2000 MT 292, ¶ 38, 302 Mont. 289, ¶ 38, 16 P.3d 992, ¶ 38. Here, Hunter does not assert the existence of any genuine issue of material fact, but challenges only certain of the District Court's conclusions of law. We review a district court's conclusions of law to determine if they are correct. Heller v. Gremaux, 2002 MT 199, ¶ 7, 311 Mont. 178, ¶ 7, 53 P.3d 1259, ¶ 7.",standard of review
+178,6352849,1,1,"This court’s jurisdiction is pursuant to Arkansas Rule of Appellate Procedure–Civil 2(a)(10), which permits an interlocutory appeal of an order denying a motion to dismiss based on the defense of sovereign immunity.",jurisdiction
+179,1932220,1,3,"¶ 70. An uncertified copy of a prior judgment of conviction may be used by the state to meet its burden of proving a convicted defendant's status as a habitual criminal under Wis. Stat. § 939.62. Wisconsin Stat. § 973.12(1) does not require the use of only certified copies of judgments of conviction. Furthermore, the rules of evidence do not apply to documents offered during a circuit court's presentence determination of whether a qualifying prior conviction exists. However, the state continues to bear the full burden of proof and it must offer proof beyond a reasonable doubt of such a conviction. The better practice is to offer certified copies of judgments of conviction. ¶ 71. The court of appeals erred in concluding that an uncertified, yet uncontested, copy of a judgment of conviction may not be used by the state under § 973.12(1). The circuit court's proper consideration of the copy of the judgment of conviction in the court record, along with the totality of the record surrounding this document, supported a finding that the State proved the requirements of § 939.62 beyond a reasonable doubt. Accordingly, we reverse the decision of the court of appeals and reinstate the Kenosha County Circuit Court's January 10, 2001, order denying Saunders' motion for post-conviction relief. By the Court. —The decision of the court of appeals is reversed. ¶ 72. ANN WALSH BRADLEY, J. (dissenting). This case turns on the majority's interpretation of a post-verdict exchange between the circuit court and defense counsel. It interprets the exchange as a defense stipulation to the mode of proof for prior convictions. This interpretation is the linchpin of the majority opinion. Without it, the opinion collapses. Because I conclude that the majority improperly recasts a cursory and ambiguous exchange into a precise stipulation, and erroneously determines that a copy of an uncertified judgment of conviction is sufficient to prove repeater status, I respectfully dissent.",conclusion
+180,1206072,2,3,"The jury found and the court of appeals agreed that Illinois Mutual breached its implied covenant of good faith and fair dealing by denying, without a reasonable basis, Gurule's claim. See Rawlings, 151 Ariz. at 156, 726 P.2d at 572. Thus, it has been established that Illinois Mutual's conduct was wrongful and that extracontractual damages were warranted. The only question before us is whether, in addition to breaching its covenant of good faith and fair dealing, there is sufficient evidence from which a jury could infer that Illinois Mutual acted with an evil mind. Relying primarily on Little v. Stuyvesant Life Insurance Co., 67 Cal. App.3d 451, 136 Cal. Rptr. 653, Gurule argues that the evidence in this case is sufficient to infer the required evil mind. We disagree. Despite superficial similarities, Little actually illustrates why punitive damages are inappropriate in this case. In Little, as here, the insurer terminated disability benefits on the basis of two independent medical examinations. Unlike this case, however, Little's claim was supported by overwhelming objective medical evidence of disability. 67 Cal. App.3d at 457, 136 Cal. Rptr. at 656. Prior to the onset of her disability, Little had two lumbar fusions and two myelograms, was only able to work in a brace, and was on pain medication. Little's final disability was attributed to nerve root irritation. After the claimed onset of disability, Little had four major surgical procedures, including three cervical anterior body fusions and a surgery to relieve nerve root pressure caused by scar tissue. The life insurer for the program waived premiums because of disability; Little also was found totally disabled by both the state and the Social Security Administration. She took daily medication for pain and was unable to perform even such simple tasks as grocery shopping. She was unable to sit or stand, hold a book, or perform any sustained activity. She spent hours each day in a jacuzzi to relieve her pain. Defendant had full knowledge of Little's condition, and of the medical evidence supporting her disability claim. Defendant nevertheless insisted on two independent medical examinations; it provided neither of the doctors performing these examinations with the voluminous information in its files from Little's doctors. [5] The second examining doctor determined that Little was not disabled because she could perform `a half day's work as a receptionist' and had the ability to `open ... a drawer and put a file in and close it.' 67 Cal. App.3d at 459, 136 Cal. Rptr. at 657. In addition, defendant was aware that Little had lost her home, had borrowed money, and had attempted suicide as a result of her disability. Still, defendant refused to reinstate benefits. 67 Cal. App.3d at 457-61, 136 Cal. Rptr. at 656-58. [6] The difference in medical evidence between Little and this case is critical. In Little, the denial of benefits was outrageous and punitive damages were appropriate because the jury reasonably could infer the requisite intent to harm from the insurer's denial of benefits in the face of overwhelming medical evidence. 67 Cal. App.3d at 462, 136 Cal. Rptr. at 659. Here, on the other hand, Illinois Mutual did not ignore overwhelming medical evidence when it denied Gurule's claim. Gurule's disability resulted from accidental injuries for which he did not immediately seek medical treatment. He first sought a dental examination nineteen days after the accident, and did not consult a physician until 38 days after the accident. Dr. Carlson diagnosed a soft tissue injury; although Gurule displayed some signs of nerve root irritation, very little objective evidence of disability was ever conveyed to Illinois Mutual. Gurule's EMG's were all normal, including those performed by his doctor. Even Dr. Carlson stated at several points that Gurule probably would be able to return to work within a few months. As it turned out, Drs. Carlson, Soscia, and Feingold were too optimistic. Nevertheless, there is no overwhelming medical evidence to support the conclusion that Illinois Mutual knew Gurule was disabled and denied benefits with conscious indifference to Gurule's rights and the significant harm caused by its conduct. There is no evidence to justify an inference that Illinois Mutual arranged for independent medical examinations with disreputable doctors, tried to influence the doctors' opinions, or purposefully withheld information from them. In this case, unlike Little, the facts regarding the nature of the accident, the ensuing medical treatment, and the handling of Gurule's file are insufficient to infer that Illinois Mutual consciously disregarded its obligations to Gurule. The facts strongly suggest, on the other hand, that Illinois Mutual tried to play fairly with Gurule. Here, unlike Little, the insurer applied a reasonable definition of disability, reinstated the claim when pressed to do so, and, at times, resolved conflicting medical opinions in favor of its insured. Illinois Mutual apparently was willing to continue paying disability benefits until the more strict policy definition of disability applied. In addition, Illinois Mutual paid Gurule benefits even when substantial evidence suggested that Gurule was not disabled. Its decisions to terminate benefits were based on apparently reputable medical evidence that arguably supported its position, and it explained its actions to Gurule, giving him a reasonable opportunity to respond. It responded, albeit grudgingly, to Gurule's requests for reconsideration. In sum, although the jury found that Illinois Mutual had insufficient grounds to deny Gurule benefits, we do not believe the evidence is sufficient to allow a reasonable juror to infer that Illinois Mutual acted with an intent to injure, or in conscious disregard of Gurule's rights under his policy. Compare Filasky, supra ; Linthicum, supra; Farr v. Transamerica Occidental Life Insurance Co., 145 Ariz. 1, 699 P.2d 376 (App. 1984); Maxwell v. Aetna Life Insurance Co., 143 Ariz. 205, 693 P.2d 348 (App. 1984). [7] Illinois Mutual did, no doubt, consider its own interests in denying Gurule's claim. Self interest is not, however, evidence of an evil mind.",sufficiency of the evidence
+181,1346611,1,2,Appellant timely filed a notice of appeal and presents the following issues for review: I. Did the trial court err in granting summary judgment because it found no legally cognizable duty owed by Respondent to Appellant? II. Did the trial court err in granting summary judgment as to Appellant's cause of action for intentional infliction of emotional distress? III. Did the trial court err in granting summary judgment as to Appellant's cause of action for legal malpractice? IV. Did the trial court err in granting summary judgment as to Appellant's cause of action for abuse of process? V. Did the trial court err in granting summary judgment because it found no conflict of interest between Respondent and Appellant?,issues
+182,2049284,1,9,We affirm the orders of the Family Court and remand the record of this case thereto. Justice INDEGLIA took no part in the consideration or decision of this appeal.,conclusion
+183,1846577,1,5,"¶ 43. Because the chancellor erred in his determination of which property was marital property, we reverse the chancellor's distribution of marital property, and we remand this case for a proper identification, valuation, and equitable distribution of marital property consistent with this opinion. In all other respects, we affirm the judgment below. ¶ 44. AFFIRMED IN PART; REVERSED AND REMANDED IN PART. PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.",conclusion
+184,1881605,1,1,"Tadeusz Radecki submitted an application to Mutual of Omaha Insurance Company (Mutual of Omaha) for long-term disability benefits, claiming that he was totally disabled due to a major depressive episode. Mutual of Omaha denied Radecki's claim for benefits because it disputed whether he became totally disabled while covered by the policy and because it contended that Radecki's claim was not timely made. Radecki then brought an action against Mutual of Omaha for bad faith and breach of contract, and the case was ultimately tried to a jury. At the close of Radecki's case in chief, the trial court sustained Mutual of Omaha's motion for a directed verdict on the bad faith cause of action because it found that Mutual of Omaha had a reasonable basis for denying the claim as being untimely. The jury returned a verdict in favor of Radecki on the breach of contract cause of action and awarded Radecki damages equal to 24 months of disability benefits. The district court entered judgment on the verdict. On appeal, Radecki asserts that the trial court erred by, inter alia, directing a verdict in favor of Mutual of Omaha on the bad faith cause of action. On cross-appeal, Mutual of Omaha argues that the trial court erred in overruling its motions for a directed verdict and judgment notwithstanding the verdict on the breach of contract cause of action. Because we determine that Mutual of Omaha did not engage in bad faith as a matter of law and that there was a factual dispute with respect to the breach of contract action which was properly submitted to the jury, we affirm the judgment of the district court.",introduction
+185,4548896,1,3,"Ineffective Assistance of Counsel Standards. Both of Ely’s assignments of error pertain to alleged ineffective assistance of counsel. We briefly review the legal standards governing such claims before turning to Ely’s specific arguments. [4,5] In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland, supra, to show that counsel’s performance was deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. State v. Privett, 303 Neb. 404, 929 N.W.2d 505 (2019). Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. Id. To show prejudice, the defend­ ant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding - 467 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 would have been different. State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020). Right to Testify. [6,7] We now turn to Ely’s argument that the district court erred by rejecting Ely’s claim that his trial counsel ineffectively failed to advise him of his right to testify. Here, Ely correctly points out that a defendant has a fundamental constitutional right to testify. See State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011). Further, he correctly observes that we have previously stated defense counsel bears the primary responsibility for advising a defendant of his or her right to testify or not to testify, of the strategic implications of each choice, and that the choice is ultimately for the defendant to make. Id. In this case, however, we do not believe the district court erred by concluding that Ely’s trial counsel met this responsibility and thus did not perform deficiently. Although Ely testified in his deposition that he was not advised and did not know he had a right to testify, his counsel testified that this was “absolutely incorrect” and was a “bogus statement.” She testified that when she met with Ely after he decided he wanted to go to trial, “one of the first things [he] said to me was, I can’t take the stand because I have seven or eight felonies.” She testified that she then would have had a conversation with Ely on the risks of testifying as a convicted felon. She additionally testified that Ely was the only person who made the decision not to testify and that no one talked him out of it. The district court resolved the conflicts between Ely’s testimony and that of his counsel and determined that Ely was aware of his right to testify, that his counsel provided advice regarding his testifying, and that Ely made the decision not to do so. The task of resolving such conflicting testimony is within the province of the district court. See State v. AlarconChavez, 295 Neb. 1014, 893 N.W.2d 706 (2017). We can disturb its factual findings only if they are clearly erroneous. See - 468 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 id. We find no clear error here and thus see no basis to disturb the district court’s conclusion that Ely’s counsel did not ineffectively fail to advise him of his right to testify. Self-Representation. This leaves Ely’s argument that he received ineffective assistance of counsel because his counsel failed to argue on direct appeal that his rights to self-representation were violated at trial. Ely claims that if his counsel had raised this issue on appeal, reversal would have been required. He contends that under the U.S. and Nebraska Constitutions, he had a right to represent himself and the district court could not preclude him from doing so based on the fact he faced serious charges or based on its belief that it was in his best interests to be represented by counsel. He also emphasizes that the denial of the right to self-representation has been held to be structural error, not subject to harmless error review. And, according to Ely, if raising this issue would have resulted in his obtaining a new trial, his counsel was deficient for not raising it. [8] Much of what Ely contends regarding the right to selfrepresentation is true. He is correct that a criminal defendant has a constitutional right to waive the assistance of counsel and conduct his or her own defense under the Sixth Amendment and Neb. Const. art. I, § 11. State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017). He also rightly points out that while the waiver must be made knowingly, voluntarily, and intelligently, it need not be prudent. See id. And we have recognized that the denial of the right to self-representation is not subject to harmless error review. See id. Ely says nothing, however, about another crucial aspect of the right to self-representation—the requirement that any assertion of the right be made clearly and unequivocally. In Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), the case in which the U.S. Supreme Court recognized a defendant’s constitutional right to self-representation at trial, it noted that the trial court had - 469 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 forced the defendant in that case to accept representation from his appointed attorney after the defendant “clearly and unequivocally” communicated his desire to represent himself. Courts have thereafter uniformly held that the right to selfrepresentation is triggered only when the defendant clearly and unequivocally requests self-representation. See, e.g., Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994), quoting Faretta, supra (“[t]he right to self-representation does not attach until it is asserted ‘clearly and unequivocally’”). See, also, 3 Wayne R. LaFave et al., Criminal Procedure § 11.5(d) (4th ed. 2015) (collecting cases). The requirement that a request for self-representation be clear and unequivocal has been recognized to serve multiple purposes. In one sense, it protects criminal defendants and their right to counsel. As one court put it, the requirement acts as a backstop for the defendant’s right to counsel, by ensuring that the defendant does not inadvertently waive that right through occasional musings on the benefits of self-representation. . . . Because a defendant normally gives up more than he gains when he elects self-representation, we must be reasonably certain that he in fact wishes to represent himself. Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989) (citation omitted). Not only does the clear and unequivocal requirement benefit criminal defendants, it also protects the criminal justice system as a whole. The need for this protection arises out of the fact that the right to counsel and the right to self-representation are “mutually exclusive entitlements.” Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992). See, also, U.S. v. Simpson, 845 F.3d 1039, 1046 (10th Cir. 2017) (stating that right to self-representation “lies in tension with the Sixth Amendment right to counsel”). Left unchecked, the conflicting nature of these rights could be abused. Defendants might waver between requests for counsel and self-representation or make requests that are unclear as to their desire for representation - 470 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 and thereby manufacture an argument for appellate reversal no matter how the trial court rules. See, e.g., Simpson, 845 F.3d at 1047 (“[w]ithout a clear and unequivocal request, the [trial] court would face a dilemma, for an equivocal demand creates a potential ground for reversal however the trial court rules”); Cross v. U.S., 893 F.2d 1287, 1290 (11th Cir. 1990) (“[i]n recognition of . . . the knowledge that shrewd litigants can exploit this difficult constitutional area by making ambiguous self-representation claims to inject error into the record, this Court has required an individual to clearly and unequivocally assert the desire to represent himself”). The clear and unequivocal requirement “resolves this dilemma by forcing the defendant to make an explicit choice.” Adams, 875 F.2d at 1444. If no such choice is made, the defendant is presumed to have invoked the right to counsel and not the right to selfrepresentation. Id. We discuss the clear and unequivocal requirement at length here because we do not believe Ely clearly and unequivocally asserted that he wished to represent himself. To be sure, Ely’s motion filed August 21, 2012, included a statement that he wished to represent himself, a statement he repeated at the hearing on that motion. Viewed in context, however, we do not believe these statements constitute an unequivocal assertion that Ely wished to waive his right to counsel and represent himself at trial. We believe this is the case for multiple reasons we will explain below. First, we believe Ely’s request to represent himself could reasonably be understood as expressing a desire to represent himself only if the court also continued his trial. Several facts lead us to this conclusion. Ely filed the motion in which he asked to represent himself on the same day he filed a motion to continue the trial date. The motion to continue referred to the motion asking for self-representation as a reason for a continuance. Further, at the hearing on the motions, the primary reason Ely identified for wanting to represent himself was his desire to have more time to work on his case. Because of - 471 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 his belief that he did not have enough time before trial, Ely said he felt he “need[ed] to go pro se and to get a continuance.” Later in the hearing, Ely reiterated that he was seeking to dismiss his counsel because he felt he was not ready to go to trial as scheduled. Finally, Ely did not request to represent himself again after the district court denied the motion for a continuance of the October 1, 2012, trial date. Given the foregoing, we believe it is, at the very least, reasonable to understand Ely’s request as a request to represent himself only if the trial date was also continued and thus not an unequivocal assertion of his right to self-representation. We find support for our determination that Ely did not clearly and unequivocally assert the right to self-representation in several federal court decisions. Because its facts are so similar to this case, we believe U.S. v. Simpson, 845 F.3d 1039 (10th Cir. 2017), bears mention first. In that case, the defendant made two motions on the same day, one to represent himself and the other for a continuance of the trial. As the 10th Circuit described the motions, “[r]ead together, [they] stated that [the defendant] wanted to obtain more time for trial and to represent himself at the eventual trial.” Id. at 1047. The trial court denied both motions, and the defendant appealed. The 10th Circuit explained that the defendant’s motions could be understood as requesting self-representation even if the motion for continuance was denied, but that they could also be understood as a request for self-representation only if the defendant obtained additional time. Because the defendant never made clear that he wished to represent himself even if the continuance was denied (and it was), the court held that the defendant had not clearly and unequivocally asserted a right to selfrepresentation. Like the defendant in Simpson, Ely asked to represent himself, but made the request in conjunction with an unsuccessful request for continuance of trial and did not make clear that he wished to represent himself if he did not obtain a continuance. - 472 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 Other recent federal decisions have found a defendant did not clearly and unequivocally request self-representation for reasons similar to those identified in Simpson. In U.S. v. Vanga, 717 Fed. Appx. 726 (9th Cir. 2018), the U.S. Court of Appeals for the Ninth Circuit held that conditions a defendant placed on his self-representation request, including obtaining a continuance, rendered his request equivocal. In U.S. v. Edwards, 535 Fed. Appx. 285 (4th Cir. 2013), the U.S. Court of Appeals for the Fourth Circuit held that a defendant did not clearly and unequivocally assert the right to self-representation. In Edwards, the defendant informed the court that he was “‘reluctantly’” asking the court to represent himself and that he “‘just fe[lt] like [he had] to represent [him]self,’” 535 Fed. Appx. at 287 (emphasis omitted), expressions that are similar to Ely’s statement that in light of his belief that he needed more time to prepare for trial, “I feel like I need to go pro se and to get a continuance.” Alternatively, we believe Ely did not clearly and unequivocally assert that he wished to represent himself for another reason: It is not clear that Ely wished to represent himself even if the district court did not appoint counsel to assist him in some fashion. The Sixth Amendment has been interpreted to confer a right to counsel and a right to self-representation, but there is no constitutional right to “hybrid” representation, in which the defendant both acts as his or her own counsel and is represented by an attorney. See McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); U.S. v. Callwood, 66 F.3d 1110 (10th Cir. 1995). While a court has discretion to appoint standby counsel to assist a defendant, there is no constitutional right to such an arrangement. See U.S. v. Webster, 84 F.3d 1056 (8th Cir. 1996). Because there is no constitutional right to hybrid representation, some courts have held that defendants do not clearly and unequivocally assert the right to self-representation when requests to serve as their own counsel are accompanied by - 473 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 a request to have appointed counsel serve in an advisory or standby capacity. In U.S. v. Kienenberger, 13 F.3d 1354 (9th Cir. 1994), the U.S. Court of Appeals for the Ninth Circuit held that a defendant did not clearly and unequivocally assert a right to self-representation, because when he asked to serve as his own counsel, he also asked that advisory or standby counsel be appointed to assist on procedural matters. New York’s highest appellate court recently reached the same conclusion. It reasoned that because the defendant had consistently requested standby counsel—to which he had no constitutional right— he had not unequivocally asked to proceed without counsel. People v. Silburn, 31 N.Y.3d 144, 98 N.E.3d 696, 74 N.Y.S.3d 781 (2018). In contrast to Kienenberger and Silburn, some courts have held that it is possible for a defendant to request standby counsel and nevertheless unequivocally assert the right to selfrepresentation. See, e.g., U.S. v. Baker, 84 F.3d 1263 (10th Cir. 1996); People v. Hicks, 259 Mich. App. 518, 675 N.W.2d 599 (2003). But even assuming that is a possibility, we do not believe Ely did so here. As we have noted, Ely’s motion requesting that he be allowed to represent himself also requested that counsel be appointed to assist him when he had questions. On its face then, Ely’s motion sought some type of hybrid arrangement in which he served as his own counsel but appointed counsel remained to assist him. Ely did not make clear either in his motion or at the hearing that even if his request for such a hybrid arrangement was denied, he still wanted to waive his right to counsel and represent himself. Furthermore, in Ely’s motion, he admitted that the issues in his case were complex and beyond the scope of his legal knowledge. We recognize that the absence of technical legal knowledge is not, in itself, a valid reason to deny a properly asserted request for self-representation. See, e.g., Jones v. Norman, 633 F.3d 661 (8th Cir. 2011) (holding that it was improper to deny defendant’s request to represent - 474 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 himself on grounds that defendant was not familiar with rules of criminal procedure). Here, however, we believe Ely’s recognition that he lacked the legal knowledge to effectively represent himself casts considerable doubt on any notion that he actually wanted to represent himself in the absence of counsel to advise him. Where there is doubt as to whether a defendant actually desired to waive his right to counsel and invoke his or her right to self-representation, the request cannot be fairly described as clear and unequivocal. Because Ely did not clearly and unequivocally assert his right to self-representation, we agree with the district court that any argument on appeal that his right to self-representation was violated stood no chance of success. Because Ely cannot demonstrate the requisite prejudice, his claim that his counsel should have argued on appeal that his right to selfrepresentation was violated at trial was properly rejected.",analysis
+186,1837614,1,2,"In support of his argument that there was insufficient evidence to convict him of vehicular homicide, Dalton points out he did not drive the vehicle, nor did he aid and abet in the driving of the vehicle. He also claims there is insufficient proof he was the proximate cause of Peek's death; Burnsworth's actions, he alleges, intervened and broke the causal chain.
+Our standard of review in a sufficiency of the evidence challenge is for errors at law. State v. Spies, 672 N.W.2d 792, 796 (Iowa 2003). The district court's finding of guilt is binding upon us unless we find there was not substantial evidence in the record to support such a finding. In determining whether there was substantial evidence, we review the record evidence in the light most favorable to the State. Substantial evidence means such evidence as could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001) (quoting State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993)). In reviewing the record evidence in the light most favorable to the State, we must consider all the record evidence, not just the evidence supporting guilt. Id.
+The so-called reckless driving alternative of Iowa's vehicular homicide law states: A person commits a class C felony when the person unintentionally causes the death of another by ... ( a ) Driving a motor vehicle in a reckless manner with willful or wanton disregard for the safety of persons or property, in violation of section 321.277. Iowa Code § 707.6A(2)( a ); see Sutton, 636 N.W.2d at 110 (characterizing Iowa Code § 707.6A(2)( a ) as the reckless driving alternative of Iowa's vehicular homicide law). Iowa Code section 321.277, in turn, states Any person who drives any vehicle in such manner as to indicate either a willful or a wanton disregard for the safety of persons or property is guilty of reckless driving[, a simple misdemeanor]. Iowa Code § 321.277. As these two provisions of the Iowa Code and our cases clearly indicate, recklessness, not ordinary negligence, must be proven in order to sustain a conviction for vehicular homicide under section 707.6A(2)( a ). See Sutton, 636 N.W.2d at 110-112 (clarifying recent cases to show the reckless driving alternative of Iowa's vehicular homicide law requires more than ordinary negligence). That is, the State must prove the defendant engaged in conduct `fraught with a high degree of danger,' conduct so obviously dangerous that the defendant knew or should have foreseen that harm would flow from it. Id. at 112 (quoting Torres, 495 N.W.2d at 681). Of course, Melvin Dalton was not the driver of the truck, but a passenger. The State thus pled an aiding and abetting theory, upon which the district court relied in finding Dalton guilty. [1] In order to sustain his conviction for vehicular homicide on an aiding and abetting theory, there must be substantial evidence Melvin Dalton assented to or lent countenance and approval to the criminal act either by active participation or by some manner encouraging it prior to or at the time of its commission. Id. (citations omitted). Where a passenger, convicted of aiding and abetting vehicular homicide, challenges the sufficiency of the evidence, we follow a two-step analysis. See id. at 112-13 (in determining whether passenger aided and abetted vehicular homicide, court first considers whether driver acted recklessly before focusing upon passenger's conduct). First, we must determine whether the driver of the vehicle committed the underlying offense; that is, the driver must have violated Iowa Code section 707.6A(2)( a ). See id. Second, there must be sufficient evidence to show the passenger aided and abetted the driver in the commission of the crime; the State must prove the accused assented to or lent countenance and approval to the criminal act either by active participation or by some manner encouraging it prior to or at the time of its commission. See id. at 112 (quoting State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000)). On appeal, Dalton does not challenge the recklessness of the driver, nor should he; driving a truck with a man partially hanging out of its cab, let alone accelerating the truck to a velocity of thirty-five to forty miles per hour, is surely `fraught with a high degree of danger,' conduct so obviously dangerous that the defendant knew or should have foreseen that harm would flow from it. Id. (quoting Torres, 495 N.W.2d at 681); see, e.g., State v. Begey, 672 N.W.2d 747, 749-50 (Iowa 2003) (driving car with a man on its hood, accelerating, and slamming on the brakes is reckless). The legislature has, for good reasons, outlawed such behavior, which a civilized society cannot tolerate, no matter how ubiquitous it may appear in movies and on television.
+Dalton claims, however, that there is not substantial evidence to show he aided and abetted the reckless driving which resulted in Peek's unintentional death. Dalton maintains there is no proof he aided and abetted his brother in the driving of the vehicle; driving, he alleges, is an element of the crime for which he was convicted. The crime at issue, however, is aiding and abetting vehicular homicide, not driving. Therefore, the State need only prove Dalton assented to or lent countenance and approval to the criminal act [vehicular homicide] either by active participation or by some manner encouraging it prior to or at the time of its commission. Sutton, 636 N.W.2d at 112. We have explicitly approved of vicarious liability for vehicular homicide. State v. Satern, 516 N.W.2d 839, 842-45 (Iowa 1994). We have also held that one need not drive a vehicle or physically assist the driver in doing so in order to actively participate or encourage a crime which requires operating a motor vehicle at the time of its commission. See, e.g., State v. Storms, 233 Iowa 655, 657, 10 N.W.2d 53, 54 (1943) (encouraging an intoxicated person to drive prohibited). Viewing the evidence in the light most favorable to the State, we think a rational juror could find Dalton actively participat[ed] or by some manner encourage[ed vehicular homicide] prior to or at the time of its commission. Sutton, 636 N.W.2d at 112. Even though Melvin Dalton was not driving the truck, he actively participated in the commission of the crime. Dalton joined the driver in punching Peek as they went down the road. As the truck reached speeds of thirty-five to forty miles per hour, Dalton punched and kicked Peek until he fell from the truck to his death.
+In his next assignment of error, Dalton claims the State failed to prove, beyond a reasonable doubt, that he was a proximate cause of Peek's death. Dalton contends the evidence suggests Peek's friend, Burnsworth, caused Peek's injuries by ramming the truck with his car. Dalton's contention that Burnsworth's actions relieve him of criminal liability is erroneous, for two reasons. First, Dalton's argument is based upon a view of the facts which is supported by only one witness. The minutes of testimony, upon which Dalton was convicted, contained different and conflicting descriptions of Burnsworth's actions. Another witness described Burnsworth's car as being knocked around by the truck; police officers were prepared to testify Melvin Dalton was identified [by witnesses] as striking and/or kicking Peek until Peek fell or was pushed from the truck into the street (emphasis added); still other witnesses admitted there was contact between the two vehicles, but did not state or imply that the truck caused Peek's fall. A fact-finder, of course, may choose to believe one witness and not another. State v. McPhillips, 580 N.W.2d 748, 753 (Iowa 1998). Viewing the evidence in the light most favorable to the State, we conclude a rational trier of fact could find Burnsworth's actions did not contribute to Peek's death. Moreover, even if we were to assume Burnsworth rammed the truck, there is no evidence Burnsworth was the sole proximate cause of Peek's death. [F]or an intervening act to relieve a defendant of criminal responsibility for homicide, the intervening act must be the sole proximate cause of death. Begey, 672 N.W.2d at 750 (quoting State v. Garcia, 616 N.W.2d 594, 597 (Iowa 2000)). In the context of a homicide case, proximate cause is a cause which, in a natural and continuous sequence and unbroken by any new and independent cause, produces the injury, without which the injury would not have occurred and from which a person of ordinary prudence could have reasonably foreseen that such a result, or a similar injurious result, was probable under the facts as they existed.... If it appears that the act of the accused was not the proximate cause of the death for which such person is being prosecuted, but that another cause intervened, with which he or she was in no way connected, and but for which death would not have occurred, such supervening cause is a good defense to the charge of homicide. 40 Am.Jur.2d Homicide §§ 12, 16, at 462, 465 (1999) (emphasis added, footnotes omitted). We recently rejected an argument similar to Dalton's in Begey. In Begey, the defendant drove a car with a man on the hood. 672 N.W.2d at 748. The man ultimately hit the ground and died, and the defendant was convicted of vehicular homicide. Id. at 749. On appeal, the defendant claimed there was not sufficient evidence to show she was a proximate cause of the victim's death, because there was evidence the victim stepped off the car's hood while it was moving. Id. at 750. We noted, however, that there was conflicting evidence about how the victim ended up on the ground dead: contrary to the defendant's version of the events, there was substantial evidence she accelerated the car with the victim on the hood and then slammed on the brakes, throwing [him] off the car hood. Id. We held the the jury was free to accept the State's version. Id.. Responding to the defendant's claim that the victim's actions negated proximate cause and relieved her of criminal responsibility, we also stated, in the alternative, that [e]ven assuming the victim's act was an intervening cause of his death, it was not the sole proximate cause because [the defendant] played a significant role in the event. Under Garcia the victim's actions could not be the sole proximate cause of his death. Id. (citing Garcia, 616 N.W.2d at 597). The same analysis applies here: just as we rejected the argument in Begey that the victim's own actions negated proximate cause and thereby relieved the defendant of criminal responsibility, so too must we here reject any contention the actions of a third party, Burnsworth, did the same in this case. The State sufficiently proved Dalton was a proximate cause of Peek's death. Dalton's own patently reckless conduct clearly played a significant role in Peek's death.",sufficiency of the evidence
+187,1679113,1,9,"Did the trial court err by refusing to remove Eldredge as trustee of the Henrietta Sandquist Trust? Bollinger claims the trial court erred by refusing to remove Eldredge as trustee of the testamentary trust. She argues that Eldredge has not performed her duties as trustee because of her status as secondary beneficiary. Bollinger failed to submit proposed findings or objections to Eldredge's proposed findings of fact in a timely manner. As a result, our scope of review is limited. See SDCL 15-6-52(a). The late filing of proposed findings or objections to an opponent's proposed findings limits this court's review on appeal to `whether the findings of fact support the conclusions of law and judgment.' Shoop v. Shoop, 460 N.W.2d 721, 724 (S.D.1990) (quoting GMS, Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442, 443 (S.D.1983)); accord Burke v. Lead-Deadwood Sch. Dist. No. 40-1, 347 N.W.2d 343 (S.D.1984). `[T]he facts are considered conclusive and may not be challenged.' Shoop at 724 (quoting Massey Ferguson Credit Corp. v. Bice, 450 N.W.2d 435, 444 (S.D. 1990)). The following findings support the trial court's conclusion retaining Eldredge as trustee:",issues
+188,4522307,1,3,"Gomez argues that his conviction must be overturned because the State introduced insufficient evidence that he was served with the order affirming the ex parte protection order. Gomez’ argument rests on two propositions: (1) that personal service of the protection order is an essential element of the crime of which he was convicted and (2) that the record contains insufficient evidence of such personal service. As we will explain, we generally agree with Gomez on the former proposition but disagree on the latter. - 226 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GOMEZ Cite as 305 Neb. 222 Elements of Offense. Gomez was charged with and convicted of violating Neb. Rev. Stat. § 42-924(4) (Cum. Supp. 2018). That subsection provides as follows: Any person who knowingly violates a protection order issued pursuant to this section or section 42-931 after service or notice as described in subsection (2) of section 42-926 shall be guilty of a Class I misdemeanor, except that any person convicted of violating such order who has a prior conviction for violating a protection order shall be guilty of a Class IV felony. [2] In Nebraska, all crimes are statutory, and no act is criminal unless the Legislature has in express terms declared it to be so. State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019). Accordingly, to determine the elements of a crime, we look to the text of the operative statute. Id. Section 42-924(4) makes the knowing violation of certain protection orders a crime. By its terms, the statute requires proof of the following: (1) service or notice as described in Neb. Rev. Stat. § 42-926(2) (Reissue 2016) and (2) a subsequent knowing violation of a qualifying protection order. Because the crime can be established with proof of either service or the notice described in § 42-926(2), it is not technically accurate to describe service alone as an essential element of the crime. We do read the statute, however, to make either service or the notice described in § 42-926(2) an essential element. This reading of § 42-924(4) is consistent with our decision in State v. Graff, 282 Neb. 746, 810 N.W.2d 140 (2011). In Graff, we interpreted substantively similar language in a statute governing harassment protection orders to allow for a criminal conviction upon a showing that a defendant knowingly violated a protection order after service. See Neb. Rev. Stat. § 28-311.09(4) (Reissue 2008). We also concluded in Graff that personal service was required because the statute governing service of harassment protection orders required it. See § 28-311.09(9)(a). Similar - 227 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GOMEZ Cite as 305 Neb. 222 language requires personal service of domestic abuse protection orders. See § 42-926(1). Following our reasoning in Graff, we conclude that in cases alleging a violation of § 42-924(4), in which the defendant does not receive the notice described in § 42-926(2), the State must demonstrate that the defendant was personally served with the protection order. Sufficiency of Evidence of Personal Service. While we agree with Gomez that the State was required to demonstrate that he was personally served with the order affirming the ex parte protection order, we cannot agree that there was insufficient evidence of such service. According to Gomez, the only way the State could demonstrate the requisite personal service was through a service return. He also contends that in the service return, the officer must specifically certify that he or she served the protection order. He asserts that the service return offered into evidence by the State is deficient in this respect because it refers generally to a cover sheet with attachments rather than to a protection order. In support of his argument that the State must prove serv­ice in this particular way, Gomez relies on language in § 42-926(1) providing that once a domestic abuse protection order is issued, the clerk of the court is to give it to the sheriff’s office and that upon receipt, the sheriff’s office “shall forthwith serve the protection order upon the respondent and file its return thereon with the clerk of the court which issued the protection order within fourteen days of the issuance of the protection order.” Because the service return here does not refer specifically to service of a protection order, Gomez claims that the sheriff’s office did not “file its return thereon,” as provided in § 42-926. Gomez’ reliance on the provisions in § 42-926 regarding the return of service is misplaced. As discussed above, § 42-924(4) allows a defendant to be convicted if he or she - 228 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GOMEZ Cite as 305 Neb. 222 knowingly violates a domestic abuse protection order after service of the protection order. Gomez is essentially asking us to make punctilious compliance with the service return provisions of § 42-926(1) an essential element of the crime defined in § 42-924(4). But because § 42-924(4) says nothing about the return of service, such an interpretation would run counter to our practice of strictly construing penal statutes and not supplying missing words or sentences to make clear that which is indefinite, or to supply that which is not there. See State v. Duncan, 294 Neb. 162, 882 N.W.2d 650 (2016). We note that it is far from anomalous to permit a party to prove service of civil process even if the process server fails to comply with statutory direction regarding the service return. Both a Nebraska civil procedure statute and the Federal Rules of Civil Procedure provide that the failure to make proof of service or delay in doing so does not affect the validity of the service. See, Neb. Rev. Stat. § 25-507.01 (Reissue 2016); Fed. R. Civ. P. 4(l)(3). Such provisions “prevent[] a defendant who has been properly served from attacking the validity of service on the technical ground of the process server’s failure to make return in timely fashion, or because the return is deficient in some way.” 4B Charles Alan Wright et al., Federal Practice and Procedure § 1130 at 210-11 (4th ed. 2015). The fact that § 42-924(4) allows a defendant to be convicted of violating a domestic abuse protection order upon a showing of service, as opposed to proper return of service, serves the same function here. This leaves only the question of whether there was sufficient evidence that Gomez was served with the order affirming the ex parte protection order. On this question, we do not hesitate to find that there was. The face of the cover sheet indicates that the sheriff’s office was instructed to serve the order affirming the ex parte protection order and the ex parte protection order. Dodge testified that he met Gomez at a local hospital and that he provided Gomez with the attachments to the cover sheet in exhibit 4, i.e., the order affirming the - 229 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GOMEZ Cite as 305 Neb. 222 ex parte protection order and the ex parte protection order. Dodge also testified that he signed the service return indicating he served the cover sheet and attachments on Gomez at a hospital on January 4, 2018. Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could find beyond a reasonable doubt that Gomez was served with the order affirming the ex parte protection order.",analysis
+189,4503326,1,2,"Parties The Bar at the Yard, LLC, doing business as Longwells Restaurant, is a restaurant and bar in Lincoln, Nebraska. Eric Marsh is the owner of Longwells Restaurant. We will refer to The Bar at the Yard, LLC; Longwells Restaurant; and Marsh collectively as “Longwells.” Kevin Drought worked as the general manager of Longwells from October 2013 to October 22, 2015. He was paid a yearly salary of $80,000. Kyle Fessler worked as Longwells’ head chef from October 2013 to December 8, 2015. His annual salary was $49,999.99. Employment Agreement Drought and Fessler were required to sign a “Longwells Employee Agreement” in order to obtain employment. Under “Work Hours,” the agreement stated in part that “you will be expected to work a minimum of 40 hours per week other than paid time off which is addressed below.” The “Termination” provision of the agreement stated that “if, at any point, 60 days 1 See Neb. Rev. Stat. § 48-1228 et seq. (Reissue 2010, Cum. Supp. 2018 & Supp. 2019). - 862 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports DROUGHT v. MARSH Cite as 304 Neb. 860 pass with you billing no hours to a client, this agreement will be considered terminated.” The “Compensation” section of the agreement included the following provisions: 1. You will be paid weekly 2. Your earnings will be based on your billable hours 3. You will be paid < > . . . for every hour billed to and approved by the client 4. Billable hours are determined based on the Company’s understanding with its clients 5. You will be required to provide the Engagement Manager with a timesheet signed off by the client designee in order to be paid 6. The Company will provide the timesheet template to you separately 7. If you do not produce an approved time sheet then you will not be considered to have earned billable hours 8. Approved timesheets are to be submitted per the “Time and Expense Reimbursement Policy and Procedure” which will be provided to you separately The PTO section specified that PTO included vacation, sick days, and holidays. A table showed that when the “Employment Anniversary” is “[l]ess than 2 years,” an employee would earn 4 hours of PTO “per 40 hour + week billed.” Once the employment anniversary reached 2 years, the amount of PTO earned increased to 5 hours. Lawsuit After separating from employment, Drought and Fessler requested compensation for PTO that they claimed had been earned but not paid. Longwells refused the requests. Drought and Fessler then sued Longwells, alleging a violation of the Wage Act. They asserted that the employment agreement governed PTO to be paid. The complaint alleged that Longwells owed PTO of $16,430.86 to Drought and $10,027.61 to Fessler. - 863 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports DROUGHT v. MARSH Cite as 304 Neb. 860 As an affirmative defense, Longwells asserted mutual mistake. But Longwells also asserted that if the court found that the employment agreement should not be rescinded or reformed based upon mutual mistake, Drought and Fessler’s claims were barred by the terms of the agreement. Specifically, Longwells contended that no PTO accrued under the agreement, because Drought and Fessler did not have billable hours and did not bill hours to a client. Summary Judgment The parties filed cross-motions for summary judgment. The evidence was undisputed that as salaried employees, Drought and Fessler were not required to keep track of their hours worked. It was also undisputed that Drought and Fessler did not have clients or billable hours. Drought and Fessler claimed to have “easily worked at least 40 hours per week,” but Marsh stated that Drought worked less than 30 hours in a week on multiple occasions. Drought testified in a deposition that he was paid a salary every week regardless of the number of hours he worked. Drought took 1 week of vacation in 2014, and Longwells paid him for that vacation time. Fessler took 1 week of vacation in 2014 and in 2015, and he similarly stated that Longwells paid him for that vacation time. Marsh testified that Drought and Fessler took time off, but that there was never a PTO offer or policy. Marsh testified that he “never docked anyone’s salary when they were off for sick time or vacation time.” According to Marsh, PTO was not discussed at the time of hiring, was not a term of employment, and neither he nor Drought or Fessler knew the PTO clause was in the agreement when it was signed. Marsh stated that he asked Drought and Fessler to sign the employment agreement for the sole purpose of the noncompete provision. The employment agreement was based off a document used by an information technology company that employed independent contractors who serviced clients of the - 864 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports DROUGHT v. MARSH Cite as 304 Neb. 860 information technology company. According to Marsh, the agreement contained a number of provisions that were never intended to apply to employees of Longwells. The court found that there was no dispute payment for accrued PTO is compensation for labor or services and that Drought and Fessler each signed the employment agreement containing a provision for PTO. The court framed the dispute as whether Drought and Fessler satisfied the terms of the employment agreement in order to be entitled to PTO. The court found that Drought and Fessler could not have earned any PTO because they did not have timesheets signed by clients nor did they have billable hours. The court determined that hours worked did not equate to hours billed and that there was no agreement to provide PTO based on hours “worked.” The court reasoned that because Drought and Fessler did not bill any hours to clients, they could not have earned any PTO under the plain language of the employment agreement. Thus, the court sustained Longwells’ motion for summary judgment, overruled Drought and Fessler’s motion, and dismissed the complaint. Drought and Fessler filed a timely appeal. ASSIGNMENTS OF ERROR Drought and Fessler assign that the court erred in (1) failing to find that they were entitled to their earned but unused PTO; (2) failing to find that there were terms in the employment agreement that were inapplicable to their employment situation, in finding that they did not earn PTO because they could not prove billable hours, and in failing to address that there could be no mutual mistake in a unilateral employment agreement; (3) failing to find that the parties’ understanding and agreement of how PTO was earned was demonstrated by the fact that both Drought and Fessler had been paid for PTO before their terminations; and (4) sustaining Longwells’ motion for summary judgment and overruling Drought and Fessler’s motion for summary judgment. - 865 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports DROUGHT v. MARSH Cite as 304 Neb. 860",facts
+190,2344727,1,2,"Proper resolution of this case begins with recognition of what makes a limited partnership a limited partnership. As a leading Kentucky commentator describes it: In a limited partnership, a member will be either a general partner or a limited partner. The status of a general partner is identical to that of a partner in a general partnership. However, the status of the limited partner differs substantially from a general partner in two ways. First, the limited partner's liability is limited to his contribution to the limited partnership. The limited partner, in this regard, is similar to a shareholder of a corporation in that he is insulated from the obligations and liabilities of the partnership to the extent they exceed his capital contribution. Second, in order to maintain the limited liability status, a limited partner is not allowed to participate in the management and control of the activities of the partnership. It is the general partner's responsibility to manage the business operations of the limited partnership. Seiffert, Kentucky Practice — Corporations, § 1:4 (2008). In Kentucky, the rights accorded a limited partner derive primarily from the parties' partnership agreement and the Kentucky Revised Statutes. Kentucky also recognizes the common law duty of good faith owed by each partner to each and every other partner. See Axton v. Kentucky Bottlers Supply Co., 159 Ky. 51, 166 S.W. 776, 778 (1914) (It is the duty of each partner to act with the utmost good faith towards his copartners . . . A person will not be permitted to benefit himself at the expense of the firm.) IV. There was no Conversion of the Limited Partnership in Violation of KRS 275.370 Lach first alleges that the restructuring which produced the Limited Liability Company violated KRS 275.370 because it was the conversion of a limited partnership to a limited liability company without consent of all partners, general and limited. Every court, including this one, has rightly rejected her argument. KRS 275.370(1) provides that a limited partnership may be converted to a limited liability company pursuant to this section. The language is clearly permissive, denoting a legislative intent that limited partnerships have an option of proceeding under the statute but are not limited to restructuring as a limited liability company only pursuant to the statute. Moreover, as the majority acknowledges, KRS 275.370 envisions a transformation of a single entity. Once all of the statutory steps are complied with and articles of organization are filed with the Secretary of State the registration of the limited partnership shall be deemed cancelled . . . KRS 275.370(3)(e). Like the old phrase the King is dead, long live the King, the statute provides for an uninterrupted succession — the limited partnership is dead, long live the limited liability company. An uninterrupted succession or seamless transformation is not what happened in this case. As the trial court, the Court of Appeals and the majority recognizes, the Limited Liability Company was formed and existed concurrently with the Limited Partnership. Notably, the Limited Partnership was not created just to manage the Man O' War property but as quoted above to enter into joint ventures and carry on the business of leasing real property and developing and operating shopping centers. Thus, the transfer of the Limited Partnership's general partnership interest in MOW Place to the Limited Liability Company did not deprive the Limited Partnership of all of its lawful purpose. It could have continued to exist as a vehicle for leasing other real property or developing and operating other shopping centers, albeit an unlikely scenario given the status of relations between Lach and the other parties. Regardless, the permissive language of KRS 275.370 and the inescapable fact that the Limited Partnership and Limited Liability Company legally existed simultaneously preclude any argument that the Limited Partnership was improperly converted to a limited liability company. While Robert Miller may have occasionally used the word conversion in discussing the restructuring, he plainly misspoke because there was no conversion as a matter of law. KRS 275.370 was not violated. V. KRS 362.490 Was Not Violated by the Restructuring Because the Business of the Limited Partnership Continued in a Different Form with the Same Participants In 1986, KRS 362.490 provided in relevant part: Rights, powers and liabilities of a general partner. A general partner shall have all the rights and powers and be subject to all the restrictions and liabilities of a partner in a partnership without limited partners, except that without the written consent or ratification of the specific act by all the limited partners, a general partner or all of the general partners have no authority to . . .     (2) Do any act which would make it impossible to carry on the ordinary business of the partnership, . . . Kentucky's Uniform Limited Partnership Act, adopted in 1970, was amended in 1988 with the passage of the Revised Uniform Limited Partnership Act (and revised again in 2006). Although different statutory provisions are applicable in the 1970 and 1988 versions, the gist is the same, i.e., general partners cannot, without the consent of all partners, do any act which would make it impossible to carry on the ordinary business of the partnership. Lach proposes and the majority accepts the proposition that this statute means feuding partners must remain locked together in a dysfunctional limited partnership without recourse to other business entities for carrying on their business even if the general partners are expressly authorized to simply dissolve the limited partnership and to take such other action, execute and deliver such other documents, and perform such other acts as the General Partners may deem necessary, appropriate, or incidental to carrying on the business and affairs of the Partnership. Limited Partnership Agreement, ¶ 7(a)(9). This wholly illogical conclusion is premised on cases which are so distinguishable from this case as to be irrelevant. In Gundelach v. Gollehon, 42 Colo.App. 437, 598 P.2d 521 (1979), Gundelach was a limited partner in a limited partnership created for the stated purpose of acquiring, owning, managing, improving and leasing a particular 112 acre parcel of land in Perry Park and to engage in business activities related or incidental thereto. When the general partners saw an opportunity to combine their interests from three separate limited partnerships to obtain a more appealing parcel of property in Perry Park, they sought approval from the various limited partners for a consolidation of the three partnerships. Gundelach refused to consent but the transaction proceeded anyway and the very piece of property which Gundelach had invested in through the purchase of his limited partnership interest was deeded over to the seller of the allegedly more lucrative property. In that case, the Colorado Court of Appeals understandably concluded that the general partners had undertaken an act which made it impossible to carry on the ordinary business of the partnership. As noted, the ordinary business of that particular partnership was the purchase, development and lease of the specific 112 acre parcel which the General Partners sold off to a third party. Here, Lach's interest was in a limited partnership whose purpose was not limited to operation of a particular property but, more importantly, the Man O' War property which had been the focus of the partnership, remained with the Limited Liability Company and provided Lach with income in the exact percentage of ownership as she had held in the Limited Partnership. Clearly, Gundelach is factually distinguishable. As the Court of Appeals found, in this case the same business was being conducted before and after the restructuring, just through a different legal entity. Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057 (2nd Cir.1977) is exceedingly more complex but just as distinguishable. While the case started as a securities churning case, antitrust and partnership fiduciary duty counterclaims were added, some of which were subject to the ancillary jurisdiction of the federal district court. Two limited partners in the Newburger, Loeb partnership alleged that two recently admitted general partners, two outside consultants, in-house and outside legal counsel and others conspired to transform the partnership into a corporation and to gain control of its assets for a small investment. 563 F.2d at 1062. When the limited partners refused to agree to the transfer of partnership assets to the corporation, the defendants allegedly threatened two separate lawsuits, one for securities churning and one for fraudulently inducing the recently admitted general partners to invest in Newburger, Loeb. The limited partners alleged other coercive tactics were also employed. The district court found the transfer of the partnership assets was a violation of New York Partnership law prohibiting acts that would make it impossible to carry on the ordinary business of the partnership. In the trial judge's words, the defendants were part of a plot to take over the new operation on a shoestring and directly enrich themselves. 563 F.2d at 1067. Against this backdrop the Second Circuit stated: . . . . However, there is simply no language in the Partnership agreement that can be construed as granting the general partners the right to conduct the February 11 transfer; indeed, this is the precise conclusion reached by the Rosenman, Colin memorandum of January 25, 1971 discussed supra. The February 11 transfer did not merely terminate the Partnership (which, in fact, is what Gross, Bleich and Donoghue sought by liquidation), it transferred all of the Partnership assets, including the capital interests of Bleich and Donoghue, to an entirely new entity, with new management and different rights between the parties. This drastic change in the rights and relations of the parties went far beyond any powers granted the general partners to terminate or manage the business. . . . Id. at 1075. Without question, Newburqer, Loeb is distinguishable. Not only were threats and coercive tactics used, but most importantly the partnership agreement did not grant the general partners the authority to engage in the challenged transaction and the result was a drastic change in the rights and relations of the parties. . . . Interestingly, the Newburqer, Loeb court cited in contrast Mist Properties, Inc. v. Fitzsimmons Realty Co., 228 N.Y.S.2d 406 (Sup.Ct.1962), a case in which a transfer of partnership assets was held not to violate the same New York Partnership law because the partnership agreement allowed the general partners to terminate the partnership at any time and delegated to them the authority to manage the business. Again, the Newburqer, Loeb court emphasized that there was no language in the Newburger, Loeb partnership agreement which authorized the machinations of the defendants and there was no credible argument that the transfer was `necessary' to enable the Partnership to carry on its business. . . . 563 F.2d at 1075. In this case, as in Mist Properties , the parties' limited partnership agreement allowed for the actions taken by the general partners. They had the authority to undertake actions necessary, appropriate, or incidental to carrying out the business and affairs of the [Limited] Partnership and the authority to dissolve the Limited Partnership. There was no act that made it impossible to carry on the business of the Limited Partnership. Indeed, it is still being carried on through the Limited Liability Company for Lach's benefit and all the other partners' benefit in the same proportionate interests as existed in the Limited Partnership. The same business is simply being carried on in another legally authorized (and most would acknowledge significantly superior) legal form. There is no credible basis for finding that KRS 362.490 was violated. VI. There Was No Breach of Fiduciary Duty. After discussing Gundelach, Newburger, Loeb , and Mist Properties , the majority states: Simply put, we find that the general partner's (sic) rights under the partnership agreement to (1) terminate the partnership at any time upon agreement of the general partners, and (2) to act upon behalf of the Partnership in matters that are necessary, appropriate, or incidental to carry out its business, can be not construed to allow them the power to transform the partnership into a limited liability company, in order to favor a majority of the partners in their selection, or substitution, of the general partners/managers of the business, without the approval of all the limited partners. No authority is cited for this statement because it is simply a pronouncement, one which does not flow from the aforementioned cases. Having pronounced that the Limited Partnership Agreement cannot be construed to allow the formation of the Limited Liability Company, the majority proceeds to find the transfer of the partnership assets to the Limited Liability Company and the restructuring of the business to be breaches of fiduciary duties, again without citation to anything other than general fiduciary duty cases having no comparison to the facts before this Court. See, Axton v. Kentucky Bottlers, supra , (involving a partner who cancelled partnership contracts and diverted opportunities to his new competing business); Anthony v. Padmar, Inc., 320 S.C. 436, 465 S.E.2d 745 (App.1995) (sale of partnership assets to a third party upheld but general partners liable for failing to receive the majority vote required by the partnership agreement and for breach of fiduciary duty by intentionally failing to disclose information, misrepresenting and manipulating the voting process and mishandling the sale); VanHooser v. Keenon, 271 S.W.2d 270 (Ky.1954) (five partners who engaged in self-dealing were forced to account to their partners for money obtained on an option which rightfully belonged to the entire partnership). After this the majority throws it all back to the trial judge with directions to determine a remedy. Typically, a breach of fiduciary duty in the partnership context results in an accounting (because profits, assets or opportunities have been diverted) or simply damages (again for the profits lost or losses incurred as a result of the breach.) Bromberg and Ribstein on Partnership ¶ 16.07(i) (2005) (collecting cases illustrating remedies including accounting, damages, refund of partnership contributions, compelled transfers and the setting aside of conflict transactions). [2] Here, there is no allegation of monetary damage because the Limited Liability Company is as successful as the Limited Partnership. The only thing Lach lost in the restructuring, the only thing, was her personal choice for General Partner, a choice unacceptable to the holders of 72.972% of the Limited Partnership interests. The majority apparently thinks it only fair that Lach have had her choice as to one of the three general partners and thus declares a fiduciary duty was breached. There is absolutely no legal basis for this conclusion. Were the General Partners supposed to ignore their own best business judgment and the wishes of all other partners in the Limited Partnership about the identity of the new General Partners? Would that not have been a breach of fiduciary duties to the other seven limited partners who disagreed with Lach and who held 39.5223% as opposed to Lach's 27.0270% of the Limited Partnership? Were the General Partners supposed to ignore those limited partners and favor Lach? Apparently so, but why? In short, the majority finds a breach of fiduciary duty where there is none, and then sends the case back to the trial judge to fashion a remedy. But first — what are Lach's legally cognizable damages? Does not getting your choice for General Partner because all the other partners disagree constitute damage? Assuming in some topsyturvy world this constitutes damage, what is it worth? Surely, there is no purer form of speculation. The majority's breach of fiduciary duty pronouncement on these facts is not only legally unsound, it leads to a virtual Alice in Wonderland world of remedies. To the extent the majority would concede that Lach could not force her choice for General Partner on the other partners but argues that the General Partners had a fiduciary obligation to continue negotiating the issue with her, what about the indisputable facts? Time was of the essence. In April, 2002, Robert Miller was dying; he passed away approximately 90 days after the May, 2002 restructuring following weeks of hospice care for liver cancer. Without an agreement on the new General Partner(s) or the restructuring, the elderly Lynwood Wiseman (who himself died during the pendency of this case) would have been the only surviving General Partner. In Robert Miller's words from a March, 2002, letter, [Lach] hates Lynwood passionately; their divorce lawsuit lasted for years and years after they were technically divorced. Was Robert Miller supposed to relegate the other partners to an easily foreseeable and similarly protracted fight waged by Lach and Lynwood Wiseman? How long were the General Partners (particularly Miller) supposed to negotiate before resorting to other legal means that would protect the greater interest of the Limited Partnership and the interests of the other partners? It is simply legally unjustified to look at the facts that existed and divine that the General Partners breached their fiduciary duties to Shirley Lach. Indeed, they did exactly what their fiduciary duties demanded of them — they exhibited the utmost good faith to all the parties and acted in the best interests of the entire Limited Partnership by undertaking the restructuring, resulting in a profitable Limited Liability Company.",analysis
+191,4555595,1,1,"Ronald L. Lauhead was charged with five counts of first degree sexual assault of a child and five counts of child abuse. Before trial, he requested a competency evaluation pursuant to Neb. Rev. Stat. § 29-1823 (Reissue 2016). Lauhead was initially evaluated at the Lincoln Regional Center (the LRC) and found to be incompetent to stand trial. The district court ordered him to continue treatment at the LRC until his competency to stand trial could be restored. Lauhead was subsequently reevaluated by two doctors. Both doctors found Lauhead to be competent and recommended that he be provided accommodations. The district court found Lauhead competent to stand trial. Lauhead, subsequently, waived his right to a jury trial, and a bench trial based upon stipulated facts was held on the amended charges of one count of attempted first degree sexual assault of a child and one count of child abuse. Lauhead was found guilty and sentenced to incarceration for terms of 20 to 22 years and 3 years, respectively, to be served concurrently. Lauhead appeals.",introduction
+192,3134387,1,1,"On June 12, 1991, the plaintiff, Curtis Braye, sustained injuries after falling from a motorized scaffold, while working as a welder on a construction site at Archer-Daniels-Midland's (ADM) manufacturing facility in Decatur, Illinois. Braye filed a workers' compensation claim against his employer, All Tri-R, Inc., which was settled for $172,000. In 1993, Braye filed an action against ADM alleging violations of the Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq. (subsequently 740 ILCS 150/0.01 et seq. (West 1992)) (repealed by Pub. Act 89--2, eff. February 14, 1995)), and common law negligence. In February of 1994, ADM filed its answer to Braye's complaint as amended, denying the allegations. ADM also filed a third-party action against All Tri-R, seeking contribution pursuant to the Joint Tortfeasor Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.). In its initial prayer for relief, ADM sought contribution in an amount commensurate with All Tri-R's relative degree of culpability in proximately causing Braye's injuries, but not to exceed All Tri-R's maximum liability under the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1992)), consistent with this court's decision in Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991). In Kotecki, this court held that an employer's contribution liability to a third-party plaintiff is limited to the amount of workers' compensation benefits paid to the injured employee. Kotecki, 146 Ill. 2d 155. In March of 1995, ADM filed a motion for leave to amend its request for contribution from All Tri-R, now seeking an amount commensurate with All Tri-R's relative degree of culpability and no longer limited by All Tri-R's workers' compensation liability. ADM premised its motion to amend on a purchase order which allegedly governed the work in question. The purchase order states, in pertinent part: If [All Tri-R's] work under the order involves operations by [All Tri-R] on the premises of [ADM] or one of its customers, [All Tri-R] shall take all necessary precautions to prevent the occurrence of any injury to person or damage to property during the progress of such work and, except to the extent that any such injury or damage is due solely and directly to [ADM's] or its customer's negligence, as the case may be, [All Tri-R] shall pay [ADM] for all loss which may result in any way from any act or omission of [All Tri-R], its agents, employees or subcontractors. ADM maintained that because this language evidenced All Tri- R's intent to remain liable for all loss resulting from All Tri-R's own negligence, ADM should be permitted to file its amended request for contribution from All Tri-R without the limitation announced in Kotecki. ADM argued that the purchase order established that All Tri-R had bargained away any potential limit on its contribution liability in a third-party action, including the limit set forth in Kotecki. Additionally, ADM urged the circuit court to follow Herington v. J.S. Alberici Construction Co., 266 Ill. App. 3d 489 (1994), where the court held that an employer is free to forgo the protection of the Kotecki cap by virtue of a contract which preceded the litigation. All Tri-R responded to ADM's motion to amend by arguing that the purchase order could be read as allowing indemnity for ADM's own negligence and therefore was void and unenforceable under the Construction Contract Indemnification for Negligence Act (Indemnification Act) (740 ILCS 35/0.01 et seq. (West 1994)). All Tri-R maintained that the purchase order was at best ambiguous. As such, All Tri-R argued, the ambiguity must be construed against ADM, which allegedly drafted the purchase order in question. Finally, All Tri-R argued that even if the purchase order did not violate the Indemnification Act, Herington was decided incorrectly. Following a hearing on the motion, the circuit court concluded that the language of the purchase order did not violate the Indemnification Act. The court also determined that Herington controlled its ruling because Herington recognized that an employer may waive its right to assert Kotecki as a defense to a third-party action for contribution. Accordingly, the court allowed ADM to file an amended third-party complaint seeking contribution from All Tri- R in an amount commensurate with its relative degree of culpability. The court then certified the following questions pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308): Whether the liability cap in third-party actions provided to an employer who pays an injured employee's worker['s] compensation benefits may be waived by contract, and if so, whether a contract which states: `If [All Tri-R's] work under the order involves operations by [All Tri-R] on the premises of [ADM] or one of its customers, [All Tri-R] shall take all necessary precautions to prevent the occurrence of any injury to person or damage to property during the progress of such work and, except to the extent that any such injury or damage is due solely and directly to [ADM's] or its customer's negligence, as the case may be, [All Tri-R] shall pay [ADM] for all loss which may result in any way from any act or omission of [All Tri-R], its agents, employees or subcontractors[ ]' is an enforceable contract for contribution. The appellate court answered the first question in the affirmative, holding that an employer is free to decide whether to forgo the Kotecki limit by virtue of a contract. 276 Ill. App. 3d 1066, 1070. However, the appellate court went on to find that the language of the purchase order was void and unenforceable because it violated the Indemnification Act. 276 Ill. App. 3d at 1070-71. We granted ADM's petition for leave to appeal. 155 Ill. 2d R. 315(a).",facts
+193,2005355,1,1,"Before we can state the relevant facts, we must resolve the parties' dispute with respect to whether our review is for correction of errors of law, as claimed by UNI, or de novo, as asserted by the plaintiff. This case was filed as a declaratory judgment action in which the plaintiff sought a declaration of his contractual rights, together with an award of monetary damages and injunctive relief. Harrington claims his request for injunctive relief means the case was heard in equity, and therefore, review is de novo. See State ex rel. Miller v. Midwest Pork, L.C., 625 N.W.2d 694, 697 (Iowa 2001) (A request for injunctive relief is an equity action, and therefore, our review is de novo.). We review declaratory judgment actions according to the manner [in which] the case was tried in the district court. Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa 2000). The case before us was tried at law. The matter was filed as a law action, the district court indicated on the record that the case would be heard at law, and the court ruled on the few objections that were made. See Master Builders of Iowa, Inc. v. Polk County, 653 N.W.2d 382, 387-88 (Iowa 2002) (considering pleadings and whether court ruled on evidentiary objections at trial to determine whether case was tried in law or equity). Harrington points out, however, that he requested injunctive relief, and that is an equitable remedy. But [t]he fact that injunctive relief was sought is not dispositive of whether an action is at law or in equity, as an injunction may issue in any action. Green v. Advance Homes, Inc., 293 N.W.2d 204, 208 (Iowa 1980). As this court recently noted, An injunction may be obtained as an independent remedy by an action in equity, or as an auxiliary remedy in any action. Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180, 184 (Iowa 2005). Here, injunctive relief was sought as an auxiliary remedy for the defendant's alleged breach of contract. Thus, the existence of a request for an injunction does not alter our conclusion that this matter was tried as a law action. Because this matter was tried at law, our review is for the correction of errors of law. Iowa R.App. P. 6.4. We are bound by the trial court's findings of fact if they are supported by substantial evidence. See Home Builders Ass'n of Greater Des Moines v. City of West Des Moines, 644 N.W.2d 339, 344 (Iowa 2002). Upon our review of the record, we conclude the following facts are supported by substantial evidence.",standard of review
+194,1039178,1,1,"On March 30, 2007, Mau rented aU-Haul truck from an Olympia U-Haul facility. When she rented the truck, Mau also purchased Safemove Protection, an optional cargo protection policy offered by U-Haul, which does not cover water damage. 1 Report of Proceedings (RP) at 39, 84; Ex. 25. Mau, her partner David Eden, and several friends and family members used the truck to move Mau's and Eden's personal belongings from a rented storage facility in Centralia, Washington, to their new home in Morton, Washington. At some point after Mau returned the truck, she complained to aU-Haul employee that the truck's roof had leaked and that her property had been damaged by rainwater as a result. In response, the employee gave Mau the number of Republic Western Insurance so Mau could file a claim. Mau called Republic Western on April 3, 2007, to report the alleged damage. Because Mau reported that her items had been damaged by rainwater, Republic Western concluded that her claim would not be covered by the Safemove Protection policy. On April 4, the company sent Mau a letter to this effect. In lieu of a Safemove claim, Republic Western opened a general liability claim on Mau's behalf. 1 RP at 37-39. 2 State v. Mau, No. 87697-5 When Mau filed her claim, Republic Western was a wholly owned subsidiary of U-Haul. At trial, a Republic Western employee described the company as the claims administrator for U-Haul who is self-insured. 1 RP at 36. Because it was based in California, Republic Western contracted with independent claims adjusters to investigate claims filed by U-Haul customers in other states. It hired Reilly Gibby, an independent adjustor in Washington, to investigate Mau's claim. Gibby called Mau on April 19, 2007, to discuss her claim, to request documentation of her losses, and to set up an in-person meeting. Mau met with Gibby the next day at a restaurant about 30 miles from her home. Gibby interviewed Mau about the move, and together they compiled a list of allegedly damaged items totaling more than $16,000 in value. On May 7, Gibby met with Eden, who verified Mau's claims. Because of inconsistencies between Mau's and Eden's accounts of the move, their refusal to meet with Gibby at their home, and their failure to provide any documentation of the alleged damage, Gibby grew to suspect fraud. Eventually, he recommended that Republic Western deny the claim. Roughly two years later, the Washington State Office of the Insurance Commissioner opened an investigation into Mau's and Eden's claim. On March 17, 2010, the Lewis County prosecutor charged Mau and Eden with one count each of making a false insurance claim. That crime is defined in RCW 48.30.230, which provides, in relevant part: False claims or proof-Penalty. ( 1) It is unlawful for any person, knowing it to be such, to: 3 State v. Mau, No. 87697-5 (a) Present, or cause to be presented, a false or fraudulent claim, or any proof in support of such a claim, for the payment of a loss under a contract of insurance; or (b) Prepare, make, or subscribe any false or fraudulent account, certificate, affidavit, or proof of loss, or other document or writing, with intent that it be presented or used in support of such a claim. Mau and Eden were not joined as codefendants, but their cases were joined and consolidated for trial. After the State rested, the defense moved to dismiss on the ground that the State had failed to prove that the defendants made their claim under a contract of insurance. 2 RP at 207-09. Mau's attorney argued that the false claims statute was designed to deal with people who take out an insurance policy and then make a fraudulent claim ... on the contract of insurance that they took out and that the statute was therefore inapplicable to the defendants' liability claim. 2 RP at 208 (emphasis added). He also argued that because U-Haul is apparently selfinsured, Republic Western could have handl(ed) this claim for U-Haul but could not have act( ed) as an insurance company under some sort of contract of insurance. 2 RP at 208-09. The court denied the motion to dismiss; it reasoned that the defense's argument was based on too narrow a reading of [the false claims] statute. 2 RP at 210. 1 1 The trial judge reasoned that an insurance policy can be direct coverage, [or] it can cover third parties. This was an insurance claim. I don't think that the language of this statute would preclude this type of a claim being a claim for insurance .... I think that is too narrow of a reading of [the] statute ....  2 RP at 210. 4 State v. Mau, No. 87697-5 The jury found Mau and Eden guilty as charged. Eden was sentenced to 15 days with allowance that it be served at home. Mau was sentenced to 60 days with allowance that it be served on electronic home monitoring. Mau and Eden appealed their convictions, and the Court of Appeals affirmed. State v. Mau, noted at 169 Wn. App. 1002, 2012 WL 2499372. Mau alone petitioned for review, which this court granted. State v. Mau, 176 Wn.2d 1007, 297 P.3d 68 (2013).",facts
+195,2363210,1,1,"During the evening of April 19, 2004, between 6:00 and 8:00 p.m., the Federalsburg [2] Police Department intervened in several disputes in progress, all resulting from an argument between Alexander Wilcox and Derrick Wilcox. [3] Officer Pennell Jester observed the two squabbling near Academy Avenue in Federalsburg, and requested backup. When Officer Brian McNeill responded, both officers approached, and the Wilcoxes left the area. The quarrel migrated to a nearby street corner where a large crowd began to gather. According to Officer Jester, there was a lot of heated activity at the corner, which appeared to be we're gonna get somebody or something was going to be happening. Both police officers interceded and ordered the crowd to disperse. Over the next ten minutes, the group gradually scattered, and the officers followed both Wilcoxes to the Lucky Corner Store. After leaving the store, another confrontation began among the Wilcoxes and two other individuals. Officer Jester testified that it looked like there was gonna be a fight again, and both officers separated the four men. By that time, a larger crowd of eight to ten people had gathered. The officers again ordered the gathering to disperse. A larger throng, between twenty and thirty people, began to gather at a nearby street corner. The participants shouted and were loud as they walked throughout traffic. Officers Jester and McNeill again approached and moved the participants out of traffic and away from the street corner. The conflagration continued to migrate to a nearby parking lot. Officer Jester testified that it appeared that there was going to be an immediate altercation [with] . . . a whole bunch of people just acting completely out of control, and that he thought a riot was ensuing because there was enough people there and it was getting way out of control, way too fast. Officers Jester and McNeill intervened, interposed themselves within the crowd, and, to no avail, ordered the participants to disperse. Over time, eventually the maelstrom died down, and the crowd dissipated. Around 7:20 p.m., the next altercation occurred, this time at the Garden Court Apartments. Officers Jester and McNeill were dispatched to the scene after the Caroline County Sheriff's Department received a 911 call regarding a fight between forty and sixty people. When they arrived, Officer Jester determined that the argument was over, but that numerous people, including Spry, were loitering at the location. The situation was very heated, and along with Officers McNeill, Wielgosz, and Adams, and Deputy Sheriff Gestole, Officer Jester ordered those present to immediately leave the location if they did not live in the Garden Court Apartments. Officer Jester testified that he ordered the crowd to depart the area because there were forty to fifty people standing in the middle of the roadway and the parking lot, screaming, yelling loud, [and] carrying on. . . . Spry, who was not a resident of the Garden Court Apartments, [4] refused to leave. What happened next was the subject of the following testimony of Officer Jester: [T]hat's where Mr. Spry became involved in the incident. He was in the apartments there, he's not a resident of those apartments. He was advised by myself to move along, and Mr. Spry right in my face, looked at me and said, Fuck you bitch. He continued to stand in front of me defiantly refusing to move and to leave the area.    He stood his ground firmly, like he's not going anywhere. . . .    Mr. Spry refused to move. Again I advised Mr. Spry it was time to move along which he responded with to me, with more profanity. Mr. Spry continued to, what we called eyeball, just glare at me, like he was looking through me. Officer Jester then ordered Spry to move along at least four or five times within the space of five to ten minutes. Officer McNeill testified similarly about the interaction at the Garden Courts Apartment complex, noting that there were many individuals, including Spry, who were menacing, shouting obscenities at the officers, and creating a disturbance: Mr. George Spry was yelling numerous profanities at officers, and as Officer Jester walked to Mr. Spry's location they were like in a Mexican stand off. Mr. Spry was standing in, it appeared a defiant stance to Officer Jester. . . .    His jaw was clenched, he was standing with his arms down by his side, his left fist appeared to be balled; it was completely balled, it was just curled up forming more of a balled fist looking, as opposed to an open relaxed hand. And as Officer Jester continued to approach him, Mr. Spry stood still, stood at the same position where he was at. I then began to walk towards Officer Jester and Mr. Spry's location, at that point and time some associates of Mr. Spry began tugging at him, saying, come on George, let's go. And Mr. Spry then walked away, along with his associates continuing to yell profanities back at the police.    I heard Officer Jester direct Mr. Spry to leave the area, as he was telling other individuals. . . . After each directive from Officer Jester, Mr. Spry made a comment like, fuck the police, nobody's scared of you fucking cops, or something like fuck you all. I just kept hearing the word fuck come out of his mouth. In response to a question about the volume of Spry's invocations, Officer McNeill replied that the volume of his voice was elevated, he projected throughout the . . . immediate area where we responded to. Officer Jester filed a statement of charges during the afternoon of the following day, formally charging Spry with one count of riot, one count of obstructing and hindering a police officer, one count of failing to obey a lawful order that a law enforcement officer makes to prevent a disturbance to the public peace in violation of Section 10-201(c)(3) of the Criminal Law Article; one count of disturbing the peace in violation of Section 10-201(c)(4) of the Criminal Law Article; [5] one count of disturbing the peace by making an unreasonably loud noise in violation of Section 10-201(c)(5) of the Criminal Law Article; [6] one count of disturbing the peace by hindering the free passage of another in violation of Section 10-201(c)(1) of the Criminal Law Article; [7] and one count of disorderly conduct in violation of Section 10-201(c)(2) of the Criminal Law Article. [8] Spry was arrested pursuant to a warrant on April 21, 2004. [9] Spry requested a jury trial on June 28, 2004, and the case was removed to the Circuit Court for Caroline County. On September 24, 2004, the first day of trial, the State nolle prossed the charges for riot, disturbing the peace, and disturbing the peace by making an unreasonably loud noise. After the State rested, Spry's counsel moved for judgment of acquittal on the four remaining charges, which was granted as to the charges for disturbing the peace by hindering the free passage of another and obstructing and hindering a police officer, as well as for the disorderly conduct charge. Spry was convicted by a jury on the only remaining count, failing to obey a lawful order that a law enforcement officer makes to prevent a disturbance to the public peace in violation of Section 10-201(c)(3). Spry was sentenced to sixty days imprisonment with all but two consecutive weekends suspended, as well as one year of unsupervised probation. [10] Spry noted an appeal to the Court of Special Appeals, contending that the evidence was not legally sufficient to support his conviction, and posing one question of whether tardy compliance is violation of the statute. [11] In an unreported opinion, the intermediate appellate court characterized the incidents in Federalsburg on the evening of April 19th, 2004, as a three-round scuffle, riotous, and almost reducing the peace and tranquility . . . to a civil war battlefield, and described Spry as a leading voice of defiance, and truculent. In affirming his conviction and finding that the evidence was sufficient to convict, the appellate court determined that the question is where on the intervening continuum to place the critical point where Section 10-201(c)(3) is violated, a question entrusted to the collective wisdom of our judicial fact finders. The court also stated that a snarling compliance twenty minutes after an order is given does not negate nineteen antecedent minutes of non-compliance. We granted Spry's petition for writ of certiorari, which presented the following question for our review: Was Petitioner improperly convicted of failing to obey a police order to leave the scene when he did leave and there was no attempt to arrest him when the order was given? Spry v. State, 393 Md. 477, 903 A.2d 416 (2006). We hold that a police officer does not have to arrest an individual immediately after the first disobedience of a lawful order made to prevent a disturbance to the peace, nor does a police officer have to arrest the individual at the scene.",introduction
+196,3133216,1,3,"A. This Court will not review the district court’s denial of BRN’s motion for partial summary judgment. 6 BRN asks this Court to review the district court’s denial of its partial summary judgment motion concerning the applicability of the special relationship exception to the economic loss rule. BRN moved for summary judgment asking the district court “to rule as a matter of law that if Taylor provided the disputed advice concerning what was necessary to vest the PUD, the services involved in rendering such advice come within the special relationship exception to the economic loss rule.” “It is well settled in Idaho that ‘[a]n order denying a motion for summary judgment is an interlocutory order from which no direct appeal may be taken.’ ” Garcia v. Windley, 144 Idaho 539, 542, 164 P.3d 819, 822 (2007) (alteration in original) (quoting Dominguez v. Evergreen Res., Inc., 142 Idaho 7, 13, 121 P.3d 938, 944 (2005)); see I.A.R. 11. “[A]n order denying a motion for summary judgment is not subject to review—even after the entry of an appealable final judgment.” Dominguez, 142 Idaho at 13, 121 P.3d at 944; see also Lewiston Indep. Sch. Dist. No. 1 v. City of Lewiston, 151 Idaho 800, 808, 264 P.3d 907, 915 (2011) (explaining that this Court does not review denials of summary judgment after judgment is rendered on the merits); Hunter v. State, Dep’t of Corr., 138 Idaho 44, 46, 57 P.3d 755, 757 (2002) (“An order denying a motion for summary judgment is not an appealable order itself, nor is it reviewable on appeal from a final judgment.”). We have consistently explained the rationale for this rule: [B]y entering an order denying summary judgment, the trial court merely indicates that the matter should proceed to trial on its merits. The final judgment in a case can be tested upon the record made at trial, not the record made at the time summary judgment was denied. Any legal rulings made by the trial court affecting that final judgment can be reviewed at that time in light of the full record. This will prevent a litigant who loses a case, after a full and fair trial, from having an appellate court go back to the time when the litigant had moved for summary judgment to view the relative strengths and weaknesses of the litigants at that earlier stage. Were we to hold otherwise, one who had sustained his position after a fair hearing of the whole case might nevertheless lose, because he had failed to prove his case fully on the interlocutory motion. Garcia, 144 Idaho at 542, 164 P.3d at 822 (alternation in original) (quoting Miller v. Estate of Prater, 141 Idaho 208, 211, 108 P.3d 355, 358 (2005)). We are not convinced that we should abandon this rule. To the contrary, we deem it prudent to continue to “strictly adhere” to our rule precluding appellate review of the denial of summary judgment when the case has subsequently gone to the finder of fact. Hennefer v. Blaine Cnty. Sch. Dist., 158 Idaho 242, 249, 346 P.3d 259, 7 266 (2015). We therefore decline to review the district court’s denial of BRN’s motion for partial summary judgment. B. The district court did not err by concluding that BRN failed to meet its burden of proving its claims against Taylor. The district court’s decision did not explicitly state that it found that Taylor had not breached its duty of care to BRN. However, a careful reading of that decision leads us to the inescapable conclusion that this is precisely what the district court found. In its decision, the district court stated: The evidence does not establish that Taylor entered into an oral agreement with BRN to perform land-use planning services on the project. This is demonstrated by a lack of a clear understanding between the parties regarding this responsibility. BRN may have been under the impression that land-use planning was part of Taylor’s role, however, such an impression does not give rise to an obligation under the contract. .... Taylor owed a duty of reasonable care in providing non engineering services in its work with BRN regardless of whether those services were provided under the contract or they were services assumed by Taylor. While it is clear that Taylor took on certain planning-related duties[,] it has not been established from the evidence that Taylor specifically advised BRN that a final plat had to be recorded to vest the PUD entitlement. The district court further explained that because BRN sought purely economic damages, Taylor would not be entitled to recover unless it proved the existence of an exception to the economic loss rule. BRN contends that the district court erred in these decisions. We find that substantial evidence supports the district court’s conclusion that Taylor did not breach its duty of care to BRN. As this is fatal to BRN’s claim, we do not reach BRN’s arguments regarding the special relationship exception to the economic loss rule. To establish a cause of action for negligence, the plaintiff must demonstrate: (1) a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual loss or damage.” Nation v. State, Dep’t of Corr., 144 Idaho 177, 189, 158 P.3d 953, 965 (2007) (quoting O’Guin v. Bingham Cnty., 142 Idaho 49, 52, 122 P.3d 308, 311 (2005)). “Whether a duty exists is a question of law over which this Court exercises free review.” Id. at 189, 158 P.3d at 965. Cumis Ins. Soc’y, Inc. v. Massey, 155 Idaho 942, 947–48, 318 P.3d 932, 937–38 (2014). “[O]ne owes the duty to every person in our society to use reasonable care to avoid injury to the other 8 person in any situation in which it could be reasonably anticipated or foreseen that a failure to use such care might result in injury.” Baccus v. Ameripride Servs. Inc., 145 Idaho 346, 349, 179 P.3d 309, 312 (2008) (alternation in original) (quoting Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 399, 987 P.2d 300, 311 (1999)). This Court has explained that “a contract may create the circumstances for the commission of a tort.” Id. at 350, 179 P.3d at 313 (quoting Just’s Inc. v. Arrington Constr. Co., 99 Idaho 462, 468, 583 P.2d 997, 1003 (1978)). However, “the mere negligent breach or non-performance of a contract will not sustain an action sounding in tort, in the absence of a liability imposed by law independent of that arising out of the contract itself.” Gagnon v. Western Bldg. Maint., Inc., 155 Idaho 112, 115, 306 P.3d 197, 200 (2013) (quoting Baccus, 145 Idaho at 350, 179 P.3d at 313). Although it is undisputed that Taylor undertook to perform a number of engineering tasks associated with the project, including utility design, boundary surveying, topographical surveying, construction staking, and construction observation, Taylor consistently maintained that it did not agree or undertake to provide land-use planning advice relating to the vesting of the PUD. BRN did not provide evidence that there was an express agreement, oral or written, that Taylor would provide land-use planning advice. The district court found that Taylor had voluntarily undertaken to perform certain landuse planning services. Taylor prepared some applications, attended hearings, and prepared minutes in the PUD approval process. Clearly, to the extent Taylor undertook to perform landuse services, it had a duty to perform those services in a non-negligent manner. However, Taylor’s duties were limited to those it actually assumed. There is substantial evidence to support the district court’s finding that Taylor did not provide land-use planning advice regarding the vesting of the PUD. Although Capps maintained that Taylor provided the erroneous advice regarding the necessity of recording a final plat at the 2008 meeting, Pace maintained that Capps and other individuals from BRN told him that a final plat was required. Pace explained that the statement in the demand letter from Taylor’s attorney to the effect that final plat approval was required by May 29, 2009, was based upon what Capps had told him. This is simply a matter of conflicting testimony. It is the district court’s role, not ours, to weigh conflicting evidence and judge witness credibility. State, Dep’t of Transp. v. Grathol, 158 Idaho 38, 45, 343 P.3d 480, 487 (2015). We will uphold the trial court’s factual findings if they 9 are based upon substantial evidence, even if the evidence is conflicting. Big Wood Ranch, LLC v. Water Users’ Ass’n of Broadford Slough & Rockwell Bypass Lateral Ditches, Inc., 158 Idaho 225, 230, 345 P.3d 1015, 1020 (2015). Pace’s testimony constituted substantial evidence that Taylor was not the source of the erroneous information regarding the necessity of final plat approval. “[A] legal duty may arise if ‘one voluntarily undertakes to perform an act, having no prior duty to do so.’” Baccus, 145 Idaho at 350, 179 P.3d at 313 (quoting Coghlan, 133 Idaho at 400, 987 P.2d at 312). “In such a case, the acting party has a duty to perform that act in a nonnegligent manner.” Beers v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, 155 Idaho 680, 688, 316 P.3d 92, 100 (2013). The district court found there was no evidence that Taylor undertook to provide advice regarding the necessity of securing final plat approval. We can find no error in this decision. C. Taylor is entitled to attorney fees on appeal. Both parties request attorney fees on appeal pursuant to Idaho Code section 12-120. BRN also requests attorney fees on appeal under Idaho Code section 12-121. As BRN has not prevailed in this appeal, its request for an award of attorney fees is denied. Taylor requests attorney fees on appeal pursuant to Idaho Code section 12-120(3), contending that its provision of engineering services to BRN constitutes a commercial transaction. “The term ‘commercial transaction’ is defined to mean all transactions except transactions for personal or household purposes.” I.C. § 12-120(3). “[T]he commercial transaction must be integral to the claim and constitute a basis on which the party is attempting to recover.” Clayson v. Zebe, 153 Idaho 228, 236, 280 P.3d 731, 739 (2012) (quoting Great Plains Equip., Inc. v. Nw. Pipeline Corp., 136 Idaho 466, 471, 36 P.3d 218, 223 (2001)). Here, the parties’ claims against each other arose from Taylor’s provision of services in connection with the Black Rock North Development. These services were not for personal or household purposes. As Taylor has prevailed in this appeal, Taylor is entitled to an award of attorney fees pursuant to Idaho Code section 12-120(3).",analysis
+197,887538,1,4,"¶ 33 We reverse the District Court's summary judgment ruling as to Counts I and II, and affirm on Count III. We concur: KARLA M. GRAY, C.J., PATRICIA COTTER, JAMES C. NELSON, and BRIAN MORRIS, JJ.",conclusion
+198,4486866,1,2,"Although the Iowa Code no longer permits claims of ineffective assistance of counsel to be decided on direct appeal, see 2019 Iowa Acts ch. 140, § 31 (to be codified at Iowa Code § 814.7 (2020)), we held in State v. Macke that this provision “do[es] not apply to a direct appeal from a judgment and sentence entered before July 1, 2019.” 933 N.W.2d 226, 228 (Iowa 2019). Because the judgment and sentence here were entered before July 1, 2019, we are not foreclosed from considering Kuhse’s claim of ineffective assistance. “Thus, we will decide whether the appellate record is adequate to determine the claim. If not, the claim will be preserved for postconviction relief.” State v. Brothern, 832 N.W.2d 187, 192 (Iowa 2013) (citation omitted). If the record is adequate, we review Kuhse’s claim of ineffective assistance for failing to object to the marshaling jury instruction de novo. See State v. Harris, 891 N.W.2d 182, 185–86 (Iowa 2017). III. Was Trial Counsel Ineffective for Failing to Object to the Marshaling Instruction that Did Not Mention the State Needed to Prove the Act Was Done Without Justification? In Iowa, the term “justification” appears in the statutory definition of the crime of assault. That is, “[a] person commits an assault when, without justification, the person does any of the following . . . .” Iowa Code § 708.1(2). Yet the Iowa State Bar Association’s model instruction for assault omits this language. See Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 800.1 (2018). In State v. Delay, we clarified that “justification is an affirmative defense rather than an element of that crime.” 320 N.W.2d 831, 833 (Iowa 1982). We elaborated, “It is unreasonable to think that the legislature intended to place upon the State the burden of laboriously disproving each of those forms of justification in every 9 prosecution for assault, no matter how unrelated to the facts of the case they may be.” Id. at 834. As with any affirmative defense, the district court must instruct the jury on justification if substantial evidence supports the theory. Id. at 835. The defendant bears the initial burden of producing sufficient evidence to support the instruction. Id. at 834. Once that threshold is met, the burden shifts to the State to prove lack of justification beyond a reasonable doubt. The constitutions of the United States and Iowa guarantee a criminal defendant the right to effective assistance of counsel. U.S. Const. amend. VI; Iowa Const. art. I, § 10. In order to support a claim of ineffective assistance of counsel, a defendant must show (1) that counsel failed to perform an essential duty and (2) that prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 2064– 65 (1984); Ledezma v. State, 626 N.W.2d 134, 141–42, 145 (Iowa 2001) (en banc). To prove counsel failed to perform an essential duty, the defendant “must show that counsel’s performance was deficient,” meaning counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The court determines “whether counsel’s assistance was reasonable considering all the circumstances.” Id. at 688, 104 S. Ct. at 2065; see Nguyen v. State, 878 N.W.2d 744, 752 (Iowa 2016). The crux of the prejudice component rests on whether the defendant has shown “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 10 2068; see State v. Lorenzo Baltazar, 935 N.W.2d 862, 872 (Iowa 2019) (finding that even where there was outdated language within the jury instruction, the defendant could not show prejudice due to the overwhelming evidence against him). To establish prejudice in the context of an ineffectiveassistance-of-counsel claim, a defendant must show a reasonable probability that the result of the trial would have been different. The likelihood of a different result must be substantial, not just conceivable. A defendant must show the probability of a different result is sufficient to undermine confidence in the outcome. This standard requires us to consider the totality of the evidence, identify what factual findings would have been affected, and determine if the error was pervasive or isolated and trivial. State v. Ambrose, 861 N.W.2d 550, 557–59 (Iowa 2015) (citations omitted) (deciding there was no ineffective assistance of counsel when defense counsel failed to object to an instruction that told the jury not to consider lesser included offenses until it had acquitted the defendant of the greater offense). “Jury instructions are not considered separately; they should be considered as a whole.” State v. Fintel, 689 N.W.2d 95, 104 (Iowa 2004). In Fintel, the defendant argued that his trial counsel was ineffective for failing to object to three instructions as prejudicial misstatements of the law. Id. at 103. He contended those instructions improperly directed the jury “to determine his guilt or innocence.” Id. (emphasis added). We concluded that because two other instructions both explained that the State had the burden to prove the defendant guilty beyond a reasonable doubt and defined reasonable doubt, the defendant was not prejudiced and counsel was not ineffective. Id. at 103–04. We recently emphasized how the applicable standards differ depending on whether claimed error in jury instructions is preserved or raised by way of ineffective assistance. See Lorenzo Baltazar, 935 N.W.2d 11 at 871–72. A “presumed-prejudice standard applies to preserved errors in jury instructions.” Id. at 871. However, “an ineffective-assistance-ofcounsel claim based on failure to preserve jury instruction error must demonstrate deficiency and prejudice.” Id. at 871–72. We have at times found ineffective assistance of counsel when an element of an offense was omitted from a marshaling instruction. An example is Harris, 891 N.W.2d 182. In Harris, the defendant exited a bar and then struck an individual outside the bar multiples times with a knife. Id. at 184. He was convicted of going armed with intent. Id. at 185. The marshaling instruction, however, “did not include the element of going or moving with specific intent to use [the knife] against [the victim].” Id. The defendant argued his counsel’s failure to object to this omission amounted to ineffective assistance of counsel. Id. In our decision, we acknowledged that “[a] reasonable fact finder could find Harris carried the knife as he moved from inside the bar to the outdoors where he attacked [the victim].” Id. at 187. But this of course did not resolve the issue before us. See id. at 187–89. We noted that the existence of substantial evidence to support a finding of movement “does not control our determination of whether prejudice flowed from the flawed marshalling instruction.” Id. at 189. As we explained, “[W]e must apply the familiar prejudice framework prescribed for ineffective-assistance-ofcounsel claims.” Id. at 188. “Upon review of the record,” we concluded that “our confidence in the jury verdict is undermined because the evidence of Harris’s movement was not great and the flawed jury instruction did not require the jury to make a finding on that element of the crime.” Id. at 189. Harris illustrates that even when a marshaling instruction omits a required element of a crime, a particularized review of the record is needed 12 to determine whether counsel was ineffective in failing to object to the omission. Harris is consistent with prior law. In State v. Propps, we held that counsel was not ineffective in failing to object to the omission of a knowledge element from a marshaling instruction covering the crime of false use of a financial instrument. 376 N.W.2d 619, 623 (Iowa 1985). We noted, “The State does not contend the instruction, as it related to knowledge, was proper.” Id. Yet we concluded, “The State is on firm ground in arguing the defendant has shown no prejudice.” Id. Among other things, we pointed out that “the instructions elsewhere supplied the missing element.” Id. In State v. Douglas, we found that counsel was not ineffective in failing to object to the court’s felony-murder instructions. 485 N.W.2d 619, 621–22 (Iowa 1992). There the defendant, who suffered from epilepsy, raised diminished responsibility as a defense to both first-degree murder alternatives—premeditated murder and felony murder. Id. We discussed what had happened at trial: The trial court submitted an instruction on diminished responsibility on the issue of specific intent to kill [the victim]. As an alternative to this charge of first-degree murder, the court instructed that defendant could be convicted of firstdegree murder if, as an element thereof, he was participating in the offense of first-degree robbery or attempted murder. This alternative did not include an instruction on specific intent or diminished responsibility. Douglas claims trial counsel was ineffective in failing to object to these omissions in instructing on alternative B. Id. Yet we found no ineffective assistance for two reasons. First, the defendant’s expert testimony “belie[d] the suggestion of a nexus between [the defendant’s] acts and his condition of epilepsy.” Id. at 622. Second, the defendant “received the benefit of this defense [diminished capacity] through other instructions by the court.” Id. 13 Likewise, in State v. Heacock, the defendant contended that the marshaling instruction for child endangerment with serious injury was missing a specific intent element. 521 N.W.2d 707, 709 (Iowa 1994). We rejected the claim: We need not resolve the conflicting contentions, even assuming error in the challenged marshaling instruction. For reasons that follow we think Heacock has failed in his burden of showing a different result was probable if the instruction had been worded in accordance with his present theory. Had it been preserved by objection, Heacock’s claimed error may have demanded reversal. But error was not preserved and the fundamental rule is that it was therefore waived. Id. at 709–10. In sum, under cases like Harris, Propps, Douglas, and Heacock, ineffective assistance of counsel does not necessarily occur when defense counsel fails to object that a marshaling instruction does not refer to a required element of a defense—or cross-reference a defense that the State is required to disprove. Instead, one must examine the record and consider the evidence presented, how the case was tried, and what the jury instructions as a whole said. In this case the jury received twenty-seven jury instructions in total. The first eight and the last eight were standard criminal-case instructions. In between, instructions nine through eleven covered the offense charged and lesser included offenses. Instructions twelve through nineteen covered the justification defense. Instruction twelve on justification concluded with the following stand-alone sentence: “The State must prove the Defendant was not acting with justification.” Under these circumstances, we do not share the court of appeals’ concern that “[t]he jurors may well have believed their work was done once they found the State satisfied the elements in the marshaling instruction.” 14 Both sides made justification a focal point of their closing arguments. This helped confirm for the jury that justification was an essential part of its deliberations and that the State had to prove “the Defendant was not acting with justification.” In any event, there was strong evidence that Kuhse did not act with justification. Photographs of V.P.’s and Kuhse’s injuries were admitted at trial. According to the photographs, V.P.’s injuries were much more significant than Kuhse’s. Also, the photographic images matched her testimony. There were multiple fresh abrasions to her neck, elbow, arm, and knee. Meanwhile, the Kuhse photographs showed only a scratch on his nose. There is more. Kuhse’s claim, as relayed through police officer testimony, that V.P. was “bumping into him” and “throwing herself onto his arm” seems implausible. It does not explain her significant neck injuries. By contrast, V.P.’s testimony that she was “swiping at” Kuhse to stop him from strangling her easily accounts for the scratch on his nose. Furthermore, the jury could readily observe the gap in size between V.P. and Kuhse. V.P. was five feet, two inches and 105 pounds; Kuhse was five feet, nine inches and 190 pounds. Also undermining Kuhse’s claim of selfdefense is that V.P. was by herself in the basement while Kuhse had his drinking buddies down there with him. 2 Viewing the instructions and the trial record as a whole, we do not see a reasonable probability of a different outcome if the marshaling instruction on domestic abuse assault causing bodily injury had included or cross-referenced lack of justification. Because we find that Kuhse cannot establish Strickland prejudice, we do not reach the question whether his counsel breached an essential duty. 2Neither of these individuals testified at trial. 15",standard of review
+199,1924309,1,3,"Based on the above, we hold that Auto-Owners was entitled to a judgment as a matter of law as to all of Abston's claims, and that the trial court erred in submitting these claims to the jury. We therefore reverse the judgment of the trial court and render a judgment in favor of Auto-Owners. REVERSED AND JUDGMENT RENDERED. SEE, LYONS, BROWN, WOODALL, and STUART, JJ., concur. JOHNSTONE, J., concurs in part, concurs in the result in part, and dissents in part. MOORE, C.J., and HARWOOD, J., concur in part and dissent in part.",conclusion
+200,1376040,1,5,"Harvey argues the evidence at the bench trial was insufficient to meet two components of the SVP definition: mental abnormality and likelihood of sexual violence. In an appeal regarding sufficiency of the evidence in a SVP case, the appellate court may only reverse the trial court if there is no evidence to support the trial court's ruling. In re Matthews, 345 S.C. 638, 646, 550 S.E.2d 311, 315 (2001), cert. denied, 535 U.S. 1062, 122 S.Ct. 1928, 152 L.Ed.2d 834 (2002). In other words, the court is concerned with the existence of evidence, not its weight. Id. Under the SVP Act, the State bears the burden of proving beyond a reasonable doubt that a person is a sexually violent predator. See S.C.Code Ann. § 44-48-100 (2002). A sexually violent predator is defined as a person who: (a) has been convicted of a sexually violent offense; and (b) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment. § 44-48-30(1)(a) & (b). The Act defines [l]ikely to engage in acts of sexual violence to mean the person's propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others. § 44-48-30(9). Harvey contends the State failed to prove he is a pedophile because Dr. Schwartz-Watts' diagnosis of pedophilia was inconsistent with the DSM-IV criteria. Specifically, Harvey maintains that his acts of sexual misconduct which occurred before he was 16 should not be the basis of a pedophilia diagnosis. Since the DSM-IV criteria clearly indicate that a pedophilia diagnosis is only appropriate if the person is over 16, we share Harvey's concern with the focus placed on his acts. See footnote 3, supra. Moreover, we note the Michigan incident does not satisfy the DSM-IV criteria since Harvey was not five years older than the twin boys. Nonetheless, there remain portions of Dr. Schwartz-Watts' testimony which justify her diagnosis. She testified that Harvey reported having urges after turning sixteen and her diagnosis was based on his present mental state. Technically, this meets the definition of pedophilia. Thus, there was sufficient evidence of a mental abnormality or disorder. See In re Matthews, supra (the court is concerned with the existence of evidence, not its weight). Harvey also argues the State failed to prove that the pedophilia made him likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment. Harvey's argument is based primarily on the United States Supreme Court's holding in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), that there must be proof of a lack of ability to control behavior. In In re Luckabaugh, 351 S.C. 122, 568 S.E.2d 338 (2002), this Court noted that the Crane decision does not mandate a court must separately and specially make a lack of control determination, only that a court must determine the individual lacks control while looking at the totality of the evidence. Id. at 143, 568 S.E.2d at 348. The Luckabaugh Court went on to state the following: Inherent within the mental abnormality prong of the Act is a lack of control determination, i.e. the individual can only be committed if he suffers from a mental illness which he cannot sufficiently control without the structure and care provided by a mental health facility, rendering him likely to commit a dangerous act. Id. at 144, 568 S.E.2d at 349. Thus, the Court concluded the requirements of the SVP Act are the functional equivalent of the requirement in Crane. Id. Accordingly, given Dr. Schwartz-Watts' diagnosis of pedophilia and her testimony that Harvey met the statutory SVP definition, we do not agree the State failed to present evidence of present dangerousness. See In re Matthews, supra . [7]",sufficiency of the evidence
+201,1412115,1,2,Was trial counsel ineffective for failing to object to the solicitor's closing argument stating what uncalled witnesses would have testified to?,issues
+202,2779227,1,4,"A. Claims Against Meloy. We first turn to the question of whether the district court correctly ruled the claims of Vossoughi and C, N, & A, Inc. against Meloy are time-barred. To resolve this issue, we must determine when the injuries claimed by Vossoughi and C, N, & A, Inc. gave rise to a cause of action. If the cause of action accrued more than five years before the plaintiffs filed their amended petition against Meloy on June 26, 2012, we must then evaluate whether the discovery rule extended the limitations period. 1. Actual injury. Legal malpractice claims sound in negligence. Claims based on negligence do not accrue, and the statute of limitations does not begin to run, until the injured plaintiff “has actual or imputed knowledge of all the elements of the action.” Franzen, 377 N.W.2d at 662; accord Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732, 736 (Iowa 2008); Stanley L. & Carolyn M. Watkins Trust v. Lacosta, 92 P.3d 620, 628 (Mont. 2004) (“[T]he statute of limitations in a legal malpractice action does not begin to run until . . . all elements of the legal malpractice claim, including damages, have occurred.”). To establish a prima facie claim of legal malpractice, the plaintiff must produce 10 evidence showing the attorney’s breach of duty caused “actual injury, loss, or damage.” Ruden v. Jenk, 543 N.W.2d 605, 610 (Iowa 1996). Until the attorney’s act or omission that breached the applicable duty “produces injury to claimant’s interest by way of loss or damage, no cause of action accrues.” Wolfswinkel v. Gesink, 180 N.W.2d 452, 456 (Iowa 1970). The injury must be concrete; “an essential element to a legal malpractice cause of action is proof of actual loss rather than a breach of a professional duty causing . . . speculative harm, or the threat of future harm.” 7A C.J.S. Attorney & Client § 303, at 337 (2004). No matter what the plaintiffs knew or when they knew it, the statute of limitations could not have begun to run any earlier than the date an actual injury occurred. The district court relied on Neylan in concluding the date of the plaintiffs’ injuries was either March 29, 2007 (the date the deed was executed), or April 9, 2007 (the date the deed was recorded), and in concluding this action against Meloy was time-barred. The plaintiffs in Neylan brought a legal malpractice action alleging their attorneys had “negligently failed to present adequate evidence to support [the plaintiffs’] claim of damages” at trial. Neylan, 400 N.W.2d at 542. In the malpractice action, the plaintiffs sued their attorneys for the damages they believed should have been recoverable. Id. The defendants asserted the district court’s decision entered against their former clients prior to appeal “should mark the time when a legal malpractice cause of action accrue[d], because the claimant [was] then formally advised of an adverse ruling and resulting damage.” Id. However, we adopted a different view and held the legal malpractice claim accrued when this court affirmed the trial court’s decision on appeal. Id. At that moment, when all avenues to recovery were exhausted and the underlying claims were 11 extinguished, the injury caused by the alleged breach of duty became actual rather than potential. See id. Our decision in Neylan was undergirded by the principle that each client “has a ‘right to rely upon the superior skill and knowledge of his attorney’ ” until that reliance results in actual injury. Id. (quoting Millwright v. Romer, 322 N.W.2d 30, 34 (Iowa 1982)). We also reasoned a litigant who believes she may have been injured through her attorney’s negligence should not be forced to choose between (a) sabotaging her relationship with her attorney during ongoing representation by filing a legal malpractice claim, and (b) waiving her opportunity to bring the claim before the statute of limitations extinguishes it. Id.; accord Dudden v. Goodman, 543 N.W.2d 624, 629 (Iowa Ct. App. 1995) (“[I]t would be palpably unjust and quite unreasonable to require a client of a lawyer to obtain a second opinion on every professional decision the lawyer makes.”); see also Amfac Distrib. Corp. v. Miller, 673 P.2d 795, 799 (Ariz. Ct. App.) (“Under our rule, a client will not have to challenge and question every decision made by his attorney or routinely double check his attorney’s conduct . . . . Thus, the client will have peace of mind to allow the legal process to work fully and finally in hopes that his position will ultimately be vindicated and will not be forced to disrupt his relationship with his lawyer to preserve what he thinks may be a valid malpractice claim.”), approved as supplemented, 673 P.2d 792 (Ariz. 1983) (en banc). We conclude Neylan does not justify summary judgment in Meloy’s favor under the circumstances presented here. The core teaching of Neylan is that speculative injury does not give rise to a legal malpractice claim. See Neylan, 400 N.W.2d at 542. An injury arising from legal malpractice is actionable when it is actual but not when it is merely 12 potential. See, e.g., Huber v. Watson, 568 N.W.2d 787, 790 (Iowa 1997) (requiring as an element of legal malpractice that “the [client] sustained actual injury, loss, or damage” (emphasis added)); Ruden, 543 N.W.2d at 610 (same); Vande Kop v. McGill, 528 N.W.2d 609, 611 (Iowa 1995) (same); Schmitz v. Crotty, 528 N.W.2d 112, 115 (Iowa 1995) (same); Dessel v. Dessel, 431 N.W.2d 359, 361 (Iowa 1988) (same); Burke v. Roberson, 417 N.W.2d 209, 211 (Iowa 1987) (same). To be sure, Neylan did not establish that a legal malpractice claim accrues when a client has not yet suffered actual injury. See Neylan, 400 N.W.2d at 542. Many other jurisdictions follow this rule. See, e.g., Greater Area Inc. v. Bookman, 657 P.2d 828, 829 n.3 (Alaska 1982) (“[I]f the client discovers his attorney’s negligence before he suffers consequential damages, the statute of limitations will not begin to run until the client suffers actual damages.”); Amfac Distrib. Corp., 673 P.2d at 798–99 (adhering to “the time-honored principles of law which require that the plaintiff be damaged or injured in some way as a predicate to bringing an action for negligence”); Jordache Enters., Inc. v. Brobeck, Phleger & Harrison, 958 P.2d 1062, 1070 (Cal. 1998) (“The mere breach of a professional duty, causing only . . . speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence.”); Romano v. Morrisroe, 759 N.E.2d 611, 614 (Ill. App. Ct. 2001) (“No cause of action accrues without actual damages, and damages are only speculative if their existence itself is uncertain.”); Pancake House, Inc. v. Redmond, 716 P.2d 575, 579 (Kan. 1986) (recognizing one theory of accrual is that “the client does not accrue a cause of action for malpractice until he suffers appreciable harm or actual damage as a consequence of his lawyer’s conduct”); Mass. Elec. Co. v. Fletcher, Tilton & Whipple, P.C., 475 N.E.2d 390, 391 (Mass. 1985) 13 (“[T]he electric companies knew immediately of the alleged negligence of the defendant attorneys, but it was not then clear that the alleged negligence had caused or would cause the companies any appreciable harm.”); Watkins Trust, 92 P.3d at 630 (“[T]he mere threat of future harm does not constitute actual damages.”); Semenza v. Nev. Med. Liab. Ins. Co., 765 P.2d 184, 186 (Nev. 1988) (“[W]here damage has not been sustained or where it is too early to know whether damage has been sustained, a legal malpractice action is premature . . . . [I]t follows that a legal malpractice action does not accrue until the plaintiff’s damages are certain and not contingent.”); Grunwald v. Bronkesh, 621 A.2d 459, 464– 65 (N.J. 1993) (“[T]he statute of limitations begins to run only when the client suffers actual damage . . . . Actual damages are those that are real and substantial as opposed to speculative.”); Jaramillo v. Hood, 601 P.2d 66, 67 (N.M. 1979) (“[T]he cause of action accrues when actual loss or damage results . . . .”); Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa. 1998) (“An essential element to [legal malpractice] is proof of actual loss rather than a breach of a professional duty causing only . . . speculative harm or the threat of future harm.”); Ameraccount Club, Inc. v. Hill, 617 S.W.2d 876, 878 (Tenn. 1981) (“The Court of Appeals erred in holding that the plaintiff's cause of action accrued and the statute of limitations began to run when the plaintiff became aware of the negligence of the defendant attorneys; still more was required, viz., damage or injury to the plaintiff resulting from that negligence.”); Hennekens v. Hoerl, 465 N.W.2d 812, 816 (Wis. 1991) (“A tort claim is not ‘capable of present enforcement’ until the plaintiff has suffered actual damage. . . . Actual damage is not the mere possibility of future harm.”). We also find support for the principle that a legal malpractice claim does not arise until actual injury results in the Restatement (Third) of the 14 Law Governing Lawyers, which focuses on pragmatic policy concerns like those we found persuasive in Neylan: [T]he statute of limitations does not start to run until the lawyer’s alleged malpractice has inflicted significant injury. For example, if a lawyer negligently drafts a contract so as to render it arguably unenforceable, the statute of limitations does not start to run until the other contracting party declines to perform or the client suffers comparable injury. Until then, it is unclear whether the lawyer’s malpractice will cause harm. Moreover, to require the client to file suit before then might injure both client and lawyer by attracting the attention of the other contracting party to the problem. Restatement (Third) of the Law Governing Lawyers § 54 cmt. g, at 406 (2000). The statute of limitations cannot require legal malpractice claims to be brought while “the record is uncertain and speculative whether a party has sustained damages.” Crookham v. Riley, 584 N.W.2d 258, 266 (Iowa 1998). Put another way, the statute of limitations cannot sensibly be applied in a way that forces parties to file suit before an actual injury has been sustained on penalty of losing the opportunity to file a claim at all. See Cannon v. Sears, Roebuck & Co., 374 N.E.2d 582, 584 (Mass. 1978). Accordingly, we reaffirm the statute of limitations does not begin to run on a legal malpractice claim until the cause of action accrues. The cause of action accrues when the client sustains an actual, nonspeculative injury and has actual or imputed knowledge 4 of the other elements of the claim. Franzen, 377 N.W.2d at 662 (“[T]he statute of limitations does not begin to run until the injured person has actual or 4Knowledge could be imputed through the doctrine of inquiry notice. We have said “[t]he [limitations] period begins at the time the [plaintiff] is on inquiry notice.” Franzen, 377 N.W.2d at 662. “A party is placed on inquiry notice when a person gains sufficient knowledge of facts that would put that person on notice of the existence of a problem or potential problem.” Buechel, 745 N.W.2d at 736. 15 imputed knowledge of all the elements of the action.” (Emphasis added.)); see Watkins Trust, 92 P.3d at 628. 2. Whether insecurity constitutes an actual injury. The question remains, however, whether the plaintiffs’ insecurity arising from the absence of a mortgage lien against the real estate and a perfected security interest in the personal property constituted an actual injury. We hold insecurity alone does not constitute an actual injury. Until Mark and PPM stopped making payments in February 2008, it was entirely possible the plaintiffs would have continued collecting contract payments without disruption. Accordingly, it was entirely possible the decision to structure the transaction without the protection of a mortgage on the real estate or a perfected security interest in the personal property would cause the sellers no actual injury. See 16 Gregory C. Sisk & Mark S. Cady, Iowa Practice Series: Lawyer and Judicial Ethics § 13:2(b)(2), at 1088 (2014) (“[U]ntil the final bell is rung and the match is truly over, the possibility persists that an unsatisfactory outcome could be avoided . . . because an opponent fails to take advantage of the error.”); see also David B. Lilly Co. v. Fisher, 18 F.3d 1112, 1117–18 (3d Cir. 1994) (determining when an attorney negligently structured a business acquisition transaction by failing to preserve Lilly’s “small business eligibility,” a legal malpractice claim did not accrue until several years later when a competitor challenged Lilly’s small business status); Fritz v. Ehrmann, 39 Cal. Rptr. 3d 670, 676 (Ct. App. 2006) (finding a promissory note with negligently drafted prepayment and interest provisions created only speculative injury because the promisors “might never have had the funds or the inclination to prepay principal, and they might have paid . . . without regard to any ambiguity” in the document). In other words, until the 16 payments stopped, the plaintiffs suffered only the prospect of future harm. See Rayne State Bank & Trust Co. v. Nat’l Union Fire Ins. Co., 483 So. 2d 987, 995 (La. 1986) (“Damage was not sustained by the bank by virtue of the mere existence of defects in the mortgages. At this point, the possibility of damage to the bank was merely speculative, uncertain and contingent on the possibility of an attack on the validity of the mortgages by a third party, or on the possibility that the debtors would declare bankruptcy. In the event that neither of these contingencies occurred, and the debtors continued payment of their indebtedness, no harm at all would have resulted to the bank.”); see also Dearborn Animal Clinic, P.A. v. Wilson, 806 P.2d 997, 1003 (Kan. 1991) (“[T]he alleged negligent act of Wilson occurred at the time he prepared the . . . agreement, and arguably the plaintiffs suffered injury at that time when they did not get the agreement that Dearborn hired Wilson to prepare. However, no actionable injury had occurred because [a third party] might have elected to exercise his option in which case the plaintiffs would have suffered no injury even though Wilson was negligent in preparing the agreement.” (Emphasis added.)); cf. Callahan v. Gibson, Dunn & Crutcher LLP, 125 Cal. Rptr. 3d 120, 133–34 (Ct. App. 2011) (finding no actual injury arose from an executed partnership agreement until its negligently drafted succession provisions became operative). An Idaho case provides an apt illustration. In Parsons Packing, Inc. v. Masingill, 95 P.3d 631, 632–33 (Idaho 2004), the plaintiff alleged its attorney had negligently failed to draft an effective security agreement and failed to file a financing statement to secure its interest in debtor Pro-Ag’s industrial onion bins. The Idaho Supreme Court determined the abstract and theoretical injury Parsons suffered from being placed in a weaker position by the attorney’s failure to secure its interest in the 17 collateral was not the injury that truly gave rise to the legal malpractice claim, and thus was not the injury that controlled the applicable statute of limitations. See id. at 634. Rather, the requisite injury—which, under Idaho law, is “some damage”—only occurred when Pro-Ag defaulted and recovery became impossible: Parsons entered into the Agreement as part of a normal lease and sale transaction and had Pro–Ag not defaulted, each party would have received the intended benefit of the bargain. The onion bins were exchanged for a promise on the part of Pro–Ag to make the agreed payments, which they did until 1998. Although it is true that steps could have been taken to secure Parsons’ interest in the bins in the event of Pro–Ag’s insolvency, bankruptcy was not contemplated and would have been mere speculation in 1992 when the Agreement was executed. Although they were subjected to a greater risk, the Parsons were not damaged by the lack of security in the bins until Pro–Ag’s bankruptcy. . . . For application of the statute of limitation some damage did not occur in 1992. Some damage occurred the date of default, April 14, 1998. Id. A Kentucky Supreme Court decision provides another relevant illustration of the importance of actual injury in our analysis: In April and again in October of 1990, appellee Wheatley conducted a title examination relating to certain real property upon which appellant proposed to make a first mortgage loan to its customers, the Pearmans. His opinion failed to disclose a recorded mortgage. Within a few months after the loan was made, the Pearmans defaulted and appellant commenced preparations to bring an action to enforce its mortgage lien. The prior mortgage lien was then discovered and appellant realized that its loan might be in jeopardy. .... In the present case, the time allowed [for the filing of the legal malpractice action] began to run as of the date of the foreclosure sale. Prior to that date, Appellants had only a fear that they would suffer a loss on the property. Their fear was not realized as damages until the sale of the property in June of 1992. At that time, what was merely 18 probable became fact, and thus commenced the running of the statute. Meade Cnty. Bank v. Wheatley, 910 S.W.2d 233, 234–35 (Ky. 1995). Here, even after the deed from Vossoughi to PPM was recorded, the plaintiffs’ injuries were merely speculative because Mark and PPM continued to make payments, and may have continued to do so until their obligations under the Noncompetition Agreement and Asset and Business Name Purchase Agreement were satisfied. The plaintiffs’ injuries became actual and nonspeculative no earlier than February 2008, when Mark and PPM stopped making payments. 5 “At that time, what was merely probable became fact . . . .” Id.; see also Pioneer Nat’l Title Ins. Co. v. Sabo, 432 F. Supp. 76, 76–77, 79, 81–82 (D. Del. 1977) (finding an insurance company whose hired attorney negligently drafted a title insurance policy to expand the insurance company’s liability suffered injury not when the policy was initially issued, but later, when the overinclusive coverage was actually implicated); Jeansonne v. Att’y’s Liab. Assurance Soc’y, 891 So. 2d 721, 728 (La. Ct. App. 2004) (“Mr. Jeansonne did not sustain damages by the mere existence of the alleged defects in the Promissory Note and Stock Purchase Agreement . . . . The possibility of damage to Mr. Jeansonne was merely speculative, uncertain and contingent on the clause Mr. Jeansonne believed was incorporated into the promissory note and stock purchase agreement. In 5Moreover, because Vossoughi could potentially have recovered the balance of the payment obligations on the remaining two agreements through his action against Mark and PPM for breach of contract, the actual injury might not have arisen until Mark and PPM filed for bankruptcy on May 15, 2008. But further analysis on this temporal question is unnecessary; whether the actual injury occurred in February 2008 when the payments stopped, in May 2008 when Mark and PPM filed for bankruptcy, or even at some later time—perhaps when the bankruptcy court discharged Vossoughi’s contract claims—the amended petition against Meloy on June 26, 2012 was indisputably timely. 19 the event that this contingency did not occur, no harm at all would have resulted . . . .”). 6 3. The discovery rule. The discovery rule can extend the applicable deadline for filing legal malpractice actions. It is “an ameliorative device favoring the right to bring suit” in situations where laypeople rely on professionals and later discover misplaced reliance caused injury. Poole v. Lowe, 615 A.2d 589, 592 (D.C. 1992)). “The rule is based on the theory that a statute of limitations should not bar the remedy of a person who has been excusably unaware of the existence of the cause of action.” Franzen, 377 N.W.2d at 662. 6We acknowledge a few courts have decided insecurity alone constitutes an actual injury for claim accrual purposes. See Ladner v. Inge, 603 So. 2d 1012, 1015 (Ala. 1992) (concluding the plaintiff suffered an actual injury “when she accepted . . . unsecured promissory notes” in exchange for real estate); Vision Mortg. Corp. v. Patricia",analysis
+203,2499448,1,1,"¶ 1 This case presents a certified question of law from the Tenth Circuit Court of Appeals. Dillon Whitney's mother filed a wrongful death suit against the State of Utah after Dillon died while in state custody. The State filed a motion to dismiss, arguing that it was exempt from suit under the incarceration exception to the Governmental Immunity Act of Utah. The federal district court denied the motion and the State appealed. The appeals court certified to us the following question of state law: Is a juvenile delinquent placed in a community-based proctor home incarcerated in a place of legal confinement, such that Utah has not waived its state sovereign immunity for injuries arising out of, in connection with, or resulting from his placement, pursuant to the Governmental Immunity Act of Utah, Utah Code § 63G-7-301(5)(j)? ¶ 2 We conclude that a juvenile who is placed in an unsecured community-based proctor home is not incarcerated in a place of legal confinement. Accordingly, the incarceration exception to the State's waiver of its sovereign immunity does not apply and the State remains potentially liable for damages related to Dillon Whitney's death.",introduction
+204,6497166,1,2,"Mark A. Brunsen appeals from the denial of his motion to set aside, pursuant to § 29-2264, his 1988 conviction of the Class I misdemeanor of theft by receiving a stolen item, $100 to $300. He was sentenced to 4 months in jail, which he served. 1. Prior History and Behavior After Sentencing At the hearing, Brunsen’s attorney, from the civil clinic at the University of Nebraska College of Law, pointed out that Brunsen, who was then 51 years of age, has, since a conviction in 2017, committed no crimes other than minor traffic offenses. Brunsen had “turned [his] life around,” is gainfully employed, and is involved with the local community through volunteering. Brunsen works as a truckdriver and has, for the past 2 years, been employed as an owner/operator leased to a transportation company. He was trying to set aside all eligible prior convictions in order to obtain a transportation worker card, or “TWIC card,” issued by the “TSA and Homeland Security,” which would allow him to take shipping containers in and out of railyards. He also wished to obtain a “HazMat Safety Permit [which] would allow him to haul for local co-ops.” - 371 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRUNSEN Cite as 311 Neb. 368 Brunsen testified that the conviction he was seeking to set aside arose from him being “one of the individuals in a stolen car.” Brunsen felt “[a]shamed, terrible” about that conviction and was “hanging with the wrong people.” He acknowledged a number of “run-ins with the law” from his “teen years through [his] 30s.” He regretted doing “any of those things back then” and wished he “would have got straightened out sooner.” Brunsen explained that he was seeking to set aside the 1988 conviction “to continue on the successful path that I’ve gotten on now and be judged on my character and my merits instead of my past criminal history and offenses.” He said, “I’m not trying to erase my prior mistakes, but I’m — I don’t want to be defined by them.” Brunsen’s criminal history, entered into evidence at the hearing, shows numerous prior convictions, beginning when he was a teenager. These generally involved nonviolent misdemeanor crimes of dishonesty and continued largely unabated until Brunsen approached his forties. In addition to the 1988 conviction, Brunsen’s record contains the following convictions in Nebraska, excluding minor traffic infractions. Brunsen’s criminal record reflects that several of these convictions were set aside in 2020. (a) 1980s In 1986, Brunsen was found guilty of backing against traffic and leaving the scene of a property damage accident. In 1987, he was found guilty of being a minor in possession of liquor and of stealing money or goods less than $300. In 1988, he was found guilty of two counts of stealing money or goods less than $300. He was also found guilty of making a false statement, liquor consumption in a prohibited place, and minor in possession of liquor. In 1989, Brunsen was convicted of felony forgery in the second degree, misdemeanor theft by unlawful taking, failure to appear on a citation, and three counts of stealing money or goods less than $300. - 372 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRUNSEN Cite as 311 Neb. 368 (b) 1990s In 1990, Brunsen was convicted of making a false statement. In 1991, he was found guilty of unlawful possession or consumption of alcohol by a minor and making a false statement. He was also convicted of making a false statement to a police officer and of possessing, selling, or discharging an unlawful firearm. In 1992, Brunsen was convicted of two counts of theft by unlawful taking. In 1993, Brunsen had misdemeanor convictions of insufficient funds check under $100, stealing money or goods less than $500, and failing to appear in court. In 1994, he was convicted of attempting a Class III or IIIA felony, failure to appear, and of an insufficient funds check under $100. In 1995, Brunsen was convicted of issuing a bad check of less than $100, driving during suspension, possessing stolen property, possessing drug paraphernalia, and failure to appear in court. In 1996, Brunsen was convicted of operating a motor vehicle without a license, negligent driving, and failure to appear in court. In 1997, he was convicted of injuring or destroying property of another and negligent driving. In 1998, Brunsen was convicted of false reporting, selling alcohol to a minor, shoplifting, fraudulently obtaining property under $100, and failure to appear. He was convicted in 1999 of violating probation, having fictitious plates/unlawful display, and no valid registration. (c) 2000 to 2012 Brunsen had misdemeanor convictions in 2000 of shoplifting, fraudulently obtaining property under $100, issuing a bad check for less than $100, stealing money or goods less than $300, failure to appear, and attempt of a Class IV felony. He had misdemeanor convictions in 2001 of issuing a bad check for less than $100, possessing drug paraphernalia, and operating a motor vehicle with a suspended license. In 2002, Brunsen was convicted of driving during revocation, stealing money or goods less than $300, and no proof of insurance. In 2003, - 373 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRUNSEN Cite as 311 Neb. 368 Brunsen was convicted of stealing money or goods less than $500 and failure to appear in court. In 2004, he was convicted of having fictitious plates/unlawful display. In 2008, he was found guilty of driving under the influence, first offense, and failing to appear in court. In Colorado, Brunsen was convicted in 2012 of theft under $500. (d) 2017 Conviction The most recent conviction, in 2017, was for attempted possession of a deadly weapon by a prohibited person. Brunsen was sentenced to 12 months’ probation. Brunsen testified at the hearing that the plea-based 2017 conviction stemmed from his staying in a bedroom at his father’s house in 2016. Brunsen’s brother owned a decorative knife that the brother had hung on the wall of the bedroom. Brunsen was using another knife, his own, to secure the bedroom door that could not have a lock mounted in it. The weapons were discovered during a drug raid served on the house. Brunsen asserted that he did not know the knives were considered deadly weapons and prohibited. His counsel explained that when Brunsen was convicted of the underlying felony conviction, they were not. Brunsen described that “[i]t was ignorant on my part,” he “should have been smarter and known about that,” “[i]t was completely my fault. I — I should have known better,” and he regretted it. 2. Discussion at Hearing The State supported setting aside the 1988 conviction, explaining: Judge, in consideration of the statutory factors, the testimony of . . . Brunsen, the passage of the period of time between the subject offense and today’s date, as well as the passage of time of law abiding conduct, the State believes that the set aside should be granted and that . . . Brunsen should be granted the relief sought. State has no objection to the Court ordering that relief. - 374 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRUNSEN Cite as 311 Neb. 368 Brunsen’s counsel argued Brunsen was a good candidate for set aside because he was “owning up” to his mistakes. But the court responded, “Do you not agree that accepting responsibility would also be accepting the consequences of the life you’ve led to this point?” When Brunsen’s counsel suggested that the most recent 2017 conviction was a “blip” of being “caught in a house that had a couple knives,” the court responded that Brunsen was caught in a “house that was being raided for drugs.” (a) Other Set Asides, Legal Effect of Set Asides, and Possible Future Bombing and Bad Publicity The court expressed concern that if it granted the set aside, Brunsen’s record would be “wiped clean,” and that employers checking his criminal history would no longer see the crime. The court then summarized its apprehensions about whether Brunsen was “a good person to take a risk on,” in light of Brunsen’s ambitions as a truckdriver and the court’s perception that other judges had “just signed off” on setting aside Brunsen’s other convictions: See, because here’s what I think: I go ahead and I set this aside and then let’s say, God forbid, . . . Brunsen goes out and does something really stupid. And then, you know, the Journal Star picks up the story and decides, well, geez, this guy, he went to court and he had all these several things set aside, including felony convictions. And, guess what, no judge even looked at the evidence, they just signed off on it, because the County Attorney’s Office signed off on it. I mean this — these are the kinds of things that play around in my head. And he’s a — you know, he’s got a CDL. He’s a truck driver. He’s an owner/operator. He wants to be able to transport hazardous materials. I mean these things are like running through my head here, you know, the kinds of things that, you know, maybe ended up down in Oklahoma City, you know, not too many years ago, when - 375 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRUNSEN Cite as 311 Neb. 368 I was still a child. You know, these are the things that kind of run through my head, and I think, is this really, you know, a good person to take a risk on. Those are the things the Court has to consider, by State law. The Court has to consider those things. And it appears to me like I’m the only Court that has even seen this evidence. And so it kind of lands in my lap. In response, the State clarified that in all the other cases setting aside Brunsen’s eligible prior convictions, the courts had before them the “JUSTICE entries,” Brunsen’s criminal his- tory, and the factual basis for the convictions sought to be set aside. In at least one case where the court set aside a conviction, there was a hearing where Brunsen testified and the court was presented with very similar evidence to that presented in the current hearing. The State also clarified the legal and practical effect of the set aside, if granted. It explained that Brunsen’s criminal record would still reflect the prior conviction, but that it was set aside, and employers would be able to see everything associated with the conviction. The court did not expressly indicate during the hearing whether it accepted these clarifications, but it made no further legal assertions indicating disregard for such clarifications. (b) Alleged Commentary on “Clean Slate Program” During the course of the hearing, Brunsen’s counsel noted that of the approximately 200 clients he had worked with through the “Clean Slate Program,” Brunsen was one of the best candidates for setting aside prior convictions. This led to the court’s inquiring about the program, which counsel explained usually involved referrals from veterans ­organizations and vocational rehabilitation counselors to work with prior criminals to rehabilitate their records, through the “mechanisms that our Legislature has given” in order to “incentivize people to stay on the right path and to reduce recidivism.” - 376 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRUNSEN Cite as 311 Neb. 368 Brunsen’s counsel, in arguing for set aside, pointed out it had been 32 years since the crime in question. The court pointed out that Brunsen has had a lot of convictions since the crime he was seeking to set aside. Counsel responded he did not disagree. The court then said, “And this is — this is how we’re spending our tax dollars in education, as well.” When Brunsen’s counsel responded with his belief these were tax dollars “really well spent,” the court interjected that “reasonable minds could differ.” 3. Court’s Order The court did not pronounce its decision at the hearing. Four days after the hearing, the court issued its written disposition. The court’s order stated simply, “The Court, being fully advised in the premises, now finds that the requested relief should be and hereby is denied.” Thus, it overruled Brunsen’s motion to set aside his 1988 conviction. The court did not make any explicit findings of fact or articulate its reasoning in the order.",facts
+205,1632245,1,2,"¶ 8. This Court has consistently held that review for summary judgment is de novo. Hurdle v. Holloway, 848 So.2d 183, 185 (Miss.2003); Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000); Crain v. Cleveland Lodge 1532, 641 So.2d 1186, 1188 (Miss.1994). A summary judgment motion is only properly granted when no genuine issue of material fact exists. Id. at 304; Miss. R. Civ. P. 56(c). The moving party has the burden of demonstrating that no genuine issue of material fact exists within the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits. Id.; see also Davis v. Hoss, 869 So.2d 397, 401 (Miss. 2004) (noting that the court should review all evidence available to it when making its decision); Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547 (Miss. 1998).",analysis
+206,1908530,1,1,"
+In September 1994, Tracie Washington was employed as a dietary aide and cook at the Friendship Terrace Retirement Home in northwest Washington, D.C. The home housed approximately two hundred elderly residents, and its dining room and kitchen were operated by Guest Services, Inc. This case arises from the involuntary termination of Ms. Washington's employment on September 9 of that year. The circumstances which allegedly led to Ms. Washington's discharge are described in an affidavit which she filed in opposition to Guest Services' motion for summary judgment, and also in Ms. Washington's pretrial deposition. Briefly, Ms. Washington claims that on September 8, 1994, she was preparing a meal for the residents of the home when a fellow worker, Tyrica Martin, began spraying stainless steel cleaner in the area where Ms. Washington was cooking. Ms. Washington stated in her affidavit that [t]he spray is poisonous and if it comes into contact with food it renders the food unwholesome and unfit for human consumption. She asserted that where I stood I could feel the spray on me and I could see the spray entering the food I was preparing. Ms. Washington claimed to have been especially concerned about potential contamination of the food because many of the residents of Friendship Terrace were in ill health. According to Ms. Washington, [t]he law requires that I not prepare nor serve food unless it is appropriately protected from ... contamination. Therefore, in an effort to obey the law, Ms. Washington told to [Ms. Martin] to stop spraying. To me this was a health emergency. The events that followed were described by Ms. Washington in her affidavit: 12. The manager heard what I told the employee and called me into his office and told me that when he tells an employee to do something, I do not have the authority to tell the employee not to do it. He stated that he told the employee to spray, and that by me telling the employee to stop spraying that this was insubordination. 13. I explained to the manager that the spray was entering into the food and that the employee was spraying next to open food which was being cooked. 14. The manager accused me of insubordination. He told me to go home. I went home and when I returned to work the next day I was fired for insubordination. 15. The insubordination I was fired for was for telling the employee to not spray into and around and near the food I was preparing. This was the only act of insubordination I was told that I committed or that I was aware of.
+On February 13, 1996, Ms. Washington filed a complaint against Guest Services, Inc., alleging that her discharge was wrongful. Ms. Washington claimed that her co-worker's conduct in spraying the food with cleaning fluid contravened applicable District of Columbia health and food regulations, [1] and that Guest Services had dismissed her (Ms. Washington) for protesting safety, health, and food code violations on the part of the defendant. On June 17, 1996, Guest Services filed a motion for summary judgment. Guest Services argued that Ms. Washington was an at-will employee [2] and that her allegations, even if true, [3] did not bring her within the only public policy exception to the at-will employment doctrine that had been recognized by this court at the time. See Adams v. George W. Cochran & Co., 597 A.2d 28, 34 (D.C.1991) (holding that an at-will employee may not be discharged for refusal to violate the law). On July 23, 1996, the trial judge granted Guest Services' motion for summary judgment. He held that Ms. Washington had no legal obligation to prevent food from being contaminated or to complain about others contaminating food. Rather, her obligation was not to prepare or serve unfit food. [Guest Services] did not put her to the choice of disobeying that obligation as the price for keeping her job. On July 26, 1996, Ms. Washington filed her notice of appeal.
+Ms. Washington and Guest Services filed their initial briefs in this court on May 8, 1997 and June 3, 1997 respectively. In their submissions, the attorneys debated the question whether Ms. Washington's allegations, if credited, brought her situation within the Adams exception to the at-will doctrine. The case was scheduled for submission without oral argument on November 4, 1997. The appeal was thus still pending on September 23, 1997, when the en banc court issued its decision in Carl II. On December 18, 1997, recognizing that Carl II had added a potential new dimension to Ms. Washington's appeal, this division issued an interim order. Washington v. Guest Servs., Inc., 703 A.2d 646 (D.C.1997) (per curiam) ( Washington I ). We held in Washington I that the trial judge had properly granted Guest Services' motion for summary judgment under the law as it existed prior to Carl II. We further directed counsel to submit their views as to whether the law as enunciated in Carl II applies to the present appeal and, if so, whether the entry of summary judgment in Guest Services' favor remained appropriate. [4] Having considered the parties' supplemental written and oral submissions, we now hold that although the trial judge's decision correctly reflected the case law at the time the motion was decided, the basis for his ruling has been superseded by Carl II.",facts
+207,3135632,1,2,"In 1994, following a jury trial in the circuit court of Cook County, defendant, Cleother Tidwell, was convicted of attempted first degree murder and aggravated battery with a firearm. He was sentenced to an extended term of 55 years’ imprisonment. On direct appeal, defendant argued that the trial court erroneously failed to give a jury instruction on reckless conduct and that his sentence was excessive. The appellate court rejected those contentions. People v. Tidwell, No. 1–94–2655 (1995) (unpublished order under Supreme Court Rule 23). On May 6, 1996, defendant filed a pro se postconviction petition, alleging, in part, that trial counsel had rendered ineffective assistance with regard to a reckless conduct defense and instruction thereon. The appellate court affirmed the circuit court’s summary dismissal of defendant’s petition after granting the public defender’s motion for leave to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987). People v. Tidwell, No. 1–96–3101 (1997) (unpublished order under Supreme Court Rule 23). On December 20, 2006, the successive pro se postconviction petition in this matter was received by the circuit clerk. Therein, defendant alleged, inter alia, that People v. Novak, 163 Ill. 2d 93, 112-13 (1994), cited on direct appeal to support the trial court’s denial of an instruction on reckless conduct under the charging instrument approach, had been overruled by this court’s decision in People v. Kolton, 219 Ill. 2d 353, 364, 367 (2006). In that case, this court held that an offense may be considered a lesser-included offense even if every element of the lesser offense is not explicitly contained in the indictment as long as the missing element can be reasonably -2- inferred. On the basis of Kolston’s reasoning, defendant claimed that an instruction on reckless conduct as a lesser-included offense of attempted murder should have been tendered at trial. Though no motion accompanied the petition, and defendant made no express request for leave to file same, the circuit court nonetheless considered the allegations of defendant’s petition as they bore upon the threshold issue of cause and prejudice, and ultimately issued a thorough six-page order, concluding that defendant had failed to satisfy the cause-and-prejudice test. The circuit court noted: “In petitioner’s case, he was charged with attempted first degree murder for shooting the victim with intent to kill and with aggravated battery for shooting her intentionally and knowingly. Reckless conduct is defined as consciously disregarding a risk. ‘It is not defined in the charging instrument and thus under Novak, defendant was not entitled to an instruction on it.’ [Order at 4, quoting from the appellate court’s 1995 Order.]",facts
+208,4471388,1,2,"We have reviewed de novo the district court’s determination that Torres failed to allege sufficient facts that demonstrate a violation of his constitutional rights and find no error in this determination. Accordingly, we affirm the district court’s order which denied postconviction relief. Affirmed. Freudenberg, J., not participating.",conclusion
+209,1060443,1,4,"The Fourth Amendment to the United States Constitution provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... Article I, section 7 of the Tennessee Constitution similarly prohibits unreasonable searches and seizures, and we have long held that this provision is identical in intent and purpose with the Fourth Amendment. See, e.g., State v. Binette, 33 S.W.3d 215, 218 (Tenn.2000); State v. Vineyard, 958 S.W.2d 730, 733 (Tenn.1997). When examining the scope and application of the prohibition against unreasonable searches and seizures, we must be cognizant that the essence of this protection is to `safeguard the privacy and security of individuals against arbitrary invasions of government officials.' Downey, 945 S.W.2d at 106 (quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). Without question, the temporary detention of individuals during the stop of a vehicle by police, even if only for a brief period and for a limited purpose, constitutes a `seizure' which implicates the protection of both the state and federal constitutional provisions. Vineyard, 958 S.W.2d at 734; State v. Yeargan, 958 S.W.2d 626, 631 (Tenn.1997). When an officer stops a motorist with probable cause or reasonable suspicion to believe that unlawful conduct has occurred, the stop is generally considered constitutionally reasonable under both the Fourth Amendment and Article I, section 7. Vineyard, 958 S.W.2d at 734. On the other hand, when an officer lacks even reasonable suspicion that criminal activity has taken place, his or her law enforcement authority is limited to informal questioning of the persons involved. State v. Crutcher, 989 S.W.2d 295, 300 (Tenn.1999); see also State v. Daniel, 12 S.W.3d 420, 425 (Tenn.2000). In one limited circumstance, however, this Court has permitted officers to stop and detain a vehicle without even a modicum of suspicion of unlawful conduct. In State v. Downey, 945 S.W.2d 102 (Tenn.1997), this Court held that officers may stop motorists at a roadblock to detect drivers operating under the influence of alcohol, even though the conduct of the motorists was otherwise ordinary, innocent, and free from suspicion. We acknowledged that this holding was a departure from the fundamental requirement that no seizure may occur without at least a founded suspicion based on articulable facts that the person is or has engaged in criminal activity. Id. at 104. Nevertheless, we concluded that a sobriety roadblock may be constitutionally reasonable so long as an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field, and the seizure is carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Id. at 110. Accordingly, the essential questions to be resolved in this case are whether the roadblock at issue was permissible in light of Article I, section 7 of the Tennessee Constitution, our decision in Downey , and various protections afforded by statute.
+Because courts should not generally decide constitutional issues if the case may be properly resolved on nonconstitutional grounds, see State v. Burdin, 924 S.W.2d 82, 87 (Tenn.1996); Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995), we first address whether the evidence in this case should have been suppressed because local police officers unlawfully stopped motorists to check drivers' licenses and vehicle registrations. Tennessee Code Annotated section 55-50-351(a) provides that [I]t is unlawful for any law enforcement officer of this state, except a state patrol officer or officer of the department, to demand the exhibition of such [drivers'] licenses, unless the operator of the motor vehicle is then engaged in, or immediately prior to such demand has been engaged in, a violation of any municipal ordinance or statute law of this state. In addition, Tennessee Code Annotated section 40-7-103(c) (1997) provides that no officer except members of the Tennessee highway patrol acting pursuant to [section] 4-7-104, shall have the authority to stop a motor vehicle for the sole purpose of examining or checking the operator's license of the driver of such vehicle. Citing both of these statutes, the appellant argues that the roadblock in this case was statutorily illegal because officers other than those with the Tennessee Highway Patrol actually stopped his car and requested to see his operator's license. A majority of the intermediate court found that these statutes conflicted with Tennessee Code Annotated section 55-50-804 (1998), which requires a driver to display his or her license upon demand of any officer or agent of the department or any police officer of the state, county or municipality.... The majority then held that the conflict between section 55-50-804 and the statutes cited by the appellant should be resolved in favor of the former because it was the last in time to be enacted. Writing in dissent, Judge Tipton opined that the statutes cited by the appellant have not been superseded by section 55-50-804 because all three statutes can be harmoniously construed to permit local officers to request an operator's license, so long as those same officers do not initiate the stop in order to do so. We disagree with the majority of the Court of Criminal Appeals in so far as it found an irreconcilable conflict between these statutes. The legislature is always presumed to know of its prior enactments, see, e.g., State v. Levandowski, 955 S.W.2d 603, 604 (Tenn.1997), and consequently, courts should find repeals by implication only when statutes cannot be construed harmoniously, see, e.g., Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn.1995). In this case, the various statutes can be reasonably construed so as to give effect to each, and we find no need to resort to the last-in-time canon of construction to resolve a supposed conflict. Section 55-50-804 does not address the ability of officers to initiate a stop of a motor vehicle to conduct a license check, but it speaks only to the general authority of officers to request a driver to display his or her license. On the other hand, sections 55-50-351(a) and 40-7-103(c) are quite emphatic that only state highway patrol officers possess the authority to initiate the stop of a vehicle for this purpose, and these two statutes do not speak to whether other officers may request a license after a stop has been initiated. Consequently, we agree with Judge Tipton that the legislature probably intended for section 55-50-804 to apply only to motorists that have already been stopped for a violation of the law. Assuming this to be the case, then, the roadblock at issue here was in clear violation of sections 55-50-351(a) and 40-7-103(c) because the record unequivocally shows that the appellant's stop was initiated by local police officers. However, our finding that the roadblock in this case was operated contrary to statutory requirements does not necessarily resolve the issue of whether the evidence seized as a result of this roadblock should be suppressed. Importantly, suppression of evidence is not required if the statutory violation does not actually infringe upon a specific constitutional protection or guarantee. See Walton, 41 S.W.3d at 93. Judge Tipton believed that because the statutes represented a legislative declaration that seizures contrary to the statute were unreasonable, the violation of sections 55-50-351(a) and 40-7-103(c) warranted suppression of the evidence obtained from the roadblock. While this view may have possessed some merit at the time that Judge Tipton penned his dissent, we are reluctant to adopt a similar holding today. Since the time that this case was pending before the intermediate court, the legislature has amended section 55-50-351(a) to permit any police officer of the state, county, or municipality to request display of drivers' licenses. See 2001 Tenn. Pub. Acts ch. 700, § 12 (effective July 1, 2001). Accordingly, any legislative declaration in this regard must be weighed in favor of approving the stop. Moreover, we have found no authority for holding that the employment status of the officer requesting to see the license may alone be determinative of the constitutional reasonableness of the seizure. Instead, the statutory violation appears relevant only to the extent that it, along with other factors, contributes to finding an unreasonable intrusion on the liberty and privacy of motorists. Therefore, because resolution of this statutory issue does not lead to a full and proper resolution of the case, we must address the constitutionality of the roadblock itself.
+Our decision in State v. Downey did not address the constitutional propriety of roadblocks for purposes other than to detect motorists driving under the influence of alcohol. Recognizing this fact, the appellant has urged this Court to find that roadblocks established for the sole purpose of checking drivers' licenses and vehicle registration are unconstitutional per se under the federal and state constitutions. Although the United States Supreme Court has never expressly held that drivers' license roadblocks are constitutionally permissible under the Fourth Amendment, it has suggested that such may be the case upon a proper showing. For example, in Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the United States Supreme Court held that motorists could not be randomly stopped by officers checking for drivers' licenses or vehicle registration, but it noted that the questioning of all motorists at a roadblock could be one possible alternative. The Court has also acknowledged this view, albeit in dicta, in at least two cases since Prouse . See City of Indianapolis v. Edmond, 531 U.S. 32, 39-40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000); Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion). Nevertheless, the issue of whether a drivers' license roadblock is constitutionally permissible under the Tennessee Constitution has not been decided by this Court. We acknowledged in Downey that although federal cases interpreting the Fourth Amendment are particularly persuasive authority for construing Article I, section 7, the Tennessee Constitution can provide greater protection for its citizens against unreasonable searches and seizures. See 945 S.W.2d at 106. Accordingly, in analyzing the constitutionality of roadblocks under Article I, section 7, we adopted the test similar to that established in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), which generally analyzes the reasonableness of seizures that are less intrusive than full arrest. See id. at 110. As applied by Downey to roadblocks, this test examines three factors: (1) the gravity of the public concerns served by the roadblock; (2) the degree to which the roadblock advances the public interest; and (3) the severity of the roadblock's interference with an individual's liberty or privacy. See id. at 107-08; cf. Brown, 443 U.S. at 50-51, 99 S.Ct. 2637; Michigan v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). We reaffirm that the test adopted in Downey is to be applied in all cases involving constitutional challenges to roadblocks or checkpoints under the Tennessee Constitution. Although the Court of Criminal Appeals analyzed the issues in this case as constituting per se and as applied challenges, Downey made no such constitutional distinctions. It may be true that when the State cannot identify a sufficiently grave public concern justifying a roadblock, the roadblock could be characterized as being unconstitutional per se. It may also be true that when a roadblock exhibits an unreasonable level of intrusion on liberty or privacy, it may be characterized as being unconstitutional as applied. However, these characterizations encourage analysis outside of the test adopted in Downey , and this analysis creates a heightened danger that constitutional standards will not be uniformly and consistently applied. Accordingly, we decline to address the arguments in terms of unconstitutionality per se and as applied and instead continue to determine the reasonableness of this roadblock by using the three-pronged test as set forth in Downey .
+With respect to the gravity of the public concerns served by drivers' license roadblocks, we must first identify the state interest in maintaining such roadblocks and then determine whether this interest is sufficiently compelling to abrogate constitutional protections against suspicionless stops. The presence of a sufficiently compelling state interest justifying a warrantless seizure at a checkpoint is an important, if not essential, factor going to the overall constitutional reasonableness of any such stop. The need and importance of this factor were acknowledged in Downey , which devoted considerable attention to examining whether the State possessed a sufficiently compelling interest in maintaining sobriety checkpoints. Moreover, persuasive authority for initially requiring the presence of a sufficiently compelling state interest can be found in other cases decided since Downey 's release, perhaps most notably the recent decision from the United States Supreme Court in City of Indianapolis v. Edmond . In that case, the Court held a roadblock unconstitutional solely because its primary purpose contravene[d] the Fourth Amendment. See 531 U.S. at 42, 121 S.Ct. 447. Therefore, we believe that critical examination of the nature and presence of the state interest involved is an important and essential factor in ascertaining the reasonableness of any roadblock. As such, we first undertake a careful study of the State's asserted interest in this case and of the proof in the record to support the presence of this interest.",analysis
+210,2158767,1,3,"When determining whether an award of alimony is appropriate under the facts of a particular case, we have stated: Alimony is a stipend to a spouse in lieu of the other spouse's legal obligation for support. Alimony is not an absolute right, and an award thereof depends upon the circumstances of a particular case. When making or denying an alimony award, the trial court considers the factors set forth in Iowa Code section 598.21(3). Although our review of the trial court's award is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity. In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996) (citations omitted). Iowa Code section 598.21(3) (2003) describes the various factors the court considers in ordering support payments to a party in a dissolution case. The factors relevant to the instant case include: (1) the length of the marriage; (2) the age and physical and emotional health of the parties; (3) the distribution of property; (4) the educational level of each party at the time of marriage and at the time the action is commenced; (5) the earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, responsibilities for children under either an award of custody or physical care, and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment; (6) the feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time necessary to achieve this goal; (7) the tax consequences to each party; and (8) other factors the court may determine to be relevant in an individual case. Iowa Code § 598.21(3)( a )-( g ), ( j ). The district court awarded Mary traditional alimony. Traditional alimony is payable for life or so long as a spouse is incapable of self-support. In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989). The court of appeals modified the alimony award by awarding Mary rehabilitative alimony stating that it would be more equitable to do so. Rehabilitative alimony is a way of supporting an economically dependent spouse through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting. Id. at 63-64 (citations omitted). We disagree with the court of appeals that the district court award of traditional alimony did not do equity between the parties. Mary was forty-eight years old and had just completed her cancer treatments at the time the court dissolved her twenty-three-year marriage. She suffers from diabetes with lethargy and peripheral neuropathy. She also has fibromyalgia and depression. She is on medication for her health conditions. These conditions will cause her to incur substantial medical, insurance, and prescription costs. Mary's educational background includes one year of college, but she has no significant work history. Based upon her health and her prior educational background, we agree with the district court that she would be able to earn approximately $8 per hour when she enters the job market. We also agree with the district court finding that she cannot be reeducated and retrained in a limited period to allow her to become self-supporting. The alimony awarded by the district court together with an $8 per hour earning capacity would just barely allow her to maintain a standard of living reasonably comparable to that enjoyed during the marriage. Although Mary received significantly more in property distribution than Guy did, Guy received the residence. If Guy continues to make the payments on the residence, he should obtain substantial equity in the residence due to the mortgage payments and any appreciation of the residence. On the other hand, Mary will have to use the money she received in the property distribution to replace her deteriorating vehicle, pay off her credit card debts, and find a suitable place to live. Finally, the federal and state governments will tax Mary's alimony, while Guy will receive a deduction on his tax returns for the alimony he pays. All these factors lead us to the conclusion the district court was correct when it awarded Mary traditional alimony. Guy argues Mary's gambling should be considered among the [o]ther factors the court may determine to be relevant in an individual case in making an alimony award. Iowa Code § 598.21(3)( j ). However, the overriding legislative purpose of the dissolution act is to remove fault-based standards for termination of marriages. In re Marriage of Williams, 199 N.W.2d 339, 344 (Iowa 1972). There we held: not only the guilty party concept must be eliminated but evidence of the conduct of the parties insofar as it tends to place fault for the marriage breakdown on either spouse must also be rejected as a factor in awarding property settlement or an allowance of alimony or support money. Id. at 345 (emphasis added); see also In re Marriage of Goodwin, 606 N.W.2d 315, 324 (Iowa 2000) (rejecting the contention that domestic abuse should be considered under the catchall provision in property distribution because it would introduce the concept of fault into a dissolution-of-marriage action). In this case, Guy stated he desired a divorce from Mary only because he could not continue to stand by while Mary ran up more bills and spent more money that [he and Mary] couldn't pay. This statement referred to Mary's gambling and credit card debts. Thus, the consideration of Mary's gambling problem under section 598.21(3)( j ) for the alimony award would be improper in view of the no-fault dissolution concept practiced in this state. Another argument Guy makes for consideration of Mary's gambling problem is based on her dissipation of the marital assets during the marriage. We have recognized it is proper for the court to consider a person's dissipation of assets when it makes a property distribution. See Goodwin, 606 N.W.2d at 321 (observing that a spouse's disposal of assets that would otherwise be subject to division in the dissolution may properly be considered in making an equitable distribution of the parties' property). Our court of appeals has applied this proposition in the context of a party's gambling debts. See In re Marriage of Bell, 576 N.W.2d 618, 624-25 (Iowa Ct.App.1998) (considering conduct of the husband in the property distribution based on the finding that the amounts of money [the husband] spent on gambling after the initiation of the dissolution proceedings [was] wasteful of marital assets), abrogated on other grounds by In re Marriage of Wendell, 581 N.W.2d 197, 200 (Iowa Ct.App.1998). The issue on appeal, however, does not concern the property settlement. We have also recognized that the court can consider an intentional dissipation of assets to avoid future support payments when it makes an award of alimony. See In re Marriage of Cerven, 335 N.W.2d 143, 146 (Iowa 1983) (stating that if the purpose of transferring one's assets prior to a dissolution of marriage is to protect oneself from future alimony payments, the court may look to the amount transferred in fixing alimony). We are not, however, now confronted with such a situation. Moreover, we should not consider the constraints a payor spouse would like to place on the payee spouse when the payee spouse uses the support in a manner inconsistent with the wishes of the payor spouse. Nor should a court punish a person who is entitled to support because we disapprove of the way the person receiving the support spends the support. Mary is entitled to support because of the factors set forth in Iowa Code section 598.21(3). Those factors indicate Mary is entitled to traditional alimony due to the minimal property distribution, her poor health, the length of the marriage, and the disparity in earning potential. If Mary spends her support on gambling, rather than on the necessities of life, she will have to live with the consequences of that decision, not Guy.",analysis
+211,6350670,1,2,"[1] Statutory interpretation presents a question of law that an appellate court resolves independently of the trial court. See State v. Riessland, 310 Neb. 262, 965 N.W.2d 13 (2021).",standard of review
+212,2128994,1,4,"Prior to the examination of witness Carney, it had been agreed by the prosecuting attorney and the defense, with the approval of the court, that the examination of such witness would be conducted without reference to the robbery that was being carried out at the time the defendant fired the shot previously mentioned. Apparently, this was done in order that the jury not be informed of prior criminal involvement of the defendant which was not a part of the crime charged. Thereafter, State's witness, Sharon Bermingham, was called to testify concerning an admission made to her by the defendant, and the following colloquy transpired: Q And did Billie Keith Carmon say anything to you or to your husband after he woke you up? A Yes. Q What did he tell you and your husband or your husband? A He said that he just killed a man and we didn't believe him and — Q Did he say anything else? A Yes, he said he robbed a gas station and he dumped the body in Wolf Lake River he said. Q Did he tell you the person he killed? A No. Q Did he tell you he dumped the body in Wolf Lake? A Yes. Q How long did you — was Billie Keith Carmon at your home that morning? A I'd say perhaps approximately maybe an hour and a half. Q Was any of these other people present when he made these statements of killing someone and robbing, stealing from the gas station and dumping the body in Wolf Lake? A Yes. Q Who were the people that were present? A Barbara Wings my husband and Robert Caskey and Walter Bermingham. Q Now, Barbara Wings is she also have the name of Barbara Caskey that you know of? A Yes. Q Do you know where she is at today? A No. Q Walter Carmon did you say? A Bermingham. Q Walter Bermingham do you know where he is at today? A No. Q Jimmie Bermingham do you know where he is today? A Yes. Q Would you tell me where he is at? A No. Q Do you know where Robert Caskey is today? A Yes. Q Would you tell me where he is at? A In prison I am not sure which prison. Q You don't know? A No. Q Mrs. Bermingham after Billie Keith Carmon had told you that he killed somebody and dumped the body in Wolf Lake, he robbed the filling station did he say where he who he robbed? A No. Q Didn't mention any filling station? A He said robbed a place that is all I heard him say. Q Did you see him with a gun at that time? A No. Q You didn't see a gun? A No. BY MR. STANTON: I would ask your Honor that the jury be excused. BY THE COURT: Jurors will be excused. Whereupon, the defendant moved for a mistrial by reason of the references to the defendant's involvement in the robbery. The trial judge overruled this motion but thoroughly admonished the jury to disregard all testimony regarding the robbery. An admonishment presumptively cures error in the admission of evidence, unless the contrary is shown. Hubbard v. State, (1974) 262 Ind. 176, 313 N.E.2d 346; Martin v. State, (1974) 261 Ind. 492, 306 N.E.2d 93; Davis v. State, (1971) 257 Ind. 46, 271 N.E.2d 893. No such showing was made in this case. The trial judge has great discretion in determining whether or not to grant a motion for a mistrial, and reversal will result only from clear error in his ruling. White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312. There was no such error in this case. We find no reversible error, and the judgment of the trial court is affirmed. GIVAN, C.J., and ARTERBURN, DeBRULER and HUNTER, JJ., concur.",issues
+213,1771142,1,7,"The first five assignments of error deal with the jurisdiction of the chancery court to enjoin or declare unconstitutional this statute. Generally courts of equity are prohibited from enjoining the assessment, appraisal or collection of taxes. Lewis v. Mass Appraisal Services, Inc., 396 So.2d 35 (Miss. 1981); Coulson v. Harris, 43 Miss. 728 (1871). However, injunctive relief is available in cases of equity jurisdiction or when specially authorized by statute. McDonald v. Murphree, 45 Miss. 705 (1871); see also, Stone v. Kerr, 194 Miss. 646, 10 So.2d 845, 847 (1942) (citing and affirming Murphree ); State Tax Commission v. Fondren, 387 So.2d 712, 723-24 (Miss. 1980) (equity may enjoin collection of taxes in certain cases). This Court must determine whether either of these bases of injunctive jurisdiction existed in the present case.
+Subject matter jurisdiction ... the authority of a court to hear a given case at all — turns on the type of case at issue. Dye v. State, Ex rel. Hale, 507 So.2d 332, 337 (Miss. 1987). Jurisdictionally cases are generally classified by the nature of the primary right asserted or the remedy sought. Against this backdrop we consider the jurisdictional statute, Section 11-13-11, which provides: The chancery court shall have jurisdiction of suits by one or more taxpayers in any county, city, town, or village, to restrain the collection of any taxes levied or attempted to be collected without authority of law. To determine if we have before us a case within chancery court jurisdiction, as defined by § 11-13-11 we turn to the well pleaded allegations of the complaint which, for jurisdictional purposes, are taken as true. In Re City of Ridgeland, 494 So.2d 348, 350 (Miss. 1986); American Fidelity Fire Insurance Co. v. Athens Stove Works, Inc., 481 So.2d 292, 296 (Miss. 1985); Luckett v. Mississippi Wood, Inc., 481 So.2d 288, 290-91 (Miss. 1985). When we refer to the complaint, we find that the plaintiffs have sought an injunction to restrain the collection of taxes levied or attempted to be collected without authority of law. Plaintiffs thus appear to have asserted a claim within the subject matter jurisdiction of the chancery court. Subsequent interpretations of this statute appear to require that: (1) The aggrieved taxpayer in order to have standing must allege an inadequate remedy at law in his complaint. See Lewis v. Mass Appraisal Services, Inc., 396 So.2d 35-38 (Miss. 1981); (2) that in fact there exists no adequate remedy at law which the taxpayer may avail himself to. See Stone v. Kerr, 194 Miss. 646, 10 So.2d 845 (1942); Fondren v. State Tax Commission, 350 So.2d 1329, 1333-34 (Miss. 1977); (3) that the taxpayers allegations of fact, if proved, warrant a conclusion that the challenged taxes are being levied or collected without authority of law. Fondren v. State Tax Commission, 350 So.2d 1329, 1334-45 (Miss. 1977). Although Marx cites and recognizes the holdings in these cases, he nevertheless contends that § 27-65-71 expressly precludes the use of § 11-13-11 as a means of enjoining the collection of sales taxes under the sales tax chapter. See, Miss. Code Ann., § 27-65-71 (1972) [providing the provisions of Section 11-13-11, Miss.Code Annotated (1972) shall not apply to taxes imposed by this chapter (§§ 27-65-1, et seq.)]. This same argument was raised in Stone v. Kerr, supra , and the court declined to determine whether Section 430 of the 1930 Code, predecessor to § 11-13-11, vested constitutional authority in chancery courts to enjoin the collection or assessment of taxes pursuant to 159(f) of the Constitution even though the language of Chapter 113, Laws 1938, which like § 27-65-71, expressly exempted the application of Section 430 to that chapter. Stone, 10 So.2d at 846-47. Instead, the court found that the taxpayer had failed to avail himself to an adequate remedy at law, the refund statute provided that the circuit court could refund any portion of the tax which was improperly collected with interest. The court added that the taxpayers' suit involved a mere irregularity in the computation of taxes due and that Section 430 required that the taxes be collected without authority of law before the chancery court could properly enjoin the tax commission. Stone, 10 So.2d at 848. Although the court in Stone left unanswered the question concerning the application of 159(f), we are of the opinion that regardless of the constitutional arguments, once a complaint has been filed demanding relief of the sort contemplated by Section 11-13-11, the chancery court has subject matter jurisdiction. If the plaintiff proves his claim the chancery courts not only may, but generally ought to enjoin the collection or assessment of taxes. Section 11-13-11 and its predecessors were passed by the legislature in direct response to the judicial rulings denying chancery courts jurisdiction over matters such as are present in the current case. See Stone v. Kerr, 10 So.2d at 847. [Discussing the reasons for adoption of Section 1831 of the 1880 Code (subsequently codified at Section 420, 1930 Code and Section 11-13-11, Miss. Code Ann., (1972).)] The statute itself is nothing more than a codification of the traditional requirement of equity jurisdiction with the legislatively added requirement that the taxes must be collected without authority of law. This is borne out when one notes the following passage found in State Tax Commission v. Fondren, 387 So.2d 712 (Miss. 1980), wherein Justice Sugg writing for the court en banc, noted: We adhere to our former finding and state further that these suits could have been brought in equity absent section 11-13-11 under the maxim, Equity will not suffer a wrong without a remedy. ... Complainants have suffered a wrong; they are entitled to remedy for this wrong; no adequate remedy exists at law; therefore, they properly invoked the injunctive power of equity to remedy a wrong. State Tax Commission v. Fondren 387 So.2d at 723-24. In both the Fondren cases, jurisdiction was accepted under Section 11-13-11 because the complainant's case met the previously mentioned requirements of the statute. In the two cases found not within § 11-13-11 jurisdiction was denied, the taxpayer had an adequate remedy at law and therefore did not need the injunctive protection afforded by the statute. See Stone v. Kerr, 194 Miss. 646, 10 So.2d 845 (1942); Lewis v. Mass Appraisal Inc., 396 So.2d 35 (Miss. 1981). If the language of Section 27-65-71 were interpreted to bar the application of § 11-13-11 even though the requirements of the statute had been met, the effect would be to deny the taxpayer any remedy at all for an alleged wrong. Surely, the intent of the legislature was not to create a remedy and subsequently deny it. Thus, we are of the opinion that the language of § 27-65-71 which purports to bar application of § 11-13-11 is only effective if the case fails to meet the legislatively and judicially created requirements necessary to invoke jurisdiction under § 11-13-11. In the present case TRLA and the other plaintiffs have complied with the requirements of § 11-13-11. First, the complaint specifically alleges that there is an inadequate remedy at law. Further, while TRLA does not specifically cite § 11-13-11 as grounds for jurisdiction, the complaint does include sufficient allegations notifying both the court and opposing party that the case falls within the language of § 11-13-11. See Miss.R.Civ.P. Rule 8(a) and (f) (technical pleadings not required).
+The next question to be resolved is whether there was an adequate remedy at law available to TRLA. Marx contends that the refund statute (§ 27-65-47) provides that where there is a dispute as to any tax imposed, the aggrieved taxpayer should pay the taxes and then seek a remittance plus interest for the amounts deemed to be improperly paid. This statute does provide an adequate remedy where there has been an error in the calculation of the taxes to be paid. However, TRLA and the other plaintiffs are not seeking a new calculation of their taxes or challenging the amount of the taxes. Instead, they are contending that the State may not tax them at all because the tax violates the commerce clause. This claim is identical to the claim in Fondren v. State Tax Commission, 350 So.2d 1329 (Miss. 1977), because TRLA does not allege mere error in computing the taxes, rather he alleges a constitutional violation and seeks injunctive relief to prevent a continuing trespass, injury, or other wrong. Fondren, 350 So.2d at 1334 (citing Stone v. Kerr ). The refund statute does not afford adequate relief from alleged constitutional violations and therefore this requirement has been met.
+Finally, we must determine whether the allegations, if proved, warrant a conclusion that the taxes are being collected or levied without authority of law. This inquiry does not require a determination as to whether the allegations are in fact true, rather, it simply requires that this Court determine whether the allegations state a claim which, if proved, would entitle the taxpayer to relief. In the present case, if TRLA successfully proves that the challenged statute does violate the commerce clause, undoubtedly they would be entitled to relief and thus injunctive relief under § 11-13-11 is appropriate in this case. Furthermore the chancery court has authority to enjoin the tax commission under its general equity power as provided for by § 159(a) of the Mississippi Constitution (1890). One important maxim of equity provides equity will not suffer a wrong without a remedy. This has been construed to vest a taxpayer with a right that the collection of taxes be enjoined where the taxpayer has no adequate remedy at law. See State Tax Commission v. Fondren, 387 So.2d 712, 713-14. We previously noted that the refund statute within the sales tax statute does not provide an adequate remedy at law, and we additionally find that the chancellor also correctly found that he had jurisdiction under the chancery court's general equity powers.",jurisdiction
+214,853719,2,1,"Chapman first argues that there was insufficient evidence to prove beyond a reasonable doubt that he committed a knowing or intentional killing. Our standard of review for sufficiency of the evidence claims is well established. We do not reweigh evidence or assess the credibility of witnesses. We look to the evidence and reasonable inferences drawn therefrom that support the verdict and will affirm the conviction if there is sufficient probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Taylor v. State, 681 N.E.2d 1105, 1110 (Ind.1997). [T]he use of a deadly weapon in a manner likely to cause death or serious bodily injury is sufficient evidence of intent to support a conviction for murder. Torres v. State, 673 N.E.2d 472, 473 (Ind.1996) (citing Light v. State, 547 N.E.2d 1073, 1082 (Ind.1989)); accord Storey v. State, 552 N.E.2d 477, 480 (Ind.1990) (The use of a deadly weapon in a manner likely to cause death or great bodily harm permits the jury to infer the defendant's knowledge that he was killing another.). Smith and Washington saw Chapman hold a gun to C.J.'s head and fire it, and J.D. heard the gunshot immediately before C.J. fell over against him. Moreover, immediately before the shooting Chapman asked C.J. if he wanted to catch a bullet or take a bullet. This is sufficient evidence to support the jury's verdict of a knowing or intentional killing. [2]",sufficiency of the evidence
+215,2637915,1,3,"[¶ 8] A summary judgment is affirmed only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c). Summary judgment is inappropriate to resolve factual disputes, so this Court does not weigh disputed evidence. The party who opposed the motion is given the benefit of any reasonable doubt, and inferences drawn from the affidavits, depositions, and exhibits presented as underlying facts are viewed in the light most favorable to that party. An issue of material fact which would preclude summary judgment is found when a disputed fact, if proven, would establish or refute one of the essential elements of a cause of action or a defense which has been asserted; this Court affords no deference to the district court's decisions on issues of law. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994).",standard of review
+216,1839257,1,4,"Not specifically addressed in the trial court's judgment is Smith's assertion of the affirmative defenses of waiver, laches, estoppel, and the applicable statute of limitations. Smith claims that the equitable doctrines of waiver and laches defeat the plaintiffs' claim because the plaintiffs delayed 14 years before bringing this action for Smith's removal as sole member of the Architectural Control Committee. Further, says Smith, under Ala.Code 1975, § 6-2-34(6) (Actions for the use and occupation of land), the plaintiffs' action is barred by the applicable six-year statute of limitations. We hold that the facts of the instant case do not invoke the application of § 6-2-34(6), and that the doctrine of laches does not bar this action, because Smith has not shown that the delay in bringing this action resulted in any prejudice to him. See Darden v. Meadows, 259 Ala. 676, 68 So.2d 709 (1953). Because we find no basis for reversal, the judgment of the trial court is hereby affirmed. AFFIRMED. HORNSBY, C.J., and SHORES, ADAMS and HOUSTON, JJ., concur.",issues
+217,1723449,1,1,"¶ 1. This is an uninsured motorist (UM) case which calls upon this Court to determine the extent to which a UM carrier may validly offset the UM limits applicable to a particular UM insured by amounts paid on behalf of the driver of an underinsured vehicle. This Court reaffirms prior holdings permitting the offset with regard to liability benefits actually received by the UM insured, but we decline to extend the right of offset to liability benefits paid to parties other than the UM insured, including other guest passengers. This Court accordingly affirms the trial court's ruling.",introduction
+218,874300,1,2,1. Is the Lopezes' attorney the real party in interest? 2. Did the district court err in granting summary judgment to the Lopezes? 3. Is either party entitled to an award of attorney fees on appeal?,issues
+219,4274410,1,1,"After a juvenile on probation pursuant to a previous adjudication allegedly committed a new offense, the State moved to revoke probation. But when the juvenile entered a denial to the new charge, the State withdrew its motion. Nonetheless, the separate juvenile court of Douglas County extended the term of probation and imposed additional community service. Because the court did not follow applicable statutory procedures and thereby exceeded its statutory authority, we vacate the order, and remand the cause to the juvenile court for further proceedings consistent with this opinion.",introduction
+220,2637527,3,4,"Erica argues that the superior court lacked jurisdiction over Amy. Erica's argument is based on the following circumstances. On January 29, 1999, the superior court ordered Amy committed to the division's custody for two years. Because of multiple continuances requested by both parties, the termination trial did not begin until the day custody expired—January 29, 2001. At the time, none of the parties realized that the division's custody over Amy had expired. But the division soon recognized the problem. On February 21, 2001, it filed an emergency petition to adjudicate Amy a child in need of aid, and on February 26, the superior court entered an order renewing the state's custody of Amy based on a renewed finding that Amy was a child in need of aid. Meanwhile, on February 22, Erica had signed a power of attorney purporting to give her mother authority over Amy's care custody and upbringing. Erica essentially reasons that because she gave legal custody of Amy to her mother during a lapse in the state's custody, the court lacked jurisdiction to reassume custody. But Erica's power of attorney was not an assignment of legal custody; it simply gave Erica's mother authority to act in her stead in matters concerning Amy's care, custody, and upbringing. Erica cites no authority for the proposition that the document had any effect on the court's jurisdiction. Under AS 47.10.080(c), the superior court has authority to extend a two-year child-in-need-of-aid commitment for an additional year upon a showing that the extension would be in the child's best interests. [15] Nothing in the statutory grant of authority precludes the extension from being implemented after the initial two-year commitment has technically expired. Erica's jurisdictional argument thus lacks merit.",jurisdiction
+221,1966693,1,1,"On April 9, 1993, Eyl was assigned to work at River Park in Wisner, Nebraska, where employees were setting posts and laying pea rock around playground equipment. On that morning, Donald H. Bode, an employee of the City of Wisner, applied Pramitol to prevent weeds in the playground area, which would then be covered by the pea rock. Pramitol requires water to activate it, and Bode testified that he usually wore rubber boots if it was wet. Neither Ciba-Geigy nor Northeast Cooperative provided flags or signs that could be displayed to warn others that Pramitol had been applied in the area. A representative for Ciba-Geigy admitted that in addition to product labels, the company does send out additional pamphlets, brochures, leaflets, and news articles to suppliers or communities, but that the information must be consistent with the label. Richard Brahmer, the general manager of Northeast Cooperative, testified that on some occasions, he would give customers information about a product that was not on the label. Brahmer stated that he was probably aware that people from the community would come in contact with Pramitol, but did not warn customers purchasing it to protect the application area. He testified that Northeast Cooperative sometimes prepared warning flags for customers of other products, because in 1996, a law was passed that required applicators to post warnings. The label for Pramitol states, DANGER: Corrosive—causes eye and skin damage. Do not get in eyes, on skin or clothing. Wash clothing after handling. Wear goggles or face shield and rubber gloves when handling. Harmful if swallowed, inhaled or absorbed through the skin.... If on skin: Remove contaminated clothing and immediately wash affected areas thoroughly with soap and water. The material safety data sheet for Pramitol in effect on April 9, 1993, states that if skin contact occurs, the person should wash with soap and water and should remove contaminated clothing and wash before reuse. The data sheet advises users to wear rubber gloves, waterproof boots, a long-sleeved shirt, long pants, and a hat. The data sheet also states that Pramitol can cause chemical burns to the skin and lists it as being extremely irritating to the skin. A later data sheet, issued in 1994, lists the same precautions, but omits the reference to chemical burns and states that Pramitol is non-irritating  to the skin. Eyl was present when the Pramitol was applied. Eyl did not read the label or the data sheet for the product because he did not use the product. The data sheet was available at a city warehouse where the employees worked, and boots were available for them to wear if needed. Eyl spent the day hauling pea rock to the playground area in a wheelbarrow, which required that he walk through grass and over the playground area. He testified that there was heavy fog and that the grass was wet. Puddles of water were also in the playground area. Eyl was wearing steel-toe leather boots with oil-resistant soles. He testified that the boots became wet and stayed wet all morning. When he got home that evening, his boots, socks, and pant legs were wet. He wore the boots again for about 5 hours the next day. After April 10, 1993, the boots turned whitish in color and became stiff and brittle. On April 11, 1993, Eyl's feet were red and sore. Eyl first saw his physician on April 13, and at that time, Eyl's feet and ankles were swollen, red, and hot. Eyl's feet later developed ulcers and remained painful. His condition did not improve, and Eyl was later seen by a dermatologist and was referred to the Mayo Clinic in Rochester, Minnesota. Because of the condition of his feet, Eyl is permanently disabled. After Eyl presented his case, the appellants moved for a directed verdict, arguing that labeling-based state common-law failure-to-warn claims were preempted by FIFRA. The court stated that it did not view the case as a labeling-based claim that was preempted by FIFRA and denied the motion. The appellants then adduced evidence and renewed their motion for a directed verdict. The motion was overruled. During the jury instruction conference, the court refused an instruction on design defects and stated that the case was a failure-to-warn case. The court submitted Eyl's claims to the jury on negligent failure to warn against both appellants. The court submitted to the jury Eyl's strict liability claim for a warning defect against only Ciba-Geigy. The only claims submitted to the jury were claims based on a theory of failure to warn. The jury found for Eyl on all claims and awarded damages. The appellants moved for judgment notwithstanding the verdict. Among the issues raised, the appellants argued that Eyl's claims were preempted by FIFRA. The motions were overruled, and judgment was entered against the appellants.",facts
+222,2509419,1,3,"Based on the foregoing, we find res judicata precluded James from adjudicating his lawsuit for waste in the circuit court. [9] Therefore, the decision of the Court of Appeals is AFFIRMED. KITTREDGE and HEARN, JJ., concur. TOAL, C.J., dissenting in a separate opinion in which PLEICONES, J., concurs.",conclusion
+223,1835478,1,2,"We begin our analysis by emphasizing the scope of this Court's review of PSC orders. Although the Florida Constitution vests this Court with mandatory jurisdiction to hear appeals from PSC orders, see art. V, § 3(b)(2), Fla. Const., our review function is circumscribed by certain well-established principles: Commission orders come to this Court clothed with the statutory presumption that they have been made within the Commission's jurisdiction and powers, and that they are reasonable and just and such as ought to have been made. Moreover, an agency's interpretation of a statute it is charged with enforcing is entitled to great deference. The party challenging an order of the Commission bears the burden of overcoming those presumptions by showing a departure from the essential requirements of law. We will approve the Commission's findings and conclusions if they are based on competent substantial evidence,[ [2] ] and if they are not clearly erroneous. AmeriSteel Corp. v. Clark, 691 So.2d 473, 477 (Fla.1997) (citations omitted) (quoting PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla.1988)). Considering the PSC's specialized knowledge and expertise in this area, this deferential standard of review is appropriate. See Gulf Oil Co. v. Bevis, 322 So.2d 30, 32 (Fla.1975), superseded by statute on other grounds as stated in General Dev. Utils., Inc. v. Hawkins, 357 So.2d 408, 409 n. 4 (Fla.1978); see also Public Serv. Comm'n v. Fuller, 551 So.2d 1210, 1212 (Fla.1989).",standard of review
+224,2629194,1,1,"In this water case, the State Water Engineer ordered the City of Golden to stop diverting water from Clear Creek at the Church Ditch during a river call in the drought year of 2002. Golden sought to prevent enforcement of the order by immediately moving for a temporary restraining order (TRO), a preliminary injunction, and a permanent injunction against the state. The state, in turn, orally requested an injunction to enforce its cease-and-desist order. After a full-day hearing, the water judge held that Golden did not have a valid right to the water it had been diverting at the Church Ditch and ordered Golden to comply with the state's order to enforce the conditions of a 1966 change of water right decree. Consequently, the judge denied the TRO and dismissed Golden's request for preliminary and permanent injunctions. Golden makes two arguments as to how the water court erred. First, Golden claims that it has valid rights to the water, and should not have had to stop diverting. Second, Golden asserts that regardless of the merits, the court prematurely dismissed the case after simply holding a hearing on the TRO, and instead should have conducted another hearing involving the permanent injunction. We reject both of Golden's arguments. The 1966 change decree that established Golden's rights is unambiguous and, under it, Golden does not have rights to the water it claims. Consequently, the water court was correct in dismissing Golden's complaint.",introduction
+225,2038605,1,3,"Accordingly, having granted transfer and having vacated the Court of Appeals opinion, except that portion regarding Huber, Hunt & Nichols which we summarily affirm, we reverse the grant of summary judgment as to Grunau. App. R. 11(B)(3). We remand for further proceedings consistent with this opinion. SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.",conclusion
+226,901901,1,2,"[¶ 6.] Whether McBride's counsel was ineffective for failing to adequately consult with him concerning his right to direct appeal. [¶ 7.] In Flores-Ortega, the United States Supreme Court established the paradigm for analyzing a claim of ineffective assistance of counsel based on a failure to file a notice of appeal. 528 U.S. at 477-487, 120 S.Ct. 1029. As a starting point, the Court recognized that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. Id. at 477, 120 S.Ct. 1029. At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently. Id. As in Flores-Ortega, the question presented by this case falls between these two situations. In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term consult to convey a specific meaning-advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal. If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance. That question lies at the heart of this case: Under what circumstances does counsel have an obligation to consult with the defendant about an appeal? Id. at 478, 120 S.Ct. 1029. Further, We cannot say, as a constitutional matter, that in every case counsel's failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient. Such a holding would be inconsistent with both our decision in Strickland and common sense. For example, suppose that a defendant consults with counsel; counsel advises the defendant that a guilty plea probably will lead to a 2 year sentence; the defendant expresses satisfaction and pleads guilty; the court sentences the defendant to 2 years' imprisonment as expected and informs the defendant of his appeal rights; the defendant does not express any interest in appealing, and counsel concludes that there are no nonfrivolous grounds for appeal. Under these circumstances, it would be difficult to say that counsel is professionally unreasonable, as a constitutional matter, in not consulting with such a defendant regarding an appeal. Or, for example, suppose a sentencing court's instructions to a defendant about his appeal rights in a particular case are so clear and informative as to substitute for counsel's duty to consult. In some cases, counsel might then reasonably decide that he need not repeat that information. We therefore reject a bright-line rule that counsel must always consult with the defendant regarding an appeal. We instead hold that counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal. Id. at 479-80, 120 S.Ct. 1029 (citations omitted). Concerning a defendant's need to establish prejudice if a duty to consult existed, the Supreme Court stated: In some cases, however, the defendant alleges not that counsel made specific errors in the course of representation, but rather that during the judicial proceeding he was-either actually or constructively-denied the assistance of counsel altogether. The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage. United States v. Cronic, 466 U.S. 648, 659[, 104 S.Ct. 2039, 80 L.Ed.2d 657] (1984). The same is true on appeal. See Penson v. Ohio, 488 U.S. 75, 88[, 109 S.Ct. 346, 102 L.Ed.2d 300] (1988). Under such circumstances, [n]o specific showing of prejudice [is] required, because the adversary process itself [is] presumptively unreliable. Cronic, supra, at 659[, 104 S.Ct. 2039]; see also Smith v. Robbins, 528 U.S. 259, 286[, 120 S.Ct. 746, 145 L.Ed.2d 756] (2000) (denial of counsel altogether ... warrants a presumption of prejudice); Penson, supra, at 88-89[, 109 S.Ct. 346] (complete denial of counsel on appeal requires a presumption of prejudice). Today's case is unusual in that counsel's alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself. According to respondent, counsel's deficient performance deprived him of a notice of appeal and, hence, an appeal altogether. Assuming those allegations are true, counsel's deficient performance has deprived respondent of more than a fair judicial proceeding; that deficiency deprived respondent of the appellate proceeding altogether. In Cronic, Penson, and Robbins, we held that the complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because the adversary process itself has been rendered presumptively unreliable. Cronic, supra, at 659[, 104 S.Ct. 2039]. The even more serious denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, similarly demands a presumption of prejudice. Put simply, we cannot accord any `presumption of reliability,' Robbins, at 286[, 120 S.Ct. 746], to judicial proceedings that never took place. Id. at 483, 120 S.Ct. 1029. As a result, the Supreme Court held that to show prejudice in these circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed. Id. at 484, 120 S.Ct. 1029. Significantly, the Supreme Court rejected any requirement that the would-be appellant `specify the points he would raise were his right to appeal reinstated.' Id. at 485, 120 S.Ct. 1029 (quoting Rodriquez v. United States, 395 U.S. 327, 330, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969)). The Supreme Court stated that by not requiring a defendant to demonstrate meritorious issues to have his appeal reinstated allowed him to be treated like any other appellant. Id. See also Whiteman v. State, 643 N.W.2d 704, 709 (N.D.2002) ([C]ourts routinely have held Flores-Ortega thus establishes that an indigent, perhaps pro se defendant, even if he pled guilty, cannot be required to demonstrate how his appeal would have been successful in order to establish that he was prejudiced by his attorney's failure to pursue a requested appeal.). [¶ 8.] Because the habeas court found that counsel did not adequately consult with McBride concerning an appeal, the question becomes whether counsel was constitutionally deficient in failing to do so. Consult means advising the defendant about the advantages and disadvantages of taking an appeal and making a reasonable effort to discover the defendant's wishes. Flores-Ortega, 528 U.S. at 478, 120 S.Ct. 1029. Counsel should also inform a defendant that he is obligated to file an appeal if that is what the defendant requests. Thompson v. United States, 504 F.3d 1203, 1207 (11th Cir.2007). [2] [A]dequate consultation requires informing a client about his right to appeal, advising the client about the advantages and disadvantages of taking an appeal, and making a reasonable effort to determine whether the client wishes to pursue an appeal, regardless of the merits of such an appeal. Id. at 1206 (citing Frazer v. South Carolina, 430 F.3d 696, 711 (4th Cir.2005)). [¶ 9.] As articulated above, a duty to consult arises when (1) a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Flores-Ortega, 528 U.S. at 480, 120 S.Ct. 1029. This inquiry is informed by several `highly relevant' factors, including: whether the conviction follows a guilty plea, whether the defendant received the sentence he bargained for, and `whether the plea expressly ... waived some or all appeal rights.' Otero v. United States, 499 F.3d 1267, 1270 (11th Cir.2007) (quoting Flores-Ortega, 528 U.S. at 480, 120 S.Ct. 1029). Other factors include the duration of the consultation, Thompson, 504 F.3d at 1207, the content of the exchange, see id., and whether the court has adequately informed a defendant of his right to appeal, Flores-Ortega, 528 U.S. at 479-80, 120 S.Ct. 1029. [¶ 10.] Applying the test as articulated in Flores-Ortega, the habeas court focused almost exclusively on the first prong: whether a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal). The habeas court understandably denied relief under that prong because of its objective focus on the rational defendant. McBride entered into a plea agreement by which he reduced his maximum exposure to fifteen years, the sentence that he received. This sentence should have been objectively expected as this was a vicious crime involving the beating and stabbing of a victim evolving from a pattern of domestic violence. McBride also has not identified non-frivolous grounds for appeal. Nevertheless, that is only part of the inquiry in determining if a duty to consult existed. [¶ 11.] The second prong of the Flores-Ortega test requires a court to alternatively determine if this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Although the habeas court found McBride did not satisfy this second prong based on its finding that he admitted he never told counsel he wished to appeal, the question is whether McBride reasonably demonstrated an interest in appealing thus triggering a duty to consult. McBride's failure to specifically request an appeal does not end the inquiry or foreclose relief because McBride was informed by counsel that he had no issues to appeal. Further, counsel did not inform McBride he could appeal the sentence and never asked him if he wished to appeal. As the habeas court recognized, this was not an adequate consultation allowing him to make an informed decision. Therefore, the habeas court erred in focusing on McBride's failure to specifically assert his right to appeal, a right his attorney advised was essentially unavailable and a right McBride testified he did not realize he possessed. Under these circumstances, resolving the second prong on a finding that McBride failed to request an appeal would be entirely circular and inconsistent with Flores-Ortega. [¶ 12.] Based on the record, McBride reasonably demonstrated to counsel that he was interested in contesting (appealing) his sentence, and therefore, counsel was deficient in failing to consult with him concerning his right to appeal. It is clear that McBride expressed dissatisfaction with his sentence almost immediately. Counsel and McBride were emotional during their brief exchange following sentencing because the sentence was more severe than expected. Rather than discussing the appeal option, counsel's discussion was limited to modifying the sentence. McBride thereafter persistently maintained contact with his attorney concerning the motion to modify and what could be done to reduce his sentence. Although it was not statutorily required, it is also relevant that McBride was not informed by the sentencing court of his right to appeal when considering counsel's duty to adequately inform him of that right and ascertain his desire concerning an appeal. Counsel did not further communicate with McBride concerning his appellate rights after the judgment had been reduced to writing; [3] the written judgment also did not contain an advisory as to the right to appeal. Under these circumstances, and based on the information counsel knew, or should have known, a duty arose to at least consult with McBride concerning his right to appeal. [¶ 13.] These facts also support the reasonable probability that McBride would have exercised his right to appeal had counsel adequately consulted with him concerning that right. See Thompson, 504 F.3d at 1207-08 (holding defendant was not adequately consulted about his appeal rights when he expressed dissatisfaction with his sentence and counsel only advised him he did not believe an appeal would be successful in a brief five minute exchange); Frazer, 430 F.3d at 712 (affirming habeas relief based on defendant's unwavering and ongoing interest in challenging his sentence following his guilty plea based on his discontent with the sentence imposed). McBride has therefore sufficiently demonstrated prejudice on this record. [¶ 14.] [W]hen counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal. Flores-Ortega, 528 U.S. at 484, 120 S.Ct. 1029. Accordingly, we reverse and remand for further proceedings consistent with this opinion. [¶ 15.] GILBERTSON, Chief Justice, ZINTER and MEIERHENRY, Justices, concur. [¶ 16.] KONENKAMP, Justice, concurs specially.",issues
+227,2764248,1,1,"Defendant was convicted by the District Court for the Third Circuit (district court) of committing the offense of prostitution in violation of Hawaiʻi Revised Statutes (HRS) § 712-1200(1) (1993, Supp. 2013). Defendant appealed the conviction to the Intermediate Court of Appeals (ICA), arguing FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER there was insufficient evidence to sustain the conviction. The ICA affirmed the conviction. Defendant filed an application for writ of certiorari in which he argued the ICA erred by finding sufficient evidence to prove the commission of a prostitution offense. We affirm the judgment on appeal of the ICA, and clarify the prior-to-trial advisement required by State v. Lewis, 94 Hawaiʻi 292, 297, 12 P.3d 1233, 1238 (2000).",introduction
+228,2003112,1,2,"The trial court lacked jurisdiction to hear the post-election challenge to Pederson's eligibility. Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. St. Paul Mercury Ins. v. Circuit Court, 348 Ark. 197, 73 S.W.3d 584 (2002). We have made it clear that subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court. Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003). The right to contest an election is purely statutory. McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000); Casey v. Burdine, 214 Ark. 680, 217 S.W.2d 613 (1949). Stracener and Harvey challenge Pederson's eligibility. A statutory right to challenge the eligibility of a candidate before the election is provided in Ark.Code Ann. § 7-5-207 (Repl.2000). State v. Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169 (1989). However, this statutory procedure only allows pre-election challenges to a candidate's eligibility. Helton v. Jacobs, 346 Ark. 344, 57 S.W.3d 180 (2001). The only private post-election right to challenge an election is under Ark.Code Ann. § 7-5-801 (Repl.2000), which provides for a challenge by a candidate to contest certification by the county board of election commissioners. This statute is not applicable. Neither Stracener nor Harvey were candidates. Further, eligibility was challenged rather than certification of a winner. Therefore, the trial court was without jurisdiction to hear the action. Quo Warranto The statutory remedy in this case would be to bring a petition for a writ quo warranto. Usurpation of office is discussed in Ark.Code Ann. § 16-118-105 (Supp.2003), and provides in pertinent part: (b)(1) Whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the state or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise. (2) A person who continues to exercise an office after having committed an act, or omitted to do an act, of which the commission or omission, by law, created a forfeiture of his office, shall be subject to be proceeded against for a usurpation thereof. (3)(A) It shall be the duty of the prosecuting attorney to institute the actions mentioned in this section against all persons who usurp county offices or franchises where there is no other person entitled thereto or the person entitled fails to institute the action for three (3) months after the usurpation. Ark.Code Ann. § 16-118-105 (Supp.2003). The action allowed under Ark.Code Ann. § 16-118-105 is a petition for a writ quo warranto. Magnus v. Carr, 350 Ark. 388, 86 S.W.3d 867 (2002). However, a petition for a writ quo warranto in this case must be initiated by the State. Magnus, supra ; Cummings v. Washington County Election Comm'n, 291 Ark. 354, 724 S.W.2d 486 (1987); Moody v. Lowrimore, 74 Ark. 421, 86 S.W. 400 (1905). In this case, Pederson was certified the winner of an election to Justice of the Peace, and it is alleged that he is not qualified to serve. Therefore, the action available is a petition for a writ quo warranto, which must be brought by the prosecuting attorney. Reversed and dismissed.",jurisdiction
+229,6329084,1,1,"After obtaining a workers’ compensation award granting medical rehabilitation services for his lumbar back, James R. Spratt sought modification to provide such services for his thoracic back. The compensation court refused—holding that it lacked statutory authority to do so and that even if the statute permitted modification, a principle of finality precluded that relief. Spratt appeals—relying now upon Neb. Rev. Stat. § 48-162.01(7) (Reissue 2021). Because the court erred in both respects, we reverse, and remand for further proceedings.",introduction
+230,884170,1,2,"1. Did the District Court err in granting summary judgment? 2. Did the District Court err in denying Mountain's request for equitable relief under § 28-1-104, MCA?",issues
+231,6342535,1,4,"Because we find no error on the part of the district court, we affirm. Affirmed.",conclusion
+232,901084,1,1,"[¶ 2.] On November 18, 1997, approximately $13,000 in cash was stolen from a casino operated by Jenco. Jenco asserted that a casino employee, Dianne Iverson, was involved with the robbery. Iverson was not charged in the theft, but Jenco terminated her. Jenco filed an insurance claim with United Fire under an employee dishonesty provision. United Fire denied the claim and Jenco filed suit alleging breach of contract. United Fire denied that it breached the contract, and although United Fire asserted in its Answer that there was a reasonable basis for its denial of payment, neither document expressly indicated the basis. [¶ 3.] Jenco filed its original Complaint on May 29, 1998 and an Amended Complaint on March 17, 1999. United Fire filed an Amended Answer on March 23, 1999. Judge Fitzgerald conducted a status hearing on April 26, 1999 and entered a scheduling order on May 5, 1999. The scheduling order set a deadline to amend pleadings by May 26, 1999, a deadline for discovery of July 26, 1999 and further ordered [t]hat by August 5, 1999, counsel for plaintiff and counsel for defendant shall mutually agree as to a trial date. Accompanying the scheduling order was a scheduling worksheet which indicated that Judge Fitzgerald wanted the clerk to bring the file to his attention in 90 days. On July 14, 1999, United Fire took the depositions of Iverson, a detective and the casino manager. [¶ 4.] By letter dated August 5, 1999, Jennifer Trucano, attorney for United Fire, informed Judge Fitzgerald that several discovery issues were still pending. She indicated that another status conference had been scheduled to discuss possible date revisions and the need for an extension of time to complete discovery. She also indicated that they hoped to be able to set a reasonable trial date at that time. [¶ 5.] On August 9, 1999, United Fire filed an offer of judgment of $5,000 plus accrued costs. At the status hearing on August 22, 1999, Judge Fitzgerald ordered Jenco to obtain new counsel because its attorney had a conflict of interest. Although no written order directing substitution of counsel was entered, the parties do not dispute the oral order. [¶ 6.] On October 5, 1999, United Fire wrote Jenco a letter inquiring whether it had retained substitute counsel. Jenco did not respond. No other action was taken until March 25, 2002, when Jenco requested a scheduling order from the court. On March 26, 2002, United Fire filed a motion to dismiss based on Jenco's failure to prosecute and for disregarding the court's order to obtain substitute counsel. On May 15, 2002, substitute counsel for Jenco filed a notice of appearance. Following a hearing on the motion on May 17, 2002, the trial court dismissed the case with prejudice. Jenco appeals.",facts
+233,6348579,1,1,"This case began when the State filed a petition pursuant to Neb. Rev. Stat. § 28-431 (Reissue 2016), alleging that on or about August 1, 2020, an officer with the Seward County Sheriff’s Department seized $18,000 from Bouldin. According to the petition, the cash was used or intended to be used to facilitate a violation of the Uniform Controlled Substances Act and asked the district court to order that it be forfeited to the State. Shortly thereafter, Bouldin entered his appearance and filed an answer in which he asserted that the cash should be returned to him. The matter was set for trial, but Bouldin did not appear. The only witness to testify was the officer who seized the cash from Bouldin. The officer testified that on the day at issue, he was operating a marked patrol car on Interstate 80 in Seward County, Nebraska. There, he initiated a traffic stop and, later, a search of a vehicle driven by Bouldin. The officer found and seized $18,000 in cash. The officer testified to various pieces of information that he obtained during the stop that led him to believe that Bouldin intended to purchase a large amount of marijuana with the seized money. Among other things, the officer testified that Bouldin told the officer he was traveling from his home in Virginia to Colorado; that a certified drug dog positively indicated the presence of illegal narcotics in the vehicle; that Bouldin’s phone had pictures of marijuana taken in both Virginia and Colorado; that a Colorado area code phone number had sent text messages to Bouldin’s phone containing photographs and video of what the officer identified as marijuana and “THC wax”; that Bouldin had sent text messages to the same number requesting “8 widow” and “8 goat”; - 623 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. $18,000 Cite as 311 Neb. 621 and that in the officer’s opinion, the person using the other phone number was offering to sell marijuana and “THC wax,” and that Bouldin was agreeing to make a purchase. The State also introduced evidence that Bouldin had previously been convicted in Utah of attempted possession of a controlled substance with intent to distribute. After the trial, the district court entered an order in which it stated that it had found by clear and convincing evidence that the seized cash was used or intended to be used to facilitate a violation of the Uniform Controlled Substances Act. The district court ordered the cash forfeited to the State and entered an order of distribution. Bouldin filed a timely appeal. ASSIGNMENTS OF ERROR On appeal, Bouldin assigns that the district court erred by (1) applying a clear and convincing evidence standard of proof and (2) finding that there was sufficient evidence to order forfeiture.",facts
+234,2534575,1,2,"¶ 4. This Court reviews issues of law, including those involving a motion to dismiss or a motion for directed verdict, under a de novo standard. Howard v. Estate of Harper ex rel. Harper, 947 So.2d 854, 856 (Miss.2006). See also Forbes v. Gen. Motors Corp., 935 So.2d 869, 873 (Miss.2006). ¶ 5. Loggers asserts that it preserved its right to the affirmative defense that 1 Up is barred from filing or maintaining this action pursuant to Section 79-29-1007(1) by the inclusion of general language from Mississippi Rule of Civil Procedure 12(b)(6) in its response. Loggers' response, filed May 07, 2008, asserted various affirmative defenses, and included the following language: Defendants would assert the Plaintiff's Complaint fails to state a claim for which the Plaintiff may be granted relief as against the Defendants. Defendant, Gary Troescher, also asserts the Complaint of Plaintiff fails to state any claim for relief against the Defendant, Troescher, individually, due to the fact that at all times that any contractual relationship existed solely between Defendant, Loggers, L.L.C., A Mississippi Limited Liability Company and the Plaintiff. ¶ 6. At the close of 1 Up's case-in-chief during the trial of this matter on February 10, 2009, Loggers moved for involuntary dismissal under Rule 41(b) [1] pursuant to Mississippi Code Section 79-29-1007(1), which states: A foreign limited liability company transacting business in this state may not maintain any action, suit, or proceeding in any court of this state until it has registered in this state. Miss.Code Ann. § 79-29-1007(1) (Rev.2009). ¶ 7. The special master found that 1 Up was not registered to do business in Mississippi and was unable to bring a lawsuit pursuant to Section 79-29-1007(1). But the special master also found that this assertion was an affirmative defense that should have been raised by Loggers prior to trial. The special master further found as follows: After reviewing all pleadings in this matter, the first mention of this defense was asserted at trial. This lawsuit was filed on October 10, 2007 and the Defendants have actively participated in the litigation since its inception and have thereby waived this defense. The special master quoted East Mississippi State Hospital v. Adams, 947 So.2d 887, 891 (Miss.2007) (quoting MS Credit Center, Inc. v. Horton, 926 So.2d 167, 181 (Miss. 2006)), for the following: A defendant's failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver. ¶ 8. The circuit court adopted the special master's findings and further said: However, this Court is of the opinion that a specific affirmative defense, such as this, cannot be raised in a general 12(b)(6) defense provision. Furthermore, any Rule 12(b)(6) motions or assertions must be addressed prior to trial, not at a Motion for Directed Verdict. ¶ 9. Loggers asserts that the trial court erred and that the boilerplate language from Rule 12(b)(6) included in its response was sufficient to preserve the right later to assert Section 79-29-1007(1) at trial. Rule 12 states, in relevant part: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . (6) Failure to state a claim upon which relief can be granted. . . . Miss. R. Civ. P. 12(b)(6). Further, the comment to Rule 12 provides, in relevant part: Rules 12(b)(6) and 12(c) serve the same function, practically, as the general demurrer. [Citations omitted]. They are the proper motions for testing the legal sufficiency of the complaint; to grant the motions there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim. Miss. R. Civ. P. 12 cmt. ¶ 10. Loggers relies on Howard v. Estate of Harper ex rel. Harper, 947 So.2d 854 (Miss.2006) and Transocean Enterprise, Inc. v. Ingalls Shipbuilding, Inc., 33 So.3d 459 (Miss.2010), as authority for the proposition that a general Rule 12(b)(6) assertion is sufficient to preserve a later issue. In Howard, this Court, without explanation, found that a general Rule 12(b)(6) assertion in a motion to dismiss was sufficient to preserve for appeal an issue of medical malpractice liability. Howard, 947 So.2d at 860. In Transocean, the majority of this Court did not address the waiver issue, but found that the trial court justifiably did not address the implications of the relevant statute. Transocean, 33 So.3d at 463. ¶ 11. However, in reaching our decision today, we rely on Burleson v. Lathem, 968 So.2d 930 (Miss.2007), and East Mississippi State Hospital v. Adams, 947 So.2d 887 (Miss.2007). As stated previously herein, the complaint in this matter was filed on October 10, 2007. The trial occurred more than a year later on February 10, 2009. The record in this matter indicates that Loggers actively participated in the litigation. Loggers cannot merely assert a general defense in its initial response to preserve any other defenses that might be asserted months or years later. See Burleson, 968 So.2d at 934-37, and East Mississippi State Hospital, 947 So.2d at 890-91. For these reasons, we affirm the judgment of the Circuit Court of Pearl River County. ¶ 12. AFFIRMED. WALLER, C.J., CARLSON, P.J., KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. RANDOLPH, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. DICKINSON AND LAMAR, JJ., CONCUR IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.",analysis
+235,1280538,1,2,"The issue in this case is whether the Oregon State Police officer, in stopping defendant in the course of his criminal investigation, violated defendant's constitutional rights, thereby requiring suppression of evidence derived therefrom. [1] We address the issue first under the Oregon Constitution and then under the federal constitution.",analysis
+236,2759941,1,2,"1 Estate of White v. White, No. 2012-CA-01083-COA, 2014 WL 1190245, at  (Miss. Ct. App. July 5, 2014). 3 ¶8. The issue before us is whether the doctrine of res judicata bars Anita’s suit to set aside the quit-claim deeds. If, as Anita argues, it does not, then the chancellor erred in granting Tommy’s motion for summary judgment. ¶9. We conduct a de novo review of a trial court’s grant of summary judgment.2 A civil defendant may raise res judicata in a motion for summary judgment where a plaintiff’s suit centers around issues decided in a previous lawsuit.3 But for res judicata to apply, the defendant must show that the judgment rendered in the previous action was a final judgment on the merits.4 ¶10. A final judgment on the merits is “[a] judgment based on the evidence rather than on technical or procedural grounds.” 5 While our prior cases have considered whether a judgment constituted a “final judgment on the merits” on a case-by-case-basis, a judgment generally will not be considered a “final judgment on the merits” when the first case was dismissed for a procedural defect or some other technical ground that prevented the court 2 Conrod v. Holder, 825 So. 2d 16, 18 (Miss. 2002) (citing Daniels v. GNB, Inc., 629 So. 2d 595, 599 (Miss. 1993)). 3 Little v. V&G Welding Supply, Inc., 704 So. 2d 1336, 1337-38 (Miss. 1997) (citing Estate of Anderson v. Deposit Guar. Nat’l Bank, 674 So. 2d 1254, 1256 (Miss. 1996)). 4 EMC Mortg. Corp. v. Carmichael, 17 So. 3d 1087, 1090 (Miss. 2009) (citing Anderson v. LaVere, 895 So. 2d 828, 833 (Miss. 2004)) (“[T]he prior judgment must be a final judgment that was adjudicated on the merits.”). 5 Black’s Law Dictionary 920 (9th ed. 2009). 4 from reaching the merits of the case.6 If, in the previous case, the court did render a final judgment on the merits, res judicata will apply if both cases share four common identities.7 ¶11. In granting Tommy’s motion for summary judgment, both the chancellor and Court of Appeals thoroughly analyzed the four common identities necessary for res judicata to apply, but both courts failed to analyze the threshold requirement of a final judgment. Absent a final judgment, the alignment of the four identities is irrelevant.8 ¶12. The chancellor’s order discharging the conservator did not address any of the contested issues. As our precedent shows, a judgment based on technicalities or procedural issues generally will not be considered a final judgment on the merits. In his order discharging the conservatorship, the chancellor could have rendered a judgment on the contested claims between Tommy and Anita, but he did not. ¶13. The record indicates that the conservatorship was opened in early 2009 and closed when Bill died in June 2009. Far from a final judgment concerning the merits of the contested issues, the final judgment discharging the conservator was based solely on Bill’s 6 Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 229 (Miss. 2005) (quoting Costello v. United States, 365 U.S. 265, 285, 81 S. Ct. 534, 544, 5 L. Ed. 2d 551 (1961)) (“If the first suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.”). 7 Hill v. Carroll Cnty., 17 So. 3d 1081, 1085 (Miss. 2009). The four common identities are: “(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made.” Hill, 17 So. 3d at 1085 (citing Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 232 (Miss. 2005)). 8 EMC Mortg. Corp., 17 So. 3d at 1090 (citing Anderson, 895 So. 2d at 833). 5 death. The chancellor considered no other evidence when entering his order.9 Although Tommy correctly points out that Anita requested the court set aside the deed transfers in the conservatorship proceeding, the chancellor never addressed the issue.",analysis
+237,3135515,1,2,"On the afternoon of September 27, 1997, a Will County sheriff’s deputy observed a 1991 black Firebird make an illegal left turn. He stopped the car and asked the driver for his license and proof of insurance. The driver stated that he did not have his license with him, but gave the officer a name and date of birth. The officer transmitted the information to county dispatch, which determined that the name and birthdate did not correspond to a valid license. When confronted with this information, the driver admitted his true identity and that his license was either suspended or revoked. At the hearing on defendant’s motion to quash arrest and suppress evidence, the officer testified that when he asked defendant for -2- identification, it was in keeping with his usual practice when arresting the driver of a vehicle. If a passenger in the vehicle produces a valid driver’s license, he allows the passenger to drive the vehicle away, thus avoiding the expense and inconvenience of having the vehicle towed. He further testified that when he asked to see defendant’s identification, he did not suspect him of any wrongdoing. He did not, however, ask defendant if he had a valid driver’s license or if he wanted to take responsibility for driving the car away from the scene. Defendant complied with the officer’s request, handing him a state identification card. The officer returned to his squad car and conducted a computerized search of both the driver’s and the defendant’s information. As a result of this search, he discovered an outstanding arrest warrant for defendant for failure to appear in court. The officer placed defendant under arrest. A search incident to arrest revealed a pea-sized rock of cocaine in defendant’s jacket pocket, along with a copper scrubbing pad typically used as a device for heating and smoking cocaine. A search of the car revealed another pea-sized rock of cocaine. The driver was also placed under arrest and the car was impounded. At trial, the officer again testified that he requested identification from the defendant to determine whether he was legally able to drive the car so that it would not have to be towed away. He also acknowledged that his written report stated that the car was legally parked. Nevertheless, he testified that in the absence of a passenger eligible to drive the vehicle, he would have arranged for the car to be towed and done an inventory search, which would have revealed the cocaine in the backseat. The officer further stated that he asked the defendant for identification after the driver admitted that his license was suspended or revoked, but before he verified this fact. Thus, the second time he returned to his squad car, it was for the purpose of running checks on both occupants of the car. The jury found defendant guilty of unlawful possession of a controlled substance. Defendant filed a posttrial motion in which he argued that the evidence was not sufficient to prove him guilty beyond a reasonable doubt. The posttrial motion did not, however, reassert his earlier argument that the evidence found in his pocket should have been suppressed. The trial court denied the posttrial motion and -3- sentenced defendant to 28 days in jail, with credit for the 28 days previously served, a term of 24 months’ probation, and various fines. The State argued on appeal that defendant forfeited the suppression issue because he failed to raise it in his posttrial motion. The appellate court acknowledged defendant’s forfeiture of the issue, but stated that it deemed the issue “sufficiently significant to merit our review, despite defendant’s failure to properly preserve it below.” Harris, 325 Ill. App. 3d at 265. On the merits, the appellate court found that defendant’s motion to suppress should have been granted. Harris, 325 Ill. App. 3d at 267. This court granted the State’s petition for leave to appeal. As the appellant before this court, however, the State did not argue that issues related to the suppression motion had been forfeited by defendant. This court addressed the issues on the merits, with no discussion of forfeiture. As noted above, this court’s opinion in Harris I was subsequently vacated by the United States Supreme Court. On remand for reconsideration, the appellate court concluded that the judgments of the Supreme Court in Caballes and this court in Caballes II have no bearing on the present case. No. 3–00–0190 (Harris II) (unpublished order under Supreme Court Rule 23).",facts
+238,2511821,1,9,"[¶ 36] Finally, Mrs. Harper argues that because the parties' contract was ambiguous, she should be allowed to recover under the reasonable expectations doctrine. In order to state a claim under the reasonable expectations doctrine, the plaintiff must show the subject contract is ambiguous as to the provision in dispute. Ahrenholtz v. Time Ins. Co., 968 P.2d 946, 950 (Wyo.1998). The doctrine will not be applied where the insurance contract is plain and unambiguous. W.N. McMurry Constr. Co. v. Community First Ins., Inc., 2007 WY 96, ¶ 21, 160 P.3d 71, 78 (Wyo.2007). [¶ 37] The doctrine of reasonable expectations is explained as follows in St. Paul Fire and Marine Ins. Co. v. Albany County Sch. Dist. No. 1, 763 P.2d 1255, 1262 (Wyo. 1988): The doctrine of reasonable expectations is essentially a rule of construction that acknowledges the usual disparity of bargaining power between an insurer and the fact that insurance contracts are generally contracts of adhesion. See Corgatelli v. Globe Life & Accident Insurance Company, 96 Idaho 616, 533 P.2d 737 (1975), wherein the Idaho Supreme Court described the doctrine and applied it in a split decision, and Casey v. Highlands Insurance Company, 100 Idaho 505, 600 P.2d 1387 (1979), in which that same court disavowed and refused to adopt the doctrine. Under the doctrine, the court will uphold the insured's reasonable expectations as to the scope of coverage, provided that the expectations are objectively reasonable. 2 G. Couch, Cyclopedia of Insurance Law 2d § 15:16 at 172 (Rev. ed.1984). Professor Keeton describes the operation of the doctrine in this fashion: The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations. [¶ 38] In regard to this issue, the district court was correct when it stated as follows: Mr. Harper was advised in the application that the information would be relied upon in issuing the insurance. The policy contained a contestability clause allowing challenge within the first two years of issuance. By his signature, Mr. Harper verified the answers contained in the application were true and correct. This [reasonable expectations] claim presumes that Mr. Harper can assume [Fidelity] will not rely upon his answers, which is contrary to the unambiguous language in the application. As did the district court, this Court fails to see how any claim would exist under the doctrine of reasonable expectations.",issues
+239,874270,1,3,"In deciding this appeal, we consider only Idaho law, as neither party has argued that Wyoming law should apply in determining the character of the Etna property. [2]
+The trial court in a divorce proceeding is charged with identifying and assigning the parties' interest in the community property. I.C. § 32-712 (In case of divorce by the decree of a court of competent jurisdiction, the community property and the homestead must be assigned....). Idaho Code § 32-713 reiterates this obligation: [t]he court, in rendering a decree of divorce, must make such order for the disposition of the community property.... As it is undisputed that the Etna property was Ann's separate property at the time of the parties' marriage, the inquiry is whether the character of that property changed during the marriage. The determination whether property has been transmuted, from separate to community property or vice versa, is, as we have long stated, a question of intent. Hoskinson v. Hoskinson, 139 Idaho 448, 459, 80 P.3d 1049, 1060 (2003); Suchan v. Suchan, 106 Idaho 654, 664, 682 P.2d 607, 617 (1984); In re Bogert's Estate, 96 Idaho 522, 526, 531 P.2d 1167, 1171 (1975); see also Ustick v. Ustick, 104 Idaho 215, 222, 657 P.2d 1083, 1090 (Ct.App.1983); Griffin v. Griffin, 102 Idaho 858, 861, 642 P.2d 949, 952 (Ct.App. 1982). The party asserting transmutation must prove the claim by clear and convincing evidence. [W]here it is asserted ... that a spouse intended to transmute property or to make a gift, the burden is on the party urging the assertion to prove the intent in question by clear and convincing evidence. Concomitantly, because the question of whether a clear and convincing burden of proof has been met is a question for the trier of facts to decide in the first instance, the determination of the trial judge-that a claim was not shown by clear and convincing evidence-is entitled to great weight on appeal. Hoskinson, 139 Idaho at 459, 80 P.3d at 1060 (quoting Ustick, 104 Idaho at 222, 657 P.2d at 1090). In this case, the magistrate judge considered this Court's decisions in Hall v. Hall, 116 Idaho 483, 777 P.2d 255 (1989) and Bliss v. Bliss, 127 Idaho 170, 898 P.2d 1081 (1995), and held that the [quitclaim] deed shows no ambiguity, and the court finds that it transmuted the Etna real estate from separate property to community property. Although the trial court's interpretation of Hall and Bliss is understandable, we conclude that the language of a deed executed in the course of refinancing does not conclusively determine the character of property for purposes of a divorce action. Rather, the intention of the party or parties executing the deed is dispositive. Thus, neither I.C. § 55-606 nor the statute of frauds governs because the pertinent question is not the effectiveness of the deed. Although the trial judge, as the finder of fact, may consider a deed as evidence in determining intent, it is not the only evidence available to a judge considering the question of transmutation. This Court has previously allowed courts to look to a variety of factors in determining the character of property. In Hoskinson, while recognizing that marriage settlement contracts require formalities, the Court felt free to look to additional testimony to ascertain the intent of the parties. 139 Idaho at 459-60, 80 P.3d at 1060-61. Similarly, in Winn v. Winn, 105 Idaho 811, 673 P.2d 411 (1983), involving a property purchase concluded some months after the marriage using separate property of the husband, the Court considered a variety of factors to be considered in the absence of the parties' actual, articulated intent: (1) whether the community was liable for payment on the loan; (2) the source of the payments toward the loan; (3) the basis of credit upon which the lender relied in making the loan; (4) the nature of the down payment; (5) the names on the deed; and (6) who signed the documents of indebtedness. Id. at 814-15, 673 P.2d at 414-15. This Court explained: [t]he presence or absence of any or all of the above listed factors is relevant in determining the character of the credit by which a loan is obtained. None is conclusive. We deliberately refrain from selecting one item as dispositive. Such an approach is too rigid in light of our ultimate purpose of determining the likely intent of the spouses and in consideration of the highly individualistic and often complex fact situations presented. Id. at 815, 673 P.2d at 415. The fact that Winn involved the purchase of new property rather than the question of whether existing property was transmuted does not change the analysis here. Winn was clear in its holding that evidence beyond the deed itself could be introduced to determine the character of property even where that determination might differ from the language of the deed. We recognize that some of our cases have employed language that would suggest the opposite conclusion. In Hall v. Hall , this Court stated that [w]here the language of a deed is plain and unambiguous, the intention of the parties must be determined from the deed itself, and parol evidence is not admissible to show intent. 116 Idaho at 484, 777 P.2d at 256; see also Dunagan v. Dunagan, 147 Idaho 599, 603, 213 P.3d 384, 388 (2009); Bliss, 127 Idaho at 174, 898 P.2d at 1085. However, these statements have obscured decisions that are otherwise consistent with the rule expressed today. In Dunagan, there was no challenge on appeal to this Court from the determination that the execution of a quitclaim deed in favor of husband and wife during refinancing transmuted the wife's separate property. On appeal, the primary question presented to this Court was whether a substantially equal distribution of the community property was appropriate. Thus, the Court's statement that courts do not have discretion under I.C. § 32-712(1) to consider compelling reasons to alter the terms of a deed that is plain on its face was dictum. Dunagan, 147 Idaho at 603, 213 P.3d at 388. In Bliss, the husband executed a quitclaim deed to his wife in order to prevent the Internal Revenue Service (IRS) from attaching the property to satisfy a previous tax liability. 127 Idaho at 171-72, 898 P.2d at 1082-83. This Court upheld the determination that the property was the wife's separate property. The reasoning behind this decision is clear: in order to avoid seizure of the property by the IRS, husband intended to convey the property to wife. Indeed, a contrary result would have placed the Court in a position of not only condoning, but facilitating tax evasion. Because a court of equity will not knowingly aid in the furtherance of an illegal transaction, the husband's testimony was properly excluded. Stearns v. Williams, 72 Idaho 276, 290, 240 P.2d 833, 842 (1952). Finally, Hall is distinguishable on two separate grounds. First, Hall concerned a deed from a third party (the husband's grandmother), and therefore takes it outside the question of the character of property established within the marriage. Hall, 116 Idaho at 483-84, 777 P.2d at 255-56. Second, Hall is notable for its fractured decision. Of the five justices, Justices Huntley and Johnson voted to exclude parol evidence, while Justice Bistline concurred, finding that clear and convincing evidence had not been presented. Chief Justice Bakes dissented and would have remanded for additional factual findings, and Justice Shepard did not participate due to his untimely death. Id. at 484, 495, 777 P.2d at 256, 267. This Court has previously stated that, where the third vote necessary to pronounce a decision is by a justice who concurs in the result only, the rationale contained in the opinion is not a decision of the Court and is not controlling in other cases. Osick v. Pub. Employee Ret. Sys. of Idaho, 122 Idaho 457, 460, 835 P.2d 1268, 1271 (1992). [3] Although this Court possesses authority to revise the disposition of community property on appeal, I.C. § 32-714, the determination whether property has been transmuted is a question of fact turning on intent. In making this factual determination, trial courts are free to consider all relevant evidence regarding that intent. We therefore affirm the district court's decision to remand the case to the magistrate judge for consideration of additional evidence. In light of this decision, we do not reach the question of whether Ann would be entitled to an unequal division of the community property under I.C. § 32-712(1)(a). In the event that the magistrate judge determines that the Etna property is community property, he should further decide whether that determination constitutes compelling circumstances warranting an unequal division of community property. Dunagan, 147 Idaho at 603, 213 P.3d at 388. Greg has asked this Court to decide whether he met his burden of proof to show a transmutation. We decline to do so. As noted, this is a factual question of intent. It is not the function of this Court to make findings of fact. Walter v. Potlatch Forests, Inc., 94 Idaho 738, 740, 497 P.2d 1039, 1041 (1972).
+Ann has requested attorney fees under I.C. § 12-121. Under this provision, attorney fees may be awarded only if the appeal was brought or defended frivolously, unreasonably, or without foundation. Cole v. Esquibel, 145 Idaho 652, 656, 182 P.3d 709, 713 (2008). In light of this Court's earlier decisions which suggested that deeds are to be given conclusive effect, we conclude that Greg did not unreasonably pursue this appeal. We therefore decline to award attorney fees.",analysis
+240,1058246,1,3,"We hold that the trial court properly supplemented the appellate record with the Mathews transcript and that no extraordinary circumstances exist justifying the Court of Criminals Appeals' refusal to consider the Mathews transcript. Accordingly, we reverse the judgment of the Court of Criminal Appeals and hereby order supplementation of the appellate record with the certified transcript of the Mathews trial for consideration by this Court in Housler's related Rule 11 appeal. Costs of this appeal are taxed to the appellee, the State of Tennessee.",conclusion
+241,2623391,1,1,[¶ 2] Father raises only one issue on appeal: Did the trial court abuse its discretion when it failed to consider the state of the law at the time the decree of divorce was entered in defining gross income to be income before taxes as it applied to the computation of the child support arrearage owed by defendant.,issues
+242,1224157,1,2,"Our standard for reviewing a trial court's decision to grant a Rule 50 motion was set forth in syllabus point three of Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996): The appellate standard of review for the granting of a motion for a directed verdict pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of a directed verdict when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a directed verdict will be reversed. We proceed to apply this standard to the case before us.",standard of review
+243,2272501,1,2,"We review both dismissal and summary judgment de novo. [2] Charlton bases his claim that the Superior Court had personal jurisdiction over Mond solely on records of telephone calls between Mond and Mesquita, neither of whom is a District of Columbia resident, as well as between Mond and other parties who are District residents. Mond made the calls prior to and on the day he terminated Charlton's contract. Charlton urges us to interpret these telephone records in the light most favorable to him [3] and to conclude that they constitute sufficient grounds for personal jurisdiction over Mond. Alternatively, he argues that Mond waived his jurisdictional defense by filing a counterclaim. We hold that jurisdiction was improper in the first instance and that the trial judge erred in denying Mond's first motion to dismiss. We also hold that when a defendant first files to dismiss and the court denies the motion, the defendant does not waive an objection to the court's jurisdiction by later filing a counterclaim.
+Charlton relies on the RESTATEMENT (SECOND) OF TORTS § 577(1) (1977) [4] to support the proposition that the situs of the defamation, venue and jurisdiction, is (sic) where the defamatory information was received. Though the situs of the alleged injury was certainly in the District because the allegedly defamatory material reached some who were indisputably District residents, we have found no case that would allow personal jurisdiction over Mond based solely on that fact. Nor do the cases Charlton relies upon support this position. [5] Had Charlton claimed personal jurisdiction over Mond as one who caus[ed] tortious injury in the District of Columbia by an act or omission in the District of Columbia, [6] his argument would have had more merit. But he cannot so argue, since Mond's phone calls originated in Maryland. Instead, Charlton must prove jurisdiction [7] under D.C.Code § 13-423(a)(4), which requires additional contacts between a defendant and the forum when the predicate act to the alleged injury originates outside the District. [8] Therefore, the proposition that the situs of a tort is located in the jurisdiction where the damage occurred, while true, does not help Charlton's jurisdictional argument. Because there is no basis for personal jurisdiction based on the phone calls themselves, [9] Charlton needed to prove additional contacts between Mond and the District of Columbia. But even after discovery had been completed, Charlton failed to present evidence of any such contacts. The cases that Charlton relies on fail to support his argument. [10] The closest case on point is Blumenthal v. Drudge, where the court held that jurisdiction existed over Drudge, a California resident who was accused of defaming a White House staffer by publishing a story about him on his web site. [11] In holding so, however, the court did not rest its decision solely on the fact that the defamatory story was available to or directed at District of Columbia residents. Instead, it concentrated on the additional multiple and persistent contacts between the defendant and the forum. [12] Charlton misinterprets Drudge when he argues that any defendant who knows the effect of his actions will be suffered in a particular forum ... should also expect to be brought into court there. [13] Here, both Charlton and Mond were Maryland residents. Charlton's business was registered in Maryland. The contract was negotiated and executed in Maryland. Charlton's work on Mond's house took place entirely within Maryland pursuant to licenses and permits issued by Maryland authorities. Other than the allegedly defamatory phone calls themselves, which originated in Maryland, Charlton has presented no evidence of persistent conduct by Mond in the District. Thus, based on the facts before us, the proper forum to resolve this dispute is a Maryland court.
+Charlton also argues that Mond's counterclaim constituted a waiver of his jurisdictional objection. He relies on Overby v. Barnett, where the trial court sua sponte dismissed a contract claim pursuant to an arbitration provision after the defendants had filed a counterclaim. [14] In Overby, we held that the parties waived their right to arbitrate by filing the counterclaim, and that the trial court had erred by dismissing for lack of jurisdiction. But Overby is not on point because it addressed the subject matter jurisdiction of the court. [15] Here the issue is personal jurisdiction over Mond. Though Charlton fails to convince us that the counterclaim signified Mond's consent to the power of the court, the issue warrants further analysis. Though Charlton fails to cite them, our precedents hold that filing a counterclaim operates as a waiver of an objection to personal jurisdiction. [16] The waiver does not depend on whether the counterclaim was permissive. [17] Thus, Mond's argument that he had no choice but to file a counterclaim... to avoid res judicata and statute of limitations issues in Maryland lacks merit. Nevertheless, we are convinced that there was no waiver here. First, we note that in every case that we could find which has addressed this issue, defendants raised a jurisdictional defense after counterclaiming, unlike Mond, who objected to the court's lack of jurisdiction before filing a counterclaim. [18] In addition, as we have already explained, the trial court erred when it denied Mond's original motion to dismiss. [19] Moreover, Mond could have properly moved to dismiss for lack of personal jurisdiction concurrently with filing a counterclaim without affecting a waiver. [20] Finally, we have suggested that a denied motion to dismiss preserves the jurisdictional issue on appeal, even when the defendant counterclaims in the interim. [21] Therefore, in a case such as this, where the defendant first claims a lack of jurisdiction and later files a counterclaim, he has effectively registered his dissent to the court's jurisdiction. [22] We hold that Mond did not consent to the court's power over his person by counterclaiming after he had moved to dismiss for lack of personal jurisdiction. [23]",jurisdiction
+244,2621237,1,2,"On March 10, 1994, appellant Lawrence Colwell and his girlfriend, Merillee Paul, robbed and murdered a seventy-six-year-old man at the Tropicana Hotel in Las Vegas. Paul went with the victim to his room on the pretext of having sex with him. She then let Colwell into the room. He handcuffed and strangled the victim with a belt. Colwell and Paul made their way to Oregon, where Paul turned herself in to authorities. She eventually agreed to plead guilty to first-degree murder and testify against Colwell; in exchange, the State recommended she receive a sentence of life with the possibility of parole. After Colwell was arrested and arraigned, the State informed the district court it would not be seeking the death penalty. However, Colwell offered to plead guilty to all charges if the State changed its position and sought the death penalty. The State agreed and filed a notice of intent to seek death. Colwell also sought to represent himself. After canvassing Colwell on the matter, the court allowed him to represent himself but appointed standby counsel. Colwell pleaded guilty to murder in the first degree, burglary, and robbery of a victim 65 years of age or older. He requested that the penalty hearing be conducted as soon as possible. During a two-day penalty hearing before a three-judge panel, Colwell did not conduct meaningful cross-examination of the State's witnesses and even attempted to elicit damaging evidence not presented by the prosecution. He made no objections to the State's evidence and refused to introduce any mitigating evidence. During closing argument, the State argued the existence of seven aggravating factors and the nonexistence of any mitigating evidence. Colwell asked that he be put to death. Before returning a sentence, the panel gave Colwell another chance to introduce mitigating evidence; he declined. The panel found four aggravating circumstances, found no mitigating circumstances, and sentenced Colwell to death. This court affirmed his conviction and sentence. [2]",facts
+245,4511305,1,4,"Because the district court resolved the State’s motion to dismiss on sovereign immunity grounds, we begin by setting out the general principles of sovereign immunity under the STCA. Neb. Const. art. V, § 22, provides: “The state may sue and be sued, and the Legislature shall provide by law in what manner and in what courts suits shall be brought.” Through the STCA, the Legislature has waived the State’s sovereign immunity with respect to certain, but not all, types of tort actions.10 Section 81-8,215 of the STCA is the State’s general waiver of tort immunity under the STCA, and we have explained that when that section is read in pari materia with § 81-8,209, it operates as a limited waiver of the State’s tort immunity, subject to specified exceptions that are set out in § 81-8,219.11 1. Recreational Activity Exception This appeal concerns the statutory exception to the waiver of sovereign immunity which we refer to as the “recreational activity exception.” At the time Brown was allegedly struck by the lawnmower, this exception was codified at § 81-8,219(13). Subsequent amendments to the STCA have not affected the language of the exception, and we therefore cite to its current version, codified at § 81-8,219(14). Pursuant to this exception, the STCA does not apply to [a]ny claim relating to recreational activities on property leased, owned, or controlled by the state for which no fee is charged (i) resulting from the inherent risk of the recreational activity, (ii) arising out of a spot or localized defect of the premises . . . , or (iii) arising out of the design of a skatepark or bicycle motorcross park . . . .12 Only the “inherent risk” portion of the recreational activity exception, found in § 81-8,219(14)(a)(i), is at issue in this case. 10 Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017). 11 Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017). 12 § 81-8,219(14). - 117 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports BROWN v. STATE Cite as 305 Neb. 111 For purposes of this exception, the Legislature has defined “[i]nherent risk of recreational activities” to mean “those risks that are characteristic of, intrinsic to, or an integral part of the activity.”13 Further, for purposes of § 81-8,219(14)(a), “fee” is defined as follows: [A] fee to participate in or be a spectator at a recreational activity. A fee shall include payment by the claimant to any person or organization other than the state only to the extent the state retains control over the premises or the activity. A fee shall not include payment of a fee or charge for parking or vehicle entry.14 We pause here to note that the Political Subdivisions Tort Claims Act (PSTCA)15 contains a similar exception for recreational activities.16 Both the STCA and the PSTCA were amended in 200717 in response to our 2006 decision in Bronsen v. Dawes County.18 In that case, we overruled a quarter century of precedent and held for the first time that the Recreation Liability Act19—which encourages landowners to open their property to the public for “recreational purposes” by limiting their tort liability20—applies only to private landowners and not to governmental entities. The Legislature responded to Bronsen by amending the STCA and the PSTCA to add the exceptions for tort claims related to “recreational activities.”21 This appeal is our first opportunity to address the proper interpretation and application of the recreational activity 13 § 81-8,219(14)(b)(ii). 14 § 81-8,219(14)(b)(iv). 15 See Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012, Cum. Supp. 2018 & Supp 2019). 16 § 13-910(13)(a). 17 2007 Neb. Laws, L.B. 564. 18 Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d 17 (2006). 19 Neb. Rev. Stat. §§ 37-729 to 37-736 (Reissue 2004). 20 See § 37-730. 21 §§ 81-8,219(14) and 13-910(13)(a). - 118 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports BROWN v. STATE Cite as 305 Neb. 111 exception. Our analysis is governed by settled principles of statutory construction. [4-6] Statutory language 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 unambiguous.22 Additionally, it is well settled that statutes that purport to waive the State’s protection of sovereign immunity are strictly construed in favor of the sovereign and against the waiver.23 In order to strictly construe against a waiver of sovereign immunity, we broadly read exemptions from a waiver of sovereign immunity.24 2. Applying Exception [7] For the exception in § 81-8,219(14)(a)(i) to apply, the following elements must be met: (1) The claim must relate to a recreational activity on property leased, owned, or controlled by the State; (2) the claim must result from an inherent risk of that recreational activity; and (3) no fee must have been charged for the plaintiff to participate in, or be a spectator at, the recreational activity. In this appeal, the parties agree that Brown’s injury occurred on property owned and controlled by the State, and they also appear to agree the only fee Brown was charged was a vehicle entry fee. We thus confine our analysis to the disputed elements of the recreational activity exception: whether Brown’s claim relates to a recreational activity and whether his claim resulted from an inherent risk of that activity. (a) Threshold Question [8] Because the recreational activity exception in § 81-8,219(14)(a)(i) applies only to tort claims “relating to recreational activities” on state property and “resulting from the inherent risk of the recreational activity,” it is necessary 22 In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019). 23 Amend, supra note 4. 24 Id. - 119 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports BROWN v. STATE Cite as 305 Neb. 111 as a threshold matter to identify the recreational activity, if any, in which the plaintiff was engaged as either a participant or spectator. Only after the recreational activity is identified can a principled determination be made as to whether the plaintiff’s tort claim relates to that particular activity and whether the claim resulted from an inherent risk of that particular activity. For purposes of the recreational activity exception, the Legislature has defined “[r]ecreational activities” as follows: Recreational activities include, but are not limited to, whether as a participant or spectator: Hunting, fishing, swimming, boating, camping, picnicking, hiking, walking, running, horseback riding, use of trails, nature study, waterskiing, winter sports, use of playground equipment, biking, roller blading, skateboarding, golfing, athletic contests; visiting, viewing, or enjoying entertainment events, festivals, or historical, archaeological, scenic, or scientific sites; and similar leisure activities.25 (b) Identifying Brown’s Recreational Activity The parties generally agree that Brown was engaged in some sort of recreational activity at the time he was injured, but they disagree on what that activity was. Until the answer to this threshold question is known, the remaining questions as to the applicability of § 81-8,219(14)(a)(i) cannot be determined. Brown’s complaint did not allege he was engaged in any particular activity—recreational or otherwise—while seated at the picnic table. But in response to the State’s motion to dismiss, Brown urged the district court to conclude his recreational activity was either “fishing” or “participating in leisure activities.” On appeal, Brown suggests he was “picnicking” when the mower struck the picnic table.26 25 § 81-8,219(14)(b)(i). 26 Brief for appellant at 5. - 120 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports BROWN v. STATE Cite as 305 Neb. 111 The State argues Brown was not “picnicking,” because there is no allegation he was eating a meal outdoors.27 Instead, the State suggests Brown’s recreational activity was either “fishing” or “viewing scenic sites.”28 Ultimately, however, the State asks us to find that Brown’s “overarching recreational activity [was] utilizing maintained space.”29 In that regard, the State contends that the “crux of the issue” for purposes of the recreational activity exception is really that Brown “chose to utilize a maintained area” of state property and that, consequently, “the rest of his activities on that area carried with [them] the inherent risks of using a maintained area.”30 The district court found there was “no dispute that [Brown] was engaged in a recreational activity,” but it did not expressly identify the activity. Based on its reasoning, however, we understand the court to have agreed with the State that Brown’s recreational activity was using a maintained area of state property. The court described Brown as a “user of a recreational area” who could “reasonably expect mowing and other maintenance activities being performed” in the area. It then found that “[r]ecreational areas are generally not overgrown wilderness areas. Most are obviously mowed and otherwise maintained,” and it also found that “[m]aintenance, like any other human activity, brings a risk that it may [be] done negligently.” Finally, the court concluded that “the risk posed by mowing and other maintenance activities” was characteristic of, intrinsic to, or an integral part of Brown’s recreational activity and that the exception in § 81-8,219(14)(a)(i) applied to bar Brown’s claim. On de novo review, we find the district court erred as a matter of law in two respects. First, because the matter was before the court on a motion to dismiss, it should have confined its 27 Brief for appellee at 16. 28 Id. 29 Id. at 13. 30 Id. at 19. - 121 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports BROWN v. STATE Cite as 305 Neb. 111 analysis to the allegations of the complaint and the reasonable inferences therefrom construed in the light most favorable to Brown.31 When the court found that Brown was in an area that was “obviously mowed and otherwise maintained” and that “[r]ecreational areas are generally not overgrown wilderness areas,” it went well beyond the face of the complaint, which described neither Brown’s activity while seated at the picnic table nor the characteristics of the area. More important, we find the trial court erred in concluding Brown’s recreational activity was utilizing a maintained area of state property. The statutory definition of “recreational activities” in § 81-8,219(14) is broad and contains a nonexclusive list of what the Legislature describes as “leisure activities.” Some of the listed activities are decidedly physical in nature (such as hiking, biking, and athletic contests), while others are more cerebral (such as viewing or enjoying historical or scenic sites). But regardless of the level of activity required, the statutory definition requires that one must be engaged in a recreational or leisure activity as either a participant or a spectator. The focus of the statutory definition is on the activity itself rather than the characteristics of the area where the activity occurs. Indeed, because being on state-controlled property is already required for the recreational activity exception to apply, a “recreational activity” as defined in § 81-8,219(14)(b)(i) must mean something more than simply being on property maintained by the State. [9] When interpreting a statute, a court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.32 Thus, although we are required to broadly construe exceptions to the waiver of sovereign immunity under the STCA,33 we decline to read the definition of “recreational 31 See, Rouse, supra note 4; Amend, supra note 4. 32 State v. McColery, 301 Neb. 516, 919 N.W.2d 153 (2018). 33 See Rouse, supra note 4. - 122 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports BROWN v. STATE Cite as 305 Neb. 111 activity” so broadly that it includes simply being on property maintained by the State. Allowing the State to define a “recreational activity” that broadly would judicially expand the recreational activity exception to include most, if not all, tort claims occurring on state property. Indeed, when the recreational activity is defined as “using a maintained area of state property,” it is difficult to conceive of any tort claim that would not both relate to that activity and result from a risk inherent in that activity. We thus reject the State’s position and hold instead that a “recreational activity” under § 81-8,219(14) must involve some leisure activity other than merely being present on statemaintained land. The trial court erred in concluding that Brown’s recreational activity was using a maintained area of state property. And because the trial court misidentified Brown’s recreational activity, its analysis of whether his claim resulted from an inherent risk of that activity was likewise erroneous, as was its ultimate conclusion that the recreational activity exception applied as a matter of law to bar Brown’s claim. But this does not end our analysis, because whether Brown’s complaint alleged claims that are barred by the recreational activity exception under the STCA presents a question of law, which we must determine independent of the conclusions reached by the district court.34 After de novo review, we conclude that while there will surely be cases where the applicability of the recreational activity exception can be determined as a matter of law from the face of the complaint, this is not such a case. As stated, Brown’s complaint does not allege he was engaged in any particular recreational activity at the time he was injured, and we have determined that simply being present on state-maintained property is not a “recreational activity” as that term is defined in § 81-8,219(14)(b)(i). We agree with the 34 See Amend, supra note 4. - 123 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports BROWN v. STATE Cite as 305 Neb. 111 State the facts as alleged do not support concluding as a matter of law that Brown was “picnicking.” And while the development of additional facts may reveal that Brown was engaged in one or more specific recreational activities while sitting at the picnic table, the face of his complaint simply does not permit such a conclusion as a matter of law. At this stage in the proceeding, the allegations of Brown’s complaint and the reasonable inferences therefrom do not allow a court to find as a matter of law that his tort claim is barred by the recreational activity exception of § 81-8,219(14)(a)(i). Unless and until the specific recreational activity, or activities, in which Brown was engaged as either a participant or a spectator can be identified, there is no principled way to apply the remaining statutory elements to determine whether his tort claim is related to that recreational activity and whether his claim resulted from an inherent risk of that recreational activity.",analysis
+246,2546313,1,1,"[¶3] Moe lists these issues: 1. Is W.S. § 14-3-105 facially unconstitutional? 2. Is W.S. § 14-3-105 unconstitutional as applied in petitioner's case? 3. Did the trial court err in refusing to admit the statements of an unavailable witness for the defense, resulting in a denial of petitioner's rights to present his defense and confront witnesses? 4. Did the prosecutor commit misconduct in closing argument? The State rephrases the issues in this way: I. Is Wyoming's indecent liberties statute, Wyo. Stat. Ann. § 14-3-105, unconstitutional on its face? II. Is Wyo. Stat. Ann. § 14-3-105 unconstitutional as applied in this case? III. Did the trial court abuse its discretion when it refused to admit the hearsay statements of an unavailable witness for the defense? IV. Did the prosecutor commit misconduct in his closing argument?",issues
+247,2813282,1,6,"Railroad companies or corporations availing themselves of the provisions of R.S. 45:352 and 45:353 shall maintain a domicile, and main and general offices in Louisiana, and are subject to the control and regulations of the laws of Louisiana and the Louisiana Public Service Commission. [Emphasis added.] The LPSC was created by former Article VI, Section 3 of the Constitution of 1921, as the successor of the Railroad Commission, and the authority of the new commission was extended to also give it the power of supervision, regulation and control over local public utilities (specifically, street railways, gas, electric light, heat, power, and waterworks).27 Id. See also LSA-Const. Art. IV, § 21(B) (“The commission shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law.”) We further note 49 U.S.C.A. § 20106, which provides, in pertinent part: A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order-- (A) is necessary to eliminate or reduce an essentially local safety or security hazard; 27 The regulation of railroad companies operating in Louisiana is long-standing. We note that the Railroad Commission of Louisiana was the predecessor regulatory agency to the LPSC; however, the Railroad Commission‟s power was confined, by Article 284 of the Constitution of 1898 and of 1913, to railroads, steamboats and other water craft, sleeping cars, passenger and freight tariffs and service, express rates, and telephone and telegraph charges. See State v. City of New Orleans, 151 La. 24, 26, 91 So. 533 (La. 1922). Regulatory authority over railroad track crossings was also exercised by the Railroad Commission. See Gulf, C. & S. F. Ry. Co. v. Louisiana Public Service Commission, 151 La. 635, 639, 92 So. 143, 144 (La. 1922). 22 (B) is not incompatible with a law, regulation, or order of the United States Government; and (C) does not unreasonably burden interstate commerce. Clearly, with respect to railroad crossings, Louisiana has a significant safety interest in keeping open crossings, the absence of which would result in the diversion of vehicular traffic onto public roadways, which presents an increased hazard when the traffic so diverted consists of over-sized, and often heavily loaded, farm equipment. Moreover, the “enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the police power is not a taking of property without due process of law.” See New Orleans Public Service v. City of New Orleans, 281 U.S. 682, 687, 50 S.Ct. 449, 450, 74 L.Ed. 1115 (1930) (wherein a New Orleans city ordinance, requiring the plaintiff street railway company to tear down a “viaduct” railway crossing and to replace it with a “grade” crossing, was upheld as being a reasonable exercise of the city‟s police power, in determining what safety precautions were necessary or appropriate under the circumstances). With respect to Senate Bill 243, which became LSA-R.S. 48:394, the purpose of the bill was stated by its author, Senator Joe McPherson, in testimony before the Senate Committee on Transportation, as providing: a procedure for closing or removal of private railroad crossings, an “orderly process for the closure of farm crossings . . . [, and] an orderly method of notification.” Senator McPherson stated that “[c]urrently, there is a posting of a notice on the closest light pol[e] or tree limb to the crossing and if the farmer or landowner happens to come by and sees it then that is their receipt of notification.” Citing the absence of any governing law on notification in such circumstances, Senator McPherson stated that the bill would “provide proper notification and a hearing process before that closure occurs” and would provide “a means . . . to protect the citizens of 23 Louisiana.”28 See Minutes, Committee on Transportation, Highways & Public Works, Louisiana Senate, 2008 Regular Session, S.B. 243, April 17, 2008 (testimony of Senator Joe McPherson). The federal appellate court‟s summation of the purpose of LSA-R.S. 48:394 (that it was enacted “to balance the rights of the railroad company and the owners of private crossings by ensuring that the railroad companies do not unilaterally close private crossings unless doing so is necessary for the railroads to continue operating free from substantial burdens” (see Faulk v. Union Pacific Railroad Co., 576 Fed.Appx. at 347)) comports with the text of the statute and the articulated legislative purpose. Revised Statute 48:394 requires any railroad company desiring to close or remove a private crossing in Louisiana, to provide a written request, no less than 180 days prior to the proposed closing or removal, by registered or certified mail, to the LPSC and to the owner(s) of record of the private crossing(s) traversed by the rail line. The written request must state the manner in which the private railroad crossing “unreasonably burdens or substantially interferes with rail transportation.” See LSA-R.S. 48:394(A)(1).29 Then, the LPSC must publish the 28 Jim Harper, a farmer from Rapides Parish, producing sugar cane, rice, cotton, and corn, who was at that time vice president of the Louisiana Farm Bureau Federation, testified that the closure of railroad crossings by Union Pacific affected him personally, preventing him from accessing his fields. Mr. Harper related that a closure was posted on his property, and he subsequently met with a railroad representative, informing the representative that he had no other access to his fields other than the railroad crossing; however, the crossing on his property was closed nonetheless. Mr. Harper stated that, after the crossing was closed, he had to travel over a mile down the public highway, through the town of Cheneyville, a significant number of times per day with his farm equipment and harvested crops to get to his “loading site.” See Meeting, Committee on Transportation, Louisiana House of Representatives, 2008 Regular Session, May 19, 2008, S.B. 243, available at http://house.louisiana.gov/H_Video/2008/May2008.htm; Minutes, Committee on Transportation, Highways & Public Works, Louisiana Senate, 2008 Regular Session, April 17, 2008, S.B. 243 (testimony of Jim Harper). 29 Louisiana Revised Statute 48:394 provides in full: A. (1) Any railroad company operating in this state which desires to close or remove a private crossing shall, no less than one hundred eighty days prior to the proposed closing or removal, provide a written request by registered or certified mail to the Louisiana Public Service Commission and to the owner or owners of record of the private crossing traversed by the rail line. The written 24 railroad‟s written request in its official bulletin for no less than 25 days. See LSA- R.S. 48:394(A)(2). Following publication of the railroad‟s request, LSA-R.S. 48:394(B) requires publication of a 15-day advance notice of hearing and an attempt by the LPSC to directly notify affected record landowners. See LSA-R.S. 48:394(B). Thereafter, a public hearing is held by the LPSC, during which “parties in interest” have an opportunity to be heard. The public hearing is required to be held not less than 60 days after receipt of the railroad‟s closure request. See id. If, after the public hearing, the LPSC determines that the private railroad crossing “unreasonably burdens or substantially interferes with rail transportation,” the LPSC is required to publish a notice stating the manner of the crossing closure in the official journal of the parish where such crossing is located and in the LPSC‟s official bulletin. See LSA-R.S. 48:394(C). An appeal from a decision of the LPSC is provided for by LSA-Const. Art. request shall state the manner in which such private railroad crossing unreasonably burdens or substantially interferes with rail transportation. (2) The Louisiana Public Service Commission shall publish the written request from the railroad company in the commission‟s official bulletin for no less than twenty-five days. B. No private crossing shall be closed or removed by any railroad company until after a public hearing by the Louisiana Public Service Commission at which parties in interest have had an opportunity to be heard. Notice of the time and place of the hearing shall be published in the official journal of the parish and the commission‟s official bulletin and at least fifteen days shall elapse between the publication and the date of the hearing. In addition to notice by publication, and at least ten days prior to the hearing, a good faith attempt to notify the owner or owners of record of the property where the private crossing is located shall be made by the commission by sending an official notice by registered or certified mail of the time and place of the hearing to the address or addresses indicated in the mortgage and conveyance records of the parish. The public hearing shall be held not less than sixty days after receipt of request of the railroad company as provided in Subsection A of this Section. C. If, after such public hearing, the commission determines that the private railroad crossing unreasonably burdens or substantially interferes with rail transportation, the commission shall publish in the official journal of the parish where such crossing is located and in the commission‟s official bulletin a notice stating the manner in which such closure or removal shall be made and the date of such. D. The provisions of this Section shall not apply when a private landowner or landowners and a railroad company enter into a consensual or negotiated written agreement or agreements to close a private railroad crossing. 25 IV, § 21(E),which states: Appeal may be taken in the manner provided by law by any aggrieved party or intervenor to the district court of the domicile of the commission. A right of direct appeal from any judgment of the district court shall be allowed to the supreme court. These rights of appeal shall extend to any action by the commission, including but not limited to action taken by the commission or by a public utility under the provisions of Subparagraph (3) of Paragraph (D) of this Section. Article IV, Section 21(E) makes it clear that “any action” of the LPSC may be appealed to the district court, and any judgment of a district court sitting in review of an LPSC action is directly appealable to the Louisiana Supreme Court. See Louisiana Power and Light Company v. Louisiana Public Service Commission, 369 So.2d 1054, 1058 (La. 1979). In light of these considerations, it cannot seriously be disputed that investing the LPSC with the authority to apply the relevant law, as stated in LSA-R.S. 48:394, to requests for private railroad crossing closures, is an exercise of this state‟s police power. Nevertheless, LSA-R.S. 48:394 did not become effective until after the instant suit had been filed. Therefore, we will examine whether application of the statute could be retroactively applied in the instant case. In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary. LSA-C.C. art. 6. Concomitantly, LSA-R.S. 1:2 (“No Section of the Revised Statutes is retroactive unless it is expressly so stated.”) is construed as being co-extensive with LSA-C.C. art. 6. Mallard Bay Drilling, Inc. v. Kennedy, 04-1089 (La. 6/29/05), 914 So.2d 533, 543. Louisiana‟s prohibition against legislation having retroactive effect applies 26 to substantive laws only.30 Procedural and interpretive laws may be applied retroactively, subject to the caveat that such laws may not operate to disturb a vested right. Ebinger v. Venus Construction Corporation, 10-2516 (La. 7/1/11), 65 So.3d 1279, 1285. Laws may not be applied retroactively if contractual obligations would be impaired or vested rights would be disturbed. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La. 7/1/08), 998 So.2d 16, 29-30. This court has interpreted the retroactivity provisions of LSA-C.C. art. 6 and LSA-R.S. 1:2 to require a twofold inquiry: (1) we must ascertain whether the legislature expressed in the enactment its intent regarding retrospective or prospective application - if the legislature did so, our inquiry is at an end; (2) but, if the legislature did not, we must classify the enactment as substantive, procedural, or interpretive. See id., 998 So.2d at 29. See also Mallard Bay Drilling, Inc. v. Kennedy, 914 So.2d at 543; Unwired Telecom Corp. v. Parish of Calcasieu, 030732 (La. 1/19/05), 903 So.2d 392, 404; Cole v. Celotex Corporation, 599 So.2d 1058, 1063 (La. 1992). The Louisiana Legislature made no statement in 2008 La. Acts, No. 530, regarding the retroactivity of LSA-R.S. 48:394. However, upon examination of its provisions and the legislative history referred to hereinabove, we conclude that the effect of LSA-R.S. 48:394 is procedural and therefore may be applied retroactively. See Dripps v. Dripps, 366 So.2d 544, 548 (La. 1978) (“Some changes in the law are applicable to all situations, past, present and future. Laws which determine jurisdiction and procedure are applicable, from the date of their promulgation, to all law suits, even to those which bear upon facts and acts of a prior date. They even apply to pending lawsuits . . . . These laws are remedial in 30 Although LSA-R.S. 1:2, unlike LSA-C.C. art. 6, does not distinguish between substantive, procedural, and interpretive laws, the jurisprudence has consistently construed the two provisions as being co-extensive, with LSA-R.S. 1:2 having limited applicability to substantive legislation. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La. 7/1/08), 998 So.2d 16, 29. 27 character concerned with procedure, not substantive rights. They do not impair the obligations of contracts.”) (citing Planiol, Treatise on the Civil Law, at No. 258, pp. 182-83). Furthermore, there is no provision in LSA-R.S. 48:394 authorizing the LPSC to render an opinion relative to the substantive property rights of parties involved in a private railroad crossing closure dispute. The purpose of LSA-R.S. 48:394 is merely to ensure that all affected parties receive sufficient notice of an impending private railroad crossing closure, so that interested parties have an opportunity to be heard at a public hearing. The LPSC‟s adjudicatory responsibility at the time of the public hearing is to determine whether or not federal preemptive law mandates closure of the private railroad crossing, by application of the standard set forth in the statute. The LPSC must determine whether a particular “private railroad crossing unreasonably burdens or substantially interferes with rail transportation”; if it does, then closure must be ordered.31 The legislature‟s insertion of the non-discretionary standard into LSA- R.S. 48:394 resulted from, and was in accord with, the U.S. Fifth Circuit‟s holding that federal law preempts state regulation of private crossings that “unreasonably burden[s] or interfere[s] with rail transportation.” See Faulk v. Union Pacific Railroad Co., 576 Fed.Appx. at 346-47; Franks Investment Company v. Union Pacific Railroad Co., 593 F.3d at 414. As previously noted, a method of appealing any decision of the LPSC is set forth in LSA-Const. Art. IV, § 21(E), which encompasses an LPSC decision resulting from an action instituted pursuant to LSA-R.S. 48:394. Further, the provisions of LSA-R.S. 48:394 do not prohibit interested parties from litigating 31 We agree with the federal district court that “the legislative policy of La.Rev.Stat. 48:394 is clear. The legislative policy is to prevent railroads from closing private railroad crossings when there is no substantial need for the closure.” See Faulk v. Union Pacific Railroad Company, 2011WL777905 at p.11, supra. 28 any substantive issues arising out of their respective property rights in another forum;32 a railroad company is only required to submit to regulatory review prior to closure of a private railroad crossing. An order of closure is automatic under the statute, if the railroad company can establish that the private railroad crossing unreasonably burdens or substantially interferes with rail transportation. We conclude that LSA-R.S. 48:394 is procedural, as it merely directs the steps that must be taken, and the forum that must first approve, the closure of a private railroad crossing. There has been no showing that giving this procedural law retroactive effect in the instant case impairs contractual obligations or disturbs vested rights. Although Union Pacific has argued that it had the right to close the crossings at its discretion before the enactment of LSA-R.S. 48:394 and that LSA-R.S. 48:394 now impairs this right, the Louisiana property law discussed herein does not support the exclusivity of use over the landowners‟ property sought by Union Pacific. Therefore, we find no merit in Union Pacific‟s contention. We further note that federal jurisprudence recognizes that compensation may be required when a government regulation of private property is so onerous that its effect is tantamount to a direct appropriation or ouster.33 See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536-37, 125 S.Ct. 2074, 2080, 161 L.Ed.2d 876 (2005). Except to the extent that background principles of nuisance and property law independently restrict an owner‟s intended use of property, two categories of 32 See LSA-Const. Art. V, § 16 (vesting district courts with original jurisdiction of all civil matters); Moore v. Roemer, 567 So.2d 75, 79 (La. 1990) (holding that the legislature cannot divest district courts of original jurisdiction over civil matters). 33 Although we do not apply U.S. Supreme Court decisions mechanically to state law issues, even when the state and federal constitutions are similarly or identically worded, such decisions serve as guideposts, and we use them “if they are found to be logically persuasive and wellreasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees.” See Price v. U-Haul Company of Louisiana, 98-1959 (La. 9/8/99), 745 So.2d 593, 598 (citing State v. Hernandez, 410 So.2d 1381, 1385 (La. 1982); William J. Brennan, Jr., State Constitutions and Protections of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977)). 29 regulatory action have generally been deemed to be per se takings or “total regulatory takings,” requiring compensation: (1) when government requires an owner to suffer a permanent physical invasion of property, however minor; and (2) when a regulation completely deprives an owner of all economically beneficial use of property. See id., 544 U.S. at 538, 125 S.Ct. at 2081 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). See also Arkansas Game and Fish Commission v. U.S., ___ U.S. ___, ___, 133 S.Ct. 511, 517, 184 L.Ed.2d 417 (2012); Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702, 713, 130 S.Ct. 2592, 2601, 177 L.Ed.2d 184 (2010). Furthermore, in general, temporary government action may give rise to a takings claim if permanent action of the same character would constitute a taking. Arkansas Game and Fish Commission v. U.S., ___ U.S. at ___, 133 S.Ct. at 517. However, no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the courts have recognized few invariable rules in this area. Most takings claims turn on situation-specific factual inquiries. Id. Some considerations for determining whether a taking has occurred include: the character of the land at issue; the property owner‟s distinct investment-backed expectations, a matter often informed by the law in force in the state in which the property is located; and the degree to which the invasion is intended or is the foreseeable result of authorized government action. See id., ___ U.S. at ___, 133 S.Ct. at 517. Nevertheless, Supreme Court regulatory takings jurisprudence instructs that 30 when a complainant has not yet obtained a final administrative decision, the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulatory law at issue to the particular property in question. See Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 190-91, 105 S.Ct. 3108, 3118-19, 87 L.Ed.2d 126 (1985). A property owner may not establish a taking before the regulatory agency charged with the decision-making authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. See Palazzolo v. Rhode Island, 533 U.S. 606, 620-21, 121 S.Ct. 2448, 2459, 150 L.Ed.2d 592 (2001). Under the “ripeness” doctrine, a “taking” claim based on a law or regulation that is alleged to go too far in burdening property depends upon the landowner having first followed reasonable and necessary steps to allow the regulatory agency to exercise their full discretion in considering the matter at issue, including the opportunity to grant any variances or waivers allowed by law. Id. As a general rule, until these ordinary processes have been followed, the extent of the restriction on property is not known, and a regulatory taking has not yet been established. Id. In the instant case, Union Pacific failed to submit the matter to the regulatory authority designated by the governing statute, LSA-R.S. 48:394, the LPSC, depriving the LPSC of the opportunity to grant Union Pacific the right to close the railroad crossings at issue. If Union Pacific‟s request is granted, there can be no claim of a regulatory “taking.” Until the LPSC rules on Union Pacific‟s intent to close the private crossings at issue, Union Pacific‟s “taking” claim, as to LSA-R.S. 48:394, is not ripe for adjudication. 31 Having found that Union Pacific failed to establish that a constitutionally prohibited taking has occurred, either in the continued existence of the private crossings at issue or in the regulatory procedure before the LPSC established by LSA-R.S. 48:394, we find it unnecessary to address the final prong (whether any alleged regulatory taking occasioned by LSA-R.S. 48:394 is for a public purpose) of the three-prong analysis set forth in State, Department of Transportation and Development v. Chambers Investment Company, supra. Accordingly, we conclude that LSA-R.S. 48:394, as applied to the instant case, has not effected an unconstitutional taking under LSA-Const. Art. I, § 4.",jurisdiction
+248,2103773,1,2,"This Court has long and consistently held that when the evidence indicates [that] the defendant has committed multiple offenses against a victim, the prosecution must elect the particular offense as charged in the indictment for which the conviction is sought. State v. Brown, 992 S.W.2d 389, 391 (Tenn.1999). This requirement, which is grounded in part upon the Tennessee Constitution, has been reaffirmed and enforced by this Court on numerous occasions. See State v. Walton, 958 S.W.2d 724, 727 (Tenn.1997); Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.1996); State v. Shelton, 851 S.W.2d 134, 137 (Tenn.1993); Burlison v. State, 501 S.W.2d 801, 804 (Tenn.1973). The paramount importance of the election requirement is that it protects a defendant's right to a unanimous jury verdict under the Tennessee Constitution by ensuring that jurors deliberate over and render a verdict based on the same offense. State v. Brown, 992 S.W.2d at 391. As this Court has observed: [T]here should be no question that the unanimity of twelve jurors is required in criminal cases under our state constitution. A defendant's right to a unanimous jury before conviction requires the trial court to take precautions to ensure that the jury deliberates over the particular charged offense, instead of creating a patchwork verdict based on different offenses in evidence. State v. Shelton, 851 S.W.2d at 137 (citations omitted). The election requirement serves other interests as well: it enables a defendant to prepare for a specific charge; it protects a defendant against double jeopardy; it enables the trial court to review the weight of the evidence in its capacity as thirteenth juror; and it enables the appellate court to review the legal sufficiency of the evidence. See State v. Brown, 992 S.W.2d at 391. Turning to the facts of this case with these principles in mind, we first address the State's threshold argument that an election of offenses was not required because the defendant's conduct constituted a single, continuous offense. As noted above, one of the elements of aggravated rape is unlawful sexual penetration of a victim by the defendant or the defendant by a victim. See Tenn.Code Ann. § 39-13-502(a) (1997). The element of unlawful sexual penetration means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body.... Tenn.Code Ann. § 39-13-501(7) (1997). The proof in this case established that Kendrick forced Hester to commit fellatio and forced Hester to have vaginal intercourse. Both of these acts met the definition of unlawful sexual penetration for the offense of aggravated rape. Id. Like the statutory definitions, our case law also makes clear that the sexual acts committed in this case were separate and distinct. We have observed that `although separate acts of intercourse may be so related as to constitute one criminal offense,' the pertinent analysis requires consideration of numerous factors. See State v. Phillips, 924 S.W.2d 662, 664-665 (Tenn.1996) (citation omitted). The factors include: the nature of the acts; the area of the victim's body invaded by the sexually assaultive behavior; the time elapsed between the discrete conduct; the accused's intent; and the cumulative punishment imposed. Id. at 665. In this case, Kendrick stopped the car and forced Hester to perform fellatio upon him; then, after driving for another five to ten minutes, he stopped the car again and forced Hester to engage in vaginal intercourse. Applying the factors under Phillips , we have no hesitation in concluding that the acts of sexual penetration—fellatio and vaginal intercourse—were separate and distinct offenses. We reject the State's contention that only one continuous offense was committed simply because the offenses were committed close in time and place. [2] Given our conclusion that there was evidence of two separate offenses that would satisfy the definition of aggravated rape, we agree with Judge Wade's dissenting view that an election of offenses was required in this case. The record indicates, however, that the trial court did not require the prosecution to make an election of offenses and that the prosecution did not do so at the close of the evidence. Although the defense apparently did not request an election of offenses, we have stressed that the election requirement is a responsibility of the trial court and the prosecution and, therefore, does not depend on a specific request by a defendant. See State v. Walton, 958 S.W.2d at 727 (plain error is an appropriate consideration for an appellate court whether properly assigned or not); Burlison v. State, 501 S.W.2d at 804 (election requirement should not depend on [a] demand therefor). Moreover, the record indicates that the trial court did not augment its charge to the jury with an instruction that would have required that the verdict of each juror be united on one offense. See Burlison v. State, 501 S.W.2d at 804. As our cases have made crystal clear, the prosecution's failure to elect was an error that was fundamental, immediately touching [upon] the constitutional rights of [the] accused. Burlison v. State, 501 S.W.2d at 804. We also reject the State's alternative argument that the failure to comply with the election requirement was harmless simply because the jury rejected the defendant's alibi defense and accredited the victim's testimony. We have earlier said in this regard: It has been suggested that when a defendant denies all sexual contact with the victim, but the proof is sufficient to support guilty verdicts beyond a reasonable doubt on all of the offenses in evidence, an election is unnecessary.... [A]n appellate court's finding that the evidence is sufficient to support convictions for any of the offenses in evidence is an inadequate substitute for a jury's deliberation over identified offenses. State v. Shelton, 851 S.W.2d at 138; see also Tidwell v. State, 922 S.W.2d at 501. In sum, the prosecution failed to comply with the well-established requirement that it must elect the particular offense upon which it seeks a conviction. That failure violated the defendant's constitutional rights and amounted to plain error that requires a new trial.",analysis
+249,2775233,1,1,"¶70 For the foregoing reasons, we conclude that in the absence of any improper means, an improper purpose is not grounds for tortious interference liability. We therefore overrule Pratt v. Prodata, 885 P.2d 786 (Utah 1994). We also disavow all dicta in Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293 (Utah 1982), that would allow liability based solely on an improper purpose. In order to win a tortious interference claim under Utah law, a plaintiff must now prove “(1) that the defendant intentionally interfered with the plaintiff’s existing or potential economic relations, (2) . . . by improper means, (3) causing injury to the plaintiff.”Id. at 304. ¶71 The Eldridges’ tortious interference claims fail the second prong of this test: they have failed to produce evidence of an improper means. The district court’s denial of summary judgment on the tortious interference claims is therefore reversed, and the matter is remanded for further action consistent with this opinion. ____________ 20",conclusion
+250,2621575,1,2,"[¶ 3] In August 2001, Lafond worked as a supervising registered nurse at Cheyenne OB/GYN and was a captain in the Air National Guard. At Cheyenne OB/GYN, Lafond worked with a medical assistant named Erin Meyen. Ms. Meyen's son suffered from cerebral palsy and had recently undergone surgery. On August 7, 2001, Lafond allowed Ms. Meyen to borrow her car to take Ms. Meyen's son to the hospital in Denver due to a medical emergency. Because of her son's condition, when Ms. Meyen arrived at the hospital she parked in a handicapped zone even though she had no handicap permit. Ms. Meyen decided to write a note to explain the situation, asking that she not be towed. Looking for a piece of paper on which to write her note, Ms. Meyen checked the console of the car and found a folded piece of paper. [¶ 4] When Ms. Meyen unfolded the paper, she found that it was a prescription for Percocet made out to Lafond. The prescription looked to have Dr. Storey's signature, but the handwriting on the prescription was Lafond's. After viewing the prescription, Ms. Meyen continued her search for paper and found another piece of paper on which were several doctors' stamped signatures. Ms. Meyen did not take these papers from the car, and they were never introduced at trial. [¶ 5] Upon Ms. Meyen's return to Cheyenne, she said nothing to Lafond about what she had found. However, Ms. Meyen's curiosity was kindled, and she sought to find out whether or not Lafond had passed a prescription for Percocet at any of the pharmacies in Cheyenne by calling area pharmacies to ask about such prescriptions. She began with Walgreen's. The pharmacist at Walgreen's told Ms. Meyen that just a few days prior a prescription for Percocet had been filled for Lafond. [¶ 6] At that point, Ms. Meyen asked the pharmacist to fax her a copy of the prescription, and the doctors at Cheyenne OB/GYN were made aware of the situation. The prescription was dated August 5, 2001, and appeared to have the signature of Dr. Eskam. However, Dr. Eskam had never prescribed Percocet for Lafond, the signature on the prescription was not hers, and she was not even working on the day that the prescription was supposedly prepared. After seeing the forged prescription, Dr. Eskam went to Walgreen's to view the store's videotape of the person passing the prescription. While Dr. Eskam could not absolutely identify Lafond from the video, she noted that if someone were impersonating Lafond they did a good job of imitating her. The matter was then referred to the state nursing board. [¶ 7] At trial, the pharmacist who filled the prescription, Leah Scadden, testified. Ms. Scadden stated that on the morning of August 5, 2001, she was presented with and filled a prescription for Percocet made out to Lafond. Ms. Scadden recalled that the customer was dressed in a camouflage military uniform and paid for the $5 prescription by check, which Ms. Scadden saw the customer write out and take from a checkbook. This check bore the name and address of Lafond and was run through the register at 7:44 a.m. Ms. Scadden identified Lafond as the customer who presented the prescription and further related that, when she was presented with the prescription, the person said she was Anita from OB/GYN and that she talked to Ms. Scadden all the time on the phone. Ms. Scadden testified that she talked to the woman for two or three minutes and that the woman had said that she was in the National Guard and was working that weekend. The woman's voice sounded the same as that of the woman from Cheyenne OB/GYN to whom Ms. Scadden had talked numerous times. In addition to her testimony about the events, Ms. Scadden authenticated the videotape of the purchase. The tape shows the person purchasing the Percocet entered the store at 7:39 a.m. and departed at 7:47 a.m. [¶ 8] Detective Puente of the Cheyenne Police Department also testified. Detective Puente conducted the investigation of this matter after receiving a report from the state nursing board. During his investigation Detective Puente interviewed Lafond. He testified that Lafond stated she was missing some checks and that she had reported these missing checks to the bank. The check written to Walgreen's on August 5 was not one of those Lafond reported missing. However, Lafond maintained that the $5 check to Walgreen's must have been forged. Detective Puente also testified that he had timed how long it took to get from the National Guard to Walgreen's and that it varied depending on the traffic lights; but the two times he had done it he timed it at 7 minutes and 34 seconds and 8 minutes and 14 seconds. The defense presented James Rasnake, a private investigator who had also timed the trip, to refute this testimony; and he testified that it would take 30 to 32 minutes round trip, though his estimate included walking into and out of Walgreen's and Lafond's Air Guard third-floor office. [¶ 9] Robin Kreir from Lafond's bank also testified. She stated that the actual check written for the forged prescription, as well as the checks numerically close to that check, was destroyed. Microfilm copies of the checks were available, however, and these were admitted into evidence. Ms. Krier also testified that the bank had no record of a stop payment order on any of Lafond's checks, including the ones Lafond had told Detective Puente were stolen. [¶ 10] Lafond denied being the person who purchased the Percocet. She claimed that she could not have made the purchase because she was at Guard training that day. Lafond called several witnesses to testify to her whereabouts between 7:00 and 8:00 a.m. on August 5. Lyle Orr testified that Lafond was at roll call at 7:00 a.m. and that roll call takes 5 to 20 minutes. He then saw her again at 7:30, and then again at an 8:00 a.m. intel meeting. Debra Mutter also testified that, while she could not specifically recall seeing Lafond on August 5, she would have remembered her not being at the commander's call at 7:30, which usually lasts 15 to 20 minutes. Renee Mulberry also testified that she recalled seeing Lafond at the base that Sunday morning. Linda Sergeant testified that, based on Guard records, Lafond was there that day. However, it appeared no one at trial could specifically account for Lafond's whereabouts between 7:30 and 8:00 a.m. [¶ 11] Lafond testified on her own behalf. She testified that she felt she was set up and essentially implicated Ms. Meyen. In explaining her theory, Lafond testified that the two had originally gotten along very well, however, problems developed between Ms. Meyen and Lafond. In detailing the reasons for the change in their relationship, Lafond testified Ms. Meyen claimed to be leaving for a medical appointment, but got her nails done. Lafond also testified that Ms. Meyen would leave work early on Fridays so she could drop her son off with his father in Glendo and be back in time for happy hour. Additionally, Lafond related that she had to discipline Ms. Meyen on several occasions for making inappropriate comments to patients and for holding herself out as a nurse. [¶ 12] Lafond further testified that she was at the Guard on August 5 wearing her flight suit and boots, not her camouflage uniform, because she was scheduled to fly. She stated she went to roll call at 7:00 a.m. and then worked at her desk and talked to Julie Major-Funz until 7:30 a.m. when she went to commander's call. She then stated that she remained in the classroom until she went to an intel meeting at 8:00 a.m. Lafond denied she was the person on the videotape and stated that she did not remember having gone to Walgreen's on August 5, although she had been there the day before. She denied forging the signature on the prescription and writing the check to pay for it. She also denied that there had been prescription notes and doctors' signatures in her car. [¶ 13] After deliberation, the jury returned a guilty verdict; and the district court entered judgment and sentence on October 23, 2002. Lafond was sentenced to a term of not less than two years nor more than four years in the custody of the Wyoming Department of Corrections. The sentence was suspended, and Lafond was placed on three years supervised probation. Lafond appeals that judgment and sentence.",facts
+251,1275756,1,1,The State presents a single issue for our review: Did the district court err when it determined that the Department of Family Services was bound by an oral modification of child support between a non-custodial parent and the custodial grandparent when the custodial grandparent was the recipient of public assistance?,issues
+252,1175769,2,1,"Because the Court of Appeals has jurisdiction of direct appeals of postconviction remedies only under Rule 57.1, the defendants characterized their motions for good time credits as motions for the correction or modification of sentence under Rule 57.1(a). In relevant part, that rule provides that [t]he district court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within    [thirty days after the sentence is imposed]. Crim.P.R. 57.1(a). The Court of Appeals held that because these defendants had not received illegal sentences, they were not eligible for modification of sentence at any time. Crim. P.R. 57.1(a). It therefore dismissed the appeal of defendant Gobel, whose motion in the district court had not been timely filed within thirty days of sentencing. Holding that the district court did have jurisdiction to hear the timely motions of defendants Aqui and Sena, the Court of Appeals entertained their appeals on the merits. We agree with the Court of Appeals that defendants, who received unambiguous sentences within the limits authorized by our sentencing statutes, cannot seek correction of illegal sentences under Rule 57.1(a). See State v. Harris, 101 N.M. 12, 14-15, 677 P.2d 625, 627-28 (Ct. App.1984). We disagree with the Court of Appeals implication that two of the defendants can seek, under Rule 57.1(a), correction of sentences imposed in an illegal manner, for they do not allege procedural deficiencies in their sentencing by the district court. Unlike mandatory credits under Section 31-20-12, the deduction of good time credits from an inmate's sentence is a discretionary matter entrusted not to the courts but to the administrators of the Corrections Department or the county jails. See §§ 33-2-34, 33-3-9, 33-8-14; see generally NMSA 1978, §§ 33-1-1 to 33-10-2 (Repl.Pamp.1983 & Cum.Supp.1985). The computation of good time credits is exclusively an administrative responsibility, and such deductions have no bearing upon the validity of the original sentence imposed by the district court. Cf. Drew v. United States, 248 F.2d 75 (9th Cir.1957) (federal law). Defendants' claims of entitlement to good time credits therefore challenge the execution of their sentences rather than the sentences themselves, and cannot be addressed by Rule 57.1(a) motions for correction of illegal sentences or of sentences imposed in an illegal manner. Cf. United States v. Brown, 753 F.2d 455 (5th Cir. 1985); United States v. Giddings, 740 F.2d 770 (9th Cir.1984); Lee v. United States, 400 F.2d 185 (9th Cir.1968) (discussing federal law regarding credits for presentence confinement).",jurisdiction
+253,4560957,1,2,"Exclusion of Walker’s Evidence and Walker’s Offers of Proof. The central issue in this appeal is generally whether the district court erred when it excluded Walker’s evidence, which according to Walker would have shown that a postaccident investigation led BNSF to believe that Big Red as modified by BNSF had been overloaded, leading to the risk of tipping over. Walker specifically claims that Bridges should have been permitted to testify to that effect. At trial, Walker attempted to question Bridges, BNSF’s designee at trial, regarding BNSF’s conclusions and belief that Big Red’s capacity was exceeded when lifting a G.E. traction motor using the attachment. Bridges was asked, “And, would you agree that BNSF and you as their corporate spokesman believe that the bracket caused or the attachment caused the overload[?]” BNSF objected, and the district court sustained the objection. This question launched subsequent offers of proof by Walker related to whether BNSF concluded and believed - 568 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 that Big Red was over capacity when employees lifted G.E. traction motors with the forklifts with the BNSF attachments. BNSF objected to each offer of proof, and the court sustained the objections. Walker’s offers of proof submitted after the ruling included the questions and answers from Bridges’ deposition at which he had admitted the forklift as modified could cause an overload condition and risk of tipping. Rules of Evidence. At trial, BNSF made objections to Bridges’ testimony based both on the rules related to hearsay and on the prohibition against introduction of subsequent remedial measures, the latter of which is contained in Neb. Rev. Stat. § 27-407 (Reissue 2016). Those rules are set forth below. Hearsay is not admissible except as provided by the Nebraska Evidence Rules. O’Brien v. Cessna Aircraft Co., supra. See Neb. Rev. Stat. § 27-803 (Reissue 2016). Under Neb. Rev. Stat. § 27-801(4) (Reissue 2016), set forth in relevant part, a statement is not hearsay if “(b) The statement is offered against a party and is . . . (iv) a statement by his agent or servant within the scope of his agency or employment . . . .” Section 27-407 provides: When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. Negligence or culpable conduct, as used in this rule, shall include, but not be limited to, the manufacture or sale of a defective product. Admissibility Arguments. On appeal, Walker contends that the evidence sought to be elicited from Bridges was not hearsay, because it represented - 569 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 the understandings of BNSF, and that the district court erred when it excluded the evidence on the basis of hearsay. In response, BNSF asserts that Bridges’ testimony was essentially a repeat of Taylor’s declarations and that the district court properly excluded Bridges’ statements because they are hearsay. Walker further contends that the evidence sought to be elicited from Bridges reflected BNSF’s postaccident investigation and was part of an investigation, and not a statement, concerning a subsequent remedial measure and that the district court erred when it excluded the evidence on this basis. In contrast, BNSF asserts that Bridges’ testimony was properly excluded as evidence of subsequent remedial measures. See § 27-407. Error, If Any, Was Not Unfairly Prejudicial. As explained below, we determine that even if the Bridgesrelated evidence was erroneously excluded, such error was not prejudicial. We determine that reversal is not required because the evidence which was excluded attempted to establish the same fact particularly regarding causation that Walker successfully presented to the jury by other means. [5] As we recited above, the admission or exclusion of evidence at trial is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. See O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017). We have stated that when the information is, for the most part, already in evidence from the testimony of witnesses, the exclusion of the evidence is not prejudicial. See Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 (2015). At trial, Walker presented evidence that Big Red was over capacity and argued that the overloaded forklift represented negligence by BNSF and was the cause of her injuries. Danaher, Walker’s expert certified professional engineer, opined that Big Red, outfitted with the attachment, was overloaded when carrying a G.E. motor regardless of its positioning. And Tester, - 570 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 a safety trainer, also testified about the attachment to the forklift and concluded that “it was just inevitable an accident would happen.” He opined that under the standards set forth by the American National Standards Institute, such an attachment “[s]houldn’t have been used in the first place without expressed written approval by the manufacturer for them to do their testing on it to see if it was changing any of the stability of the forklift.” He explained to the jury that if BNSF had gone through industry standard protocol for adding an attachment, the forklift operators would have been apprised of the forklift’s new capacity through new tags and decals placed on the forklift. He testified that with respect to Big Red’s load, its “maximum would not be 18,425 pounds, it would be a lot less.” However, in spite of Walker’s success eliciting evidence concerning the hazard presented by Big Red’s attachment, there was other evidence at trial to support the jury’s verdict that Walker had not met her burden of proof. BNSF’s case at trial was that Walker’s operation of the forklift was dangerous and was the cause of its instability and the accident. Indeed, Walker’s expert witness, Danaher, testified on crossexamination that based on his discussions with Walker, she had not followed the training she had received for depositing a load, and Skelton, who witnessed the accident, testified that Walker raised the load to an abnormal height and tilted the mast forward more than necessary to deposit the load. Further, BNSF introduced evidence of a commonly used “rule of thumb” metric under which, it argued, Big Red was not overloaded. Thus, there was ample evidence for the jury’s consideration in support of both Walker’s and BNSF’s theories. Given the record, we conclude that the district court’s exclusion of evidence did not prejudice a substantial right of Walker’s.",analysis
+254,6326828,1,1,"In October 1992, a young man was beaten to death with a baseball bat in his home just outside of West Liberty. His fiancée discovered his body on their bedroom floor and called 911. An extensive investigation ensued. The defendant was considered a suspect. Her potential motive was clear: she had been romantically engaged with the victim and had been spurned by him the night before. But with no eyewitnesses and no physical evidence, law enforcement could reach no conclusion as to the killer’s identity. The case went cold. Over twenty-five years later, a woman happened to meet a cold-case investigator while at work, and she told him about a murder confession she witnessed while having a sleepover at her friend’s house as a nine-year-old girl. She recounted sneaking downstairs after bedtime and seeing the defendant with black candles burning, tearfully apologizing to her deceased lover: “I’m so sorry. I never meant to kill you . . . . I love you.” A fresh investigation commenced with this new revelation, and the defendant was ultimately charged with murder and convicted. The defendant seeks a new trial. She argues the prosecution failed to timely disclose that the four human hairs found on the victim’s hand had been determined unsuitable for standard DNA testing. She seeks to compel another form of DNA testing. She also asserts that the twenty-six year delay in prosecution violated her right to due process because it was unreasonable and diminished her ability to present a defense. Additionally, she claims that the 4 main prosecution witnesses, including the woman who came forward to the cold-case investigator, were too “unreliable and incredible” to be allowed to testify. And, she contends the evidence was insufficient to sustain a conviction. We believe the defendant received a fair trial. The defendant could have sought DNA testing prior to trial but chose not to. Also, the defendant may still pursue specialized DNA testing in a postconviction proceeding pursuant to Iowa Code sections 81.10 and 81.11. On the matter of delayed prosecution, we find no actual prejudice to the defendant’s ability to make her case and no bad faith on the part of the prosecution. Finally, the district court did not err in allowing the jury to scrutinize the credibility of witnesses, and there was sufficient evidence for the jury to find the defendant guilty of second-degree murder. For these reasons and those that follow, we affirm the defendant’s conviction and sentence and the decision of the court of appeals.",introduction
+255,885035,1,2,"¶ 14 Prior to accepting a guilty plea, the trial court must satisfy the statutory requirements set forth at §§ 46-12-210 and 46-16-105, MCA. Because a defendant waives numerous constitutional rights when pleading guilty, it is a well-settled legal principle that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant. State v. Bowley (1997), 282 Mont. 298, 304, 938 P.2d 592, 595 (citing State v. Radi (1991), 250 Mont. 155, 159, 818 P.2d 1203, 1206). ¶ 15 The trial court may permit the plea of guilty to be withdrawn, at any time before or after judgment, for good cause shown. Section 46-16-105(2), MCA. In determining whether to allow a defendant to withdraw a guilty plea, the court must consider each case in light of its own unique record. Bowley, 282 Mont. at 304, 938 P.2d at 595 (citing State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177). However, all doubt should be resolved in favor of a trial on the merits. . . . State v. Schaff, 1998 MT 104, ¶ 16, 288 Mont. 421, ¶ 16, 958 P.2d 682, ¶ 16 (citing State v. McAllister (1934), 96 Mont. 348, 353, 30 P.2d 821, 823; State v. Enoch (1994), 269 Mont. 8, 18, 887 P.2d 175, 181). The court will permit a change of plea if it fairly appears that the defendant was in ignorance of his rights and of the consequences of his act. . . . Schaff, ¶ 17 (citing McAllister, 96 Mont. at 353, 30 P.2d at 823). ¶ 16 Our standard for reviewing a district court's denial of a motion to withdraw a guilty plea is whether the district court abused its discretion. Bowley, 282 Mont. at 304, 938 P.2d at 595. In determining whether a district court abused its discretion, we consider three factors: (1) the adequacy of the court's interrogation at the time the plea was entered regarding the defendant's understanding of the consequences of the plea; (2) the promptness with which the defendant attempts to withdraw the plea; and (3) the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge. Bowley, 282 Mont. at 304, 938 P.2d at 595.",standard of review
+256,1119601,1,1,The Division phrases the issue as follows: The Medical Commission decided the contested case in an expedited proceeding according to its Rules. The Employee did not object. A. Was the Medical Commission's decision within its statutory authority? Appellee Shawn Wright (Wright) divides this issue into three parts: 1. Did the Medical Commission exceed its jurisdiction and authority by failing to adhere to the contested case procedures mandated under the Wyoming Administrative Procedure Act? 2. Does the Medical Commission have statutory authority to convert a trial-type contested case hearing into an expedited proceeding? 3. Does the Medical Commission have jurisdiction to prospectively deny claims for workers' compensation benefits?,issues
+257,2831983,1,5,"The judgment of the superior court is AFFIRMED. 53 (...continued) Enterprises and Friesen. Giving due deference to the superior court’s closer view of the attorneys, their work, and its significance in the litigation, we see no abuse of discretion in the court’s failure to reduce the fees claimed for this activity. 54 Okagawa v. Yaple, 234 P.3d 1278, 1282 (Alaska 2010). Cf. Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008) (stating “that whether [defendant] spent more on her defense than the amount in controversy is not dispositive” when determining whether attorney’s fees award should be reduced). 55 Friesen includes a challenge to the superior court’s prevailing party determination in the appellants’ statement of issues presented for review, but it is not addressed in his argument, and we therefore consider it waived. See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991) (“[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal.”). - 23 - 7042",conclusion
+258,4543517,1,5,"¶41 In considering federal law questions, the Supremacy Clause requires this Court adhere to decisions of the United States Supreme Court. We have previously declared unconstitutional various initiative petitions and state laws that infringed upon rights the United States Supreme Court has expressly determined are guaranteed by the United States Constitution. We have also followed United States Supreme Court precedent on federal questions in diverse areas such as Indian law and application of the Commerce Clause. However, the United States Supreme Court has never addressed preemption of state marijuana laws under federal statutes such as the CSA. ¶42 Petitioner argues that this uncertainty concerning federal preemption of state marijuana regulations compels this Court to declare SQ 807 unconstitutional. The opposite is true. The burden is on a protestant to demonstrate that a proposed initiative is clearly and manifestly unconstitutional on its face. In re: Initiative Petition No. 420 , 2020 OK 9 at ¶14. ¶43 This Court acknowledges the lack of controlling federal precedent has created uncertainty concerning the interplay between state regulatory schemes permitting marijuana use and existing federal law. The people of Oklahoma have spoken once on this interplay between state regulations and existing federal law in the approval and implementation of SQ 788, Oklahoma's legalization of medical marijuana. We have confronted that uncertainty, and considered the question in depth by examining the parameters of SQ 807, the language of federal statutes such as the CSA, and principles of preemption under the Supremacy Clause. Based on the above analysis, Petitioner has failed to meet his burden of demonstrating that SQ 807 is clearly or manifestly unconstitutional. We hold therefore that State Question No. 807, Initiative Petition No. 423, is legally sufficient for submission to the people of Oklahoma. STATE QUESTION NO. 807, INITIATIVE PETITION NO. 423 IS LEGALLY SUFFICIENT FOR SUBMISSION TO THE PEOPLE OF OKLAHOMA ¶44 Gurich, C.J., Kauger, Winchester, Edmondson and Combs, JJ., concur; ¶45 Darby, V.C.J., Kane (by separate writing) and Rowe (by separate writing) , JJ., dissent; ¶46 Colbert, J., not participating.",conclusion
+259,1859698,1,1,"¶ 2. Since at least 1962, the Mississippi Department of Health, through various agencies including the Division of Radiological Health, has regulated sources of radiation. In 1995, the Mississippi Legislature passed a number of statutory changes to address the problem of oil field NORM which arises as a byproduct of oil exploration & production. Through these changes, the Legislature made the regulation of NORM the exclusive province of the State Oil and Gas Board: Notwithstanding any other provision contained in the Laws of the State of Mississippi, the Board shall have exclusive jurisdiction and authority, and it shall be its duty, to make, after notice and hearings as hereinafter provided, such reasonable rules, regulations, standards and orders, and to issue such permits as may be necessary, to regulate the use, management, manufacture, production, ownership, investigation and non-commercial disposal of oilfield exploration and productive wastes in order to prevent, eliminate or reduce waste by pollution to acceptable levels in order to protect the public health, safety and the environment. Miss.Code Ann § 53-1-17(7) (1999). The Legislature amended the definition of oilfield exploration and production wastes to include naturally occurring radioactive... substance. Miss.Code Ann. § 53-1-3(t)(i) (1999). Rule 69 was promulgated pursuant to the legislative mandate codified at Miss.Code Ann. § 53-1-17(7). ¶ 3. From the end of August through the beginning of September of 1995, the Board provided public notice that a hearing would be conducted to discuss the regulation of NORM. The hearing was postponed and ultimately held April 2-4, 1996. In the interim, the Board conducted exploratory committee meetings to investigate the various concerns surrounding oil field NORM. This rulemaking process consisted mainly of consultations with Carol D. Berger, an expert in the field, and with the Department of Health. Through this process, the Board drafted a proposed rule to address the regulation of NORM. ¶ 4. At the public hearing, the Board received arguments and opinions from representatives of the oil industry as well as from landowners and others with environmental concerns. Representatives of various oil and gas industry organizations and corporations appeared at the hearings and encouraged the Board to adopt a Rule that was less stringent than the one that had been proposed because they believed a less stringent rule would still be fully protective of public health and the environment. Representatives of various landowners and other interested parties appeared before the Board and argued that the Board should adopt a rule more stringent than the one proposed; they believed that Rule 69 as proposed by the Board would not adequately protect the public health and environment. After considering the testimony of a number of experts, the Board passed an order adopting the present form of Rule 69 regulating the handling, dispersion, and other disposition of oil field NORM. ¶ 5. Aggrieved by the chancery court's denial of the relief requested, the appellants appeal to this Court and assign the following issues as error: I. WHETHER THE PROMULGATION OF RULE 69 WAS ARBITRARY AND CAPRICIOUS BECAUSE IT WOULD CAUSE THE VIOLATION OF FEDERAL LAW, AS SET FORTH IN THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT (CERCLA); THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA); AND THE OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA). II. WHETHER THE PROMULGATION OF RULE 69 WAS ARBITRARY AND CAPRICIOUS BECAUSE THE ASSUMPTIONS UPON WHICH IT IS BASED ARE INVALID. III. WHETHER RULE 69 SHOULD BE DECLARED INVALID BECAUSE THE RULEMAKING PROCESS WAS TAINTED BY EX PARTE CONTACTS. IV. WHETHER DURING THE RULEMAKING PROCESS THAT CULMINATED IN THE PROMULGATION OF RULE 69, APPELLANTS WERE DEPRIVED OF THEIR DUE PROCESS RIGHTS. V. WHETHER THE PROMULGATION OF RULE 69 WAS PROCEDURALLY DEFECTIVE BECAUSE THE BOARD NEITHER SOUGHT NOR RECEIVED THE APPROVAL OF THE MISSISSIPPI COMMISSION ON ENVIRONMENTAL QUALITY BEFORE PROMULGATING THE RULE.",facts
+260,6500176,1,4,"[1] 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 - 651 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. GARCIA Cite as 311 Neb. 648 evidence; such matters are for the finder of fact. 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 [2] Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court’s decision. 3",standard of review
+261,2516473,1,2,"We review [a] circuit court's award of summary judgment de novo under the same standard applied by the circuit court. Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 104, 839 P.2d 10, 22, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992) (citation omitted). As we have often articulated: [s]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id. (citations and internal quotation marks omitted); see Hawai`i Rules of Civil Procedure (HRCP) Rule 56(c) (1990). A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982) (citations omitted). Konno v. County of Hawai`i, 85 Hawai`i 61, 70, 937 P.2d 397, 406 (1997) (quoting Dunlea v. Dappen, 83 Hawai`i 28, 36, 924 P.2d 196, 204 (1996)) (brackets in original). In addition, [t]he evidence must be viewed in the light most favorable to the non-moving party. State ex rel. Bronster v. Yoshina, 84 Hawai`i 179, 186, 932 P.2d 316, 323 (1997) (citing Maguire v. Hilton Hotels Corp., 79 Hawai`i 110, 112, 899 P.2d 393, 395 (1995)). In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to [the party opposing the motion]. Maguire, 79 Hawai`i at 112, 899 P.2d at 395 (citation omitted). State Farm Mut. Auto Ins. Co. v. Murata, 88 Hawai`i 284, 287-88, 965 P.2d 1284, 1287-88 (1998) (quoting Estate of Doe v. Paul Revere Ins. Group, 86 Hawai`i 262, 269-70, 948 P.2d 1103, 1110-11 (1997)) (some brackets in original and some added). TSA Int'l, Ltd. v. Shimizu, 92 Hawai`i 243, 251-53, 990 P.2d 713, 721-23 (1999).",standard of review
+262,1249708,1,3,"Appellants' attempt to secure personal jurisdiction over State Farm failed. The private investigator's initial substituted service delivery to the Insurance Commissioner was ineffective. From the record, there was no evidence that the investigator was appointed to serve process. In addition, appellants' unsuccessful attempts at substituted service under the Wyoming Insurance Code, Wyo. Stat. § 26-3-122, did not show strict compliance. State Farm's due process right to notice required that appellants perform the tasks assigned by law. While the dismissal of an action is a harsh remedy, it is necessary when the court lacks personal jurisdiction. Reversed with orders to the district court to dismiss for lack of personal jurisdiction.",conclusion
+263,2352091,1,1,"A Jefferson Circuit Court jury found Appellant guilty of Murder, First-Degree Robbery, and First-Degree Burglary, and recommended that Appellant serve concurrent prison sentences totaling thirty (30) years. The trial court entered judgment in accordance with the jury's verdict, and Appellant thus appeals to this Court as a matter-of-right. [1] After oral argument and a review of the record, we reverse the judgment of the Jefferson Circuit Court and remand this case for a new trial because the trial court erred when it: (1) prohibited Appellant from introducing evidence concerning the circumstances under which Appellant made his incriminating statements; and (2) failed to instruct the jury as to the law of voluntary intoxication and lesser-included criminal homicide offenses justified by the evidence.",introduction
+264,2514192,1,1,[¶ 2] Young presents this sole issue for our review: 1. Did the District Court commit reversible error by barring the sworn statement of Travis Kidd to be admitted into evidence as an exception to the hearsay rule? HAC believes the issue is: Is a sworn statement by an assailant admissible in its entirety under W.R.E. 804(b)(3) or W.R.E. 804(b)(6) when that assailant has already been sentenced for the assault and when the party taking the statement intentionally chooses not to preserve the assailant's testimony for trial through a deposition?,issues
+265,2137618,1,1,"The Taylor Law (Civil Service Law § 200 et seq. ) requires public employers to bargain in good faith concerning all terms and conditions of employment ( Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480, 485, supra; see also, Civil Service Law §§ 202, 203, 204 [1]). As we have time and again underscored, the public policy of this State in favor of collective bargaining is strong and sweeping ( see, e.g., Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 667; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778). The presumption in favor of bargaining may be overcome only in special circumstances where the legislative intent to remove the issue from mandatory bargaining is plain and clear ( Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., supra, at 486), or where a specific statutory directive leaves no room for negotiation ( Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., supra, at 667). To be sure, where a statute clearly forecloses negotiation of a particular subject, that subject may be deemed a prohibited subject of bargaining ( see, Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., supra, at 667; see also, Matter of Cohoes City School Dist. v Cohoes Teachers Assn., supra, at 778 [school board's authority to make tenure decisions was prohibited subject of negotiation]). [1] Alternatively, if the Legislature has manifested an intention to commit a matter to the discretion of the public employer, negotiation is permissive but not mandatory ( Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., supra, at 669; see also, Matter of Burke v Bowen, 40 NY2d 264, 267 [job security provision held permissive subject of negotiation]). Generally, however, bargaining is mandatory even for a subject treated by statute unless the statute `clearly preempt[s] the entire subject matter'  or the demand to bargain `diminish[es] or merely restate[s] the statutory benefits' (Lefkowitz, Osterman and Townley, Public Sector Labor and Employment Law, at 498 [2d ed 1998], quoting Matter of City of Rochester [Rochester Police Locust Club], 12 PERB ¶ 3010). Absent clear evidence that the Legislature intended otherwise, the presumption is that all terms and conditions of employment are subject to mandatory bargaining ( see, Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., supra, at 670). Applying these well-settled principles, we conclude that the procedures for contesting the City's determinations under section 207-c are a mandatory subject of bargaining. Section 207-c, enacted in 1961, provides continued wages for police officers who suffer illness or injury in the course of their employment. That section was intended to compensate police officers for job-related injury or illness, in consideration for the hazardous conditions under which they serve ( see, Delanoy Letter, Rules Committee Report, Bill Jacket, L 1961, ch 920). Cognizant, however, of the financial burdens faced by municipalities, the Legislature provided that disabled officers who are capable of performing light police duty must do so, or else forfeit their statutory benefits ( see, General Municipal Law § 207-c [3]). Specifically, section 207-c gives the City the right to appoint a physician to examine a sick or injured officer, to prescribe and provide medical or surgical treatment if indicated, and to issue an initial back-to-work order if the physician concludes that the officer is capable of performing regular or light duty ( see, General Municipal Law § 207-c [1], [3]). In Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd. ( supra, 85 NY2d 480, 484-487), we concluded that subjects specifically covered by section 207-c are not mandatorily negotiable. The Court held that bargaining was not required regarding the City's ability to issue an initial order that a police officer assume a light duty position—a right clearly given to the City by section 207-c (3). Further, we held that the City could order a disabled officer to submit to surgery—once again, an area covered in detail by section 207-c (1), which specifically authorizes the City to appoint any physician to examine a sick or injured officer and, further, to provide medical, surgical or other treatment as the physician sees fit. Finally, we held that the City could require an officer to execute a medical confidentiality waiver form concerning the officer's medical condition, which plainly falls within the scope of the provisions allowing the City to examine an officer. Indeed, it would be impossible to conduct an effective medical examination absent a confidentiality waiver. We noted, however, that the City could not require an officer to execute a general confidentiality waiver, but only such a waiver as necessary to permit the City to determine the officer's medical problem and its relationship to his or her duties ( id., at 487; see also, Matter of DePoalo v County of Schenectady, 85 NY2d 527 [City may require officer to submit to medical examination before collecting benefits under section 207-c]). Further, construing section 207-c, we were careful to note in Schenectady that the City's right to take these initial steps was a separate question from the procedures to be followed should an officer contest the City's initial determination. Indeed, we explicitly carved those procedures out of our holding: Finally, it should be clear that the procedures for implementation of the requirements of General Municipal Law § 207-c are not before us. Those procedures may or may not be subject to bargaining. For example, no reason has been shown here why officers should not be permitted the opportunity to obtain and have considered the views of their personal physicians as to surgery ( Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., supra, at 487). We had good reason to recognize this critical statutory distinction in Schenectady. Unlike the initial determinations themselves, the text of section 207-c says nothing about the procedures for contesting those determinations. The Legislature expressed no intent—let alone the required plain or clear intent—to remove the review procedures from mandatory bargaining. Thus, under our precedents, the strong and sweeping presumption in favor of bargaining applies. Our conclusion is additionally supported by the legislative history of section 207-c. During the legislative debates, advocates for both sides lobbied hard for their positions: police unions argued that officers deserved compensation for injuries sustained in the course of their dangerous work, and municipalities argued that extending full salary and wages to injured officers would have undue financial consequences ( see generally, Bill Jacket, L 1961, ch 920). The Legislature compromised, extending salary and wages to disabled officers, but giving the City authority to conduct medical evaluations of officers in order to determine who can, and cannot, return to work. Section 207-c—the product of that legislative compromise—gave both the officers and the municipalities specific rights, as detailed above. As we held in Schenectady, the rights given to the City by statute are outside the purview of mandatory collective bargaining; however, no such statutory exemption applies to those matters not covered by the statute—including the procedures at issue here. Because section 207-c does not remove the review procedures from the scope of collective bargaining, bargaining is mandatory if the procedures qualify as a term and condition of employment. PERB, as the agency charged with interpreting the Civil Service Law, is accorded deference in matters falling within its area of expertise ( Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., supra, 75 NY2d, at 666). Whether a dispute involves a term and condition of employment is generally committed to PERB's discretion, and we may not disturb PERB's determination unless the agency's ruling is irrational ( see, id., at 670-671). Here, there is no basis to disturb PERB's determination that the grievance procedures are a term and condition of employment. PERB's finding fell well within the definition of terms and conditions adopted by this Court, in connection with the broad public policy favoring collective bargaining ( see, e.g., Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315, 321-322 [issue of smoking ban on school buses subject to mandatory bargaining, because Public Health Law contained no explicit or implied prohibition against smoking]; Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., supra, 75 NY2d, at 670-671 [employee disclosure requirements held mandatory subject of negotiation]). Indeed, grievance and arbitration procedures have been clearly recognized as terms and conditions of employment subject to mandatory bargaining (Lefkowitz, Osterman and Townley, Public Sector Labor and Employment Law, supra, at 477). Applying these principles, the lower courts and PERB have consistently held that matters related to section 207-c, but not specifically covered by the statute, are mandatory subjects of bargaining, reading the law as we do ( see, Matter of Town of Carmel v Public Empl. Relations Bd., 246 AD2d 791, 792-793 [hazardous duty pay for light duty officers held mandatory subject of negotiation] [citing Schenectady ]; City of Newburgh [Public Empl. Relations Bd.], 19 PERB ¶ 7005 [Sup Ct, Albany County] [demand for benefits broader than those provided in section 207-c was mandatory subject of negotiation]; Matter of New York State Fedn. of Police [Town of Cortlandt], 30 PERB ¶ 3031 [PERB] [procedures for implementing section 207-c were mandatory subject of negotiation] [citing Schenectady ]; Matter of City of Schenectady [Schenectady Patrolmen's Benevolent Assn. ], 19 PERB ¶ 3051 [PERB] [same]; see also, Matter of Local 589, Intl. Assn. of Firefighters v City of Newburgh, 17 PERB ¶ 7506 [Sup Ct, Orange County] [procedures to implement section 207-a were mandatory subject of negotiation]). PERB's ruling in the case at hand was consistent with these precedents. Matter of Chalachan v City of Binghamton (55 NY2d 989) is not to the contrary. In Chalachan, disabled firefighters argued that they were entitled to paid vacation time as well as the salary and wages provided by section 207-a. We held that neither the statutory language, nor the specific collective bargaining agreement at issue, entitled the firefighters to vacation pay. While we noted in Chalachan that disabled and light-duty firefighters continue to receive full wages strictly [as] a matter of statutory right, we also recognized that they retained a continued status as employees ( id., at 990). In fact, Chalachan affirmed the importance of collective bargaining by holding that the firefighters' entitlement to vacation pay—a matter not covered by the statute—was governed by the language of the collective bargaining agreement ( see also, Matter of Barnes [Council 82], 94 NY2d 719 [decided today] [police officer's challenge to section 207-c determination not arbitrable where officer failed to follow procedures provided in collective bargaining agreement]; Matter of Uniform Firefighters v City of Cohoes, 94 NY2d 686 [decided today] [firefighters who submitted evidence contesting City's section 207-a determination entitled to due process hearing, but not arbitration, where arbitration was not provided by collective bargaining agreement]). The narrow question in the instant case—whether the procedures for reviewing section 207-c determinations are subject to mandatory bargaining—was not at issue in Chalachan. Turning next to the dissent, there is no support for either of its premises, however often repeated. The dissent insists, first, that section 207-c represents a wholesale, unequivocal grant of unrestricted authority to municipalities. That premise is not supported by the statute. Section 207-c, in fact, was a legislative compromise that gave certain rights to employees and other rights to municipalities. As we held in Schenectady, the rights explicitly given to the City by the statute are outside the scope of mandatory bargaining. But in Schenectady we also unanimously recognized a distinction between initial determinations and other matters. The statute does not remove from mandatory bargaining those other matters—such as review procedures—that the Legislature chose not to address. Rather, as to those matters, the strong and sweeping presumption in favor of mandatory bargaining applies. Moreover, the reliance on Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd. (66 NY2d 722) is plainly misplaced ( see, dissenting opn, at 91). In Mamaroneck, we held that police officers' statutory seniority rights under Town Law § 153 may not be taken away by collective bargaining—a decision not at all related to the question here. Indeed, it is ironic that the dissent cites Mamaroneck —which safeguarded the seniority rights of police officers—in support of its argument that the City may deprive officers of their statutory right to light duty and disability pay, and need not even negotiate an effective review procedure. The dissent's second premise is equally empty. Our holding today in no way diminishes the City's right to make initial determinations under section 207-c, as recognized in Schenectady, or the City's right to conduct an initial medical examination, as recognized in DePoalo. No one disputes the City's right to make the initial determination as to whether an officer has been injured in the line of duty, to have a physician of its choosing examine the injured officer, to prescribe medical or surgical treatment indicated by its examination, to order any officer it deems capable back to work and to discontinue benefits if an officer ignores a back-to-work order. These are significant rights. Indeed, these rights give the City a distinct advantage over the officer, because the City has the discretion to set the criteria upon which these decisions will be made and to enter a final, binding order. The only question before us is what happens when an officer raises a genuine dispute concerning the City's determination. If the City, for example, orders an officer to undergo surgery (as is its right), the officer may wish to have the opinion of a personal physician considered, pursuant to a negotiated procedure, before submitting to the knife. As we noted in Schenectady, section 207-c does not mandate the procedures to be followed in such a situation. Rather, those procedures have been left by the Legislature to the arena of collective bargaining. [2] There is, moreover, no merit to the dissent's argument that, if section 207-c disputes are submitted to arbitration, arbitrators will ignore our decisional law and inflict a legislatively unintended impact on the municipal purse ( see, dissenting opn, at 89). [3] Rather, if the result of negotiation is that—as the union asks—section 207-c disputes are submitted to arbitration, arbitrators would resolve disputes where an employee submits evidence that the City's determination in a specific case was not in accord with the facts. Such disputes are commonplace regarding any employee right or benefit, as the Legislature surely knew when it enacted section 207-c. Yet the Legislature said nothing about the procedures for resolving section 207-c disputes. Thus, since there is no plain and clear evidence that the Legislature intended otherwise, the grievance procedures for resolving section 207-c disputes must be determined—just as any other grievance procedures are determined—through the collective bargaining process. Accordingly, the order of the Appellate Division should be reversed, with costs, and the City's petition dismissed. BELLACOSA, J. (concurring). While I agree fully with the cogent opinion of the Chief Judge for the Court, I consider it necessary to add a brief explanation of my vote and reason for taking separate issue with the dissenting opinion. I am concerned about the breadth of the dissent's interpretation of this Court's precedential developments affecting this area of the law, and its implication—an inference I derive from some of its articulation—relative to arbitration as a method of dispute resolution. Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd. (85 NY2d 480) is manifestly central to this case and pivotal to the differing views of the members of the Court. I was and remain acutely aware of the precise limitations of the holding and practical implications of that case, especially to the extent that I took issue in my dissenting opinion there ( id., at 487-492). The interpretive sweep and values expressed in the dissenting opinion today, as to the scope and meaning of the Schenectady rationale, would likely have evoked more expansive explication in both those opinions, had this extended application been contemplated. Thus, I gauge a need to underscore the narrower range and interpretive quality that I ascribe to Schenectady and related precedents than the dissenting opinion is willing to accept. On this point, I am persuaded that the opinion of the Chief Judge for the Court, which I join, introduces no departure from settled law, from the careful holdings of the Court's prior cases, nor from the sense of calibrated allocation of the power distribution equations among various municipal labor-management transactors. Rather, the extra leverage beyond this Court's carefully limned precedents is, ironically, reflected in the dissenting opinion's expression of the jurisprudence and governing standards. Its proffered point of view seems to rest significantly on differing policy impressions, extrapolated out of its sense of practical operational consequences from the precedential and statutory sources. I believe that the precedents and statutes ought to regulate explicitly in this contentious legal arena. The dissenting opinion, moreover, casts something of a cloud over the legitimacy of the arbitration method for resolving disputes of this kind, despite the disclaimers. Legislative enactments, to be sure, offer some balanced protections to municipalities in this area and they are coupled with this Court's careful and limited approbation of those nuanced mandates as reflected in the Schenectady (supra ) and DePoalo (Matter of DePoalo v County of Schenectady, 85 NY2d 527) decisions. However, I do not think it prudent or called for in this case to suggest doubt as to the practical efficacy of the arbitration forum or mode of dispute resolution, as such. The mandate pertains to the collective bargaining process, not, as referred to in the dissent, to the arbitration clause and remedy that may emerge as part of a voluntarily negotiated agreement among the parties. Finally, the very real leadership role of this Court, with respect to arbitration as a valuable method of dispute resolution, should not be doubted or diminished even by implication ( see, e.g., Marchant v Mead-Morrison Mfg. Co., 252 NY 284; Matter of Weinrott [Carp], 32 NY2d 190; see also, Mount St. Mary's Hosp. v Catherwood, 26 NY2d 493; Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 49-50). ROSENBLATT, J. (dissenting). In our view, the majority's position is incompatible with both the legislative design of General Municipal Law § 207-c and this Court's decisional law. Accordingly, we respectfully dissent.
+Steadfastly, the Court has supported the authority of municipalities to make independent determinations regarding initial and continued eligibility for disability benefits under General Municipal Law § 207-c. In Matter of DePoalo v County of Schenectady (85 NY2d 527), the Court read the plain wording of section 207-c as authorizing a municipality to withhold a police officer's disability benefits pending its own independent determination of eligibility. Similarly, in Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd. (85 NY2d 480), the Court held that under section 207-c a municipality could, among other things, unilaterally compel eligible police officers receiving disability benefits to return to light duty work. In both cases, the municipality's right to make section 207-c eligibility determinations was held not subject to mandatory bargaining under the Taylor Law. The majority has determined that subjecting the PBA proposal to mandatory bargaining is consistent with these holdings. As we see it, however, the majority has now with one hand supported a municipality's authority to make eligibility determinations, but with the other hand effectively taken it away. Nothing in the legislation or decisional law justifies that result.
+The majority casts its decision as an answer to the question left open in Schenectady: whether the procedures for implementation of the requirements of General Municipal Law § 207-c [are] subject to bargaining (85 NY2d, at 487, supra ). By divesting municipalities and ultimately the courts of final decision-making authority, the PBA proposal does not, in our opinion, fall within the realm of procedure. Amicus curiae, New York State Conference of Mayors and Municipal Officials, has urged this Court to answer this question in the negative and declare that the proposal is not subject to bargaining at all. They assert that the statute and its underlying public policy preclude a municipality from ever voluntarily agreeing to submit § 207-c eligibility determinations to arbitration. Rejecting this position, the majority holds not only that a municipality may bargain the proposal, but that it must. We think this goes too far. We recognize, of course, that [t]he obligation under the Taylor Law to bargain as to all terms and conditions of employment is a `strong and sweeping policy of the State' ( see, Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 667, quoting Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778). As the majority notes, however, the Taylor Law's requirement that terms and conditions of employment be negotiated is not absolute. Such terms and conditions are not proper subjects for mandatory bargaining when antithetical to statutory (or equally compelling) requirements ( see, Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, 372-373). The policy in favor of negotiation must give way to a clear and plain contrary legislative intent or a statute that evinces the Legislature's inescapably implicit design to remove a subject from mandatory negotiation ( see, Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480, 486, supra ). That design is present in the case before us. The PBA proposal reads as follows: ARTICLE 14, SECTION 12—MISCELLANEOUS PROVISION—The PBA is not seeking to divest any (purported statutory) right the City may have under [General Municipal Law §] 207 (c) to initially determine whether the officer was either injured in the line of duty or taken sick as a result of the performance of duty, but rather, the PBA seeks to negotiate the forum—and procedures associated therewith—through which disputes related to such determinations are processed, to wit: should the officer disagree with the City's conclusion, the PBA proposes the expeditious processing of all disputes related thereto to final and binding arbitration pursuant to PERB's Voluntary Disputes Resolution Procedure. (Emphasis added.) The proposal purports to relate only to the procedures used to review a municipality's section 207-c initial eligibility determinations, and not to the determinations themselves. It begins by stating that [t]he PBA is not seeking to divest any (purported statutory) right the City may have under [the statute] to initially determine whether an officer was either injured in the line of duty or taken sick as the result of the performance of duty. This, however, merely recognizes the holding in Matter of DePoalo v County of Schenectady (85 NY2d 527, supra ). In its next segment, the proposal seeks to negotiate the forum—and procedures associated therewith— for the resolution of disputes relating to those initial determinations. Lastly, it provides, flat out, that disagreements over the municipality's conclusions as to whether an officer was either injured in the line of duty or taken sick as a result of the performance of duty must be submitted to arbitration. The practical effect of the proposal is evident. The municipality's initial determination must be submitted to an arbitrator who would be entirely free to follow or overturn the municipality's determination. The arbitrator would not be bound by the decisional law protecting, both substantively and procedurally, the prerogatives of municipalities in determining eligibility for these statutory entitlements. Mandatory bargaining of the proposal before us would, in practice, negate the holdings in both DePoalo and Schenectady. In the end—and that is where it counts—a municipality's initial determination would be a matter of no consequence. Indeed, the City has forecasted the sequence of events: The PBA and the City would be required to negotiate the PBA's proposal. Upon the parties' inability to agree, an impasse will be declared, requiring the PBA and the City to submit that issue to compulsory interest arbitration before PERB ( see, Civil Service Law § 209 [4] [c]). A PERB arbitration panel will then decide whether the City is to have its eligibility determinations reviewed through arbitration. We do not believe the Legislature intended this result.
+The legislative history of section 207-c reflects the Legislature's attempt to balance two competing interests. On one side, municipalities were apprehensive about the fiscal ramifications of extending disability benefits to a group of public employees besides fire fighters (who had been receiving similar benefits for nearly 20 years). [1] On the other side, police officers (who, like fire fighters, are exposed to uncommonly serious hazards in their public jobs) understandably sought to gain similar entitlements. [2] The Governor conditioned his approval on the inclusion of certain measures, among them light duty and medical treatment requirements, as well as other provisions dealing with termination of benefits. These provisions addressed the municipalities' fears born of their experiences in implementing section 207-a—the companion provision for fire fighters ( see, Governor's Approval Memorandum, 1961 McKinney's Session Laws of NY, at 2141). The Governor's Approval Memorandum underscores the municipality's prerogative for making eligibility determinations. In our view, the majority ruling opens the door to a legislatively unintended impact on the municipal purse. The majority states that its holding in no way diminishes the City's right to make initial determinations under section 207-c and that municipalities will continue to have the authority to issue final and binding orders (majority opn, at 84). This provides little comfort to municipalities. The power to make initial determinations and issue final and binding orders is hollow when the power to make the ultimate determinations is taken away. Moreover, under PERB's rationale, the mechanism for resolving all disputes related to section 207-c eligibility would constitute a term or condition of employment. Thus, the supposedly impregnable significant rights (majority opn, at 84) we granted municipalities in the eligibility-related disputes of our previous cases would themselves be subject to arbitration. The majority asserts that because section 207-c is silent as to the procedures for contesting a municipality's eligibility determinations, it must then be subject to mandatory bargaining (majority opn, at 81). We disagree with this analysis. It rests on the premise that the Legislature contemplated that the municipality would have the sole power to make the initial eligibility or disqualification decision, only to have it reviewed and ultimately decided by other non-judicial means. Nothing in the statute or decisional law supports that premise. Sections 207-a and 207-c do not mention initial decisions by the municipality. They speak of municipal authority in absolute terms—language that formed the very basis for the Court's holding in Schenectady (85 NY2d 480, supra ). Ordinarily, when a statute gives a governmental entity unrestricted authority, any challenge must be resolved judicially, in accordance with CPLR article 78 ( see, Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757). The Legislature, we submit, did not intend or even contemplate that any gap in the final eligibility decision-making process be filled by arbitration, negotiation or any other nonjudicial dispute resolution mechanism.
+We also take issue with the majority's conclusion that PERB's finding fell well within the definition of terms and conditions of employment adopted by this Court (majority opn, at 82). PERB reasoned that because the statute imposes upon the municipality liability for the full amount of [an eligible firefighter's or police officer's] regular salary or wages (General Municipal Law §§ 207-a, 207-c), the benefits are themselves a form of wages. This is dubious. Normally, the scope of our review of matters within PERB's expertise, including the reach of mandatory bargaining, is limited ( see, Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42, 47-48; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50-51). When the dispute, however, centers on whether a municipality's implementation of a statute was the subject of mandatory bargaining, this Court has declared the issue one of statutory construction for a court's de novo review, warranting no special deference to PERB ( see, Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d, at 485, supra; Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., 75 NY2d 619, 626). This Court said as much in Schenectady, dealing with PERB's determination as to a municipality's implementation of General Municipal Law § 207-c (85 NY2d, at 485, supra ). As the case law recognizes, statutory beneficiaries may be eligible for benefits without having to work at all ( Matter of Chalachan v City of Binghamton, 55 NY2d 989, 990; see also, Benson v County of Nassau, 137 AD2d 642, 643; Phaneuf v City of Plattsburgh, 84 Misc 2d 70, 74-75, affd 50 AD2d 614). The dictionary meanings of wages and salary contradict PERB's conclusion, because both words are defined as payment or compensation for services (Webster's Collegiate Dictionary 1031 [salary], 1326 [wages] [10th ed]). Far from constituting a form of wages, benefits under the statutes are statutory entitlements. The payment amounts are simply tied to the wages or salary that the recipient would otherwise earn if not disabled ( see, Matter of Chalachan v City of Binghamton, supra ). Thus, in Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd. (66 NY2d 722), this Court rejected PERB's determination that, because a certain statutory entitlement was an aspect of wages, a dispute over the benefit was subject to mandatory collective bargaining.
+In cases involving prohibited subjects of collective bargaining, this Court has recognized a syllogism: When an issue is declared to be nonnegotiable, there can be no arbitration of disputes relating to the same issue. Thus, in Matter of Cohoes City School Dist. v Cohoes Teachers Assn. (40 NY2d 774, 777), the Court held that, because the subject of teacher tenure decisions is prohibited from collective bargaining, a school district may not agree to arbitrate disputes over those decisions. Again, in Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn. (49 NY2d 732), the Court held that because it is beyond the power of a school board to surrender through collective bargaining [decisions] [on] maintaining adequate standards in the classrooms    [a] fortiori, an express statutory direction related to maintenance of standards    may not be the subject of arbitration ( id., at 734). The majority's holding, however, would uncouple the syllogism and, in so doing, compromise the proper operation of section 207-c. In our view, the Court's decisional law does not support that approach. This Court has previously held that inasmuch as the Legislature intended to confer authority on the municipality to evaluate disabilities and determine their work-relatedness in sections 207-a and 207-c eligibility matters, those decisions were not subject to mandatory bargaining ( see, Matter of DePoalo v County of Schenectady, 85 NY2d 527, supra; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480, supra ). Inasmuch as the Legislature decreed that a municipality is relieved of any obligation to share that decision-making authority with its employees' representative through collective bargaining, it cannot have intended that the municipality then be required to negotiate whether to cede that very authority to an arbitrator.
+The majority's holding addresses matters beyond the scope of the PBA proposal itself. The proposal seeks only an arbitration agreement to have an arbitrator review and decide disagreements over a municipality's initial determination of whether a police officer was either injured in the line of duty or taken sick as a result of the performance of duty. The proposal has nothing to do with disagreements over determinations relating to eligibility for light duty, specific light duty assignments, or medical treatment. The majority nevertheless states that if, hypothetically, a municipality orders an officer to undergo surgery (as is its right), the officer may wish to have the opinion of a personal physician considered, pursuant to a negotiated procedure, before submitting to the knife (majority opn, at 84 [emphasis added]). The majority finds it of no significance that    an officer seeking to have a personal physician's opinion considered before submitting to surgery might be entitled to a due process hearing or article 78 review (majority opn, at 84, n 2 [emphasis added]). We left no doubt, however, on this point. We unanimously held today, in Matter of Uniform Firefighters v City of Cohoes (94 NY2d 686, 691), that the right of a disabled firefighter to receive General Municipal Law § 207-a disability payments is a property interest giving rise to procedural due process protection, under the Fourteenth Amendment. Thus, although section 207-c specifically authorizes municipalities to make eligibility determinations, applicants for disability benefits are still entitled to due process hearings. Accordingly, applicants have an opportunity to present their own evidence, including the opinions of their personal physicians. Moreover, if applicants are dissatisfied with the outcome of the hearing, judicial review through article 78 of the CPLR is available.
+Finally, our concurring colleague believes that we cast something of a cloud over the legitimacy of the arbitration method for resolving disputes of this kind (concurring opn, at 86). We need only provide our assurance—if indeed assurance is necessary—that we intend no such thing. We appreciate this Court's decisional law in advancing arbitration concepts under the Taylor Law and would not deny them their rightful place in the sun. We made this point most recently in Matter of Board of Educ. [Watertown Educ. Assn.], 93 NY2d 132, 142), when we revisited the public sector arbitration landscape and proclaimed that any antiarbitrational presumption this Court may have implied in its earlier writings is no longer justified either in law, or in the public sector labor environment. Our disagreement in the case before us stems merely from the forced imposition of bargaining in the face of what we perceive to be a contrary legislative design. Moreover, we note that of the four cases cited by our concurring colleague, none involves a municipality being compelled to surrender its decision-making authority regarding eligibility for statutory entitlements; indeed, three of the four involve private sector arbitration. Our concurring colleague refers to the leadership role of the Court in the field of arbitration. While we would not abjure such a mantle (particularly if bestowed upon us by outside scholars), it would not be at all threatened by mere fidelity to legislative intent. For these reasons we would affirm the order of the Appellate Division. Order reversed, etc.",analysis
+266,6500264,1,4,[1] The question of jurisdiction is a question of law. 1,standard of review
+267,2464109,1,1,"Appellants contend that the circuit court had no jurisdiction to enforce Hartford's statutory lien, and, therefore, the trial court erred in directing a verdict for Hartford against Daves. This point is meritless. Under the Arkansas Constitution, circuit courts have original jurisdiction in all cases where jurisdiction is not expressly vested in another court. Russell v. Cockrill, Judge, 211 Ark. 123, 199 S.W.2d 584 (1947). In order to successfully attack the circuit court's jurisdiction, a party must show that another court has been given exclusive jurisdiction of the subject matter. Id. Appellants have not cited any authority for the proposition that Hartford's action to enforce its statutory lien or subrogation rights and recover money damages is cognizable exclusively in equity. Furthermore, it is clear that Hartford's action is cognizable in law. First of all, it is well established that an action for money damages is cognizable in law. See Priddy v. Mayer Aviation, Inc., 260 Ark. 3, 537 S.W.2d 370 (1976). Secondly, this court has allowed statutory liens and subrogation rights to be enforced in circuit court. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987); Farm Bureau Mut. Ins. Co. v. Riverside Marine Remfg., 278 Ark. 585, 647 S.W.2d 462 (1983). This court has held that where a defendant raises a defense cognizable only in equity, the case must be heard in equity. See Poultry Growers v. Westark Prod. Credit, 246 Ark. 995, 440 S.W.2d 531 (1969). However, the doctrine of estoppel in pais is available both in law and equity. Branch v. Standard Title Co., 252 Ark. 737, 480 S.W.2d 568 (1972). See also United States Fire Ins. Co. v. Montgomery, 256 Ark. 1047, 511 S.W.2d 659 (1974). Estoppel in pais is the doctrine by which a person may be precluded by his acts or conduct or by failure to act or speak under circumstances where he should do so, from asserting a right which he otherwise would have had. See Branch, supra . Appellants, in their answer, asserted that Hartford had waived its subrogation rights by not taking steps to procure protection of those rights during the litigation between Daves and Breyel and that Hartford was estopped from bringing any claim for its subrogation interest in that Hartford informed Daves that its interest had been paid by Sentry, prior to the conclusion of the litigation. This is essentially an estoppel in pais argument, which is cognizable in law.",jurisdiction
+268,3006521,1,3,"¶ 17 We address each of Mr. Bond’s arguments in turn. We first consider his claim of prosecutorial misconduct. We then turn 5 Cite as: 2015 UT 88 Opinion of the Court to his argument under the Confrontation Clause. Finally, we address his claim based on the merger doctrine. We conclude that each of Mr. Bond’s arguments fails, and we accordingly affirm his convictions.
+DISCRETION IN DENYING MR. BOND’S MOTION FOR MISTRIAL ¶ 18 Prior to Mr. Bond’s trial, Mr. Rettig pled guilty to aggravated kidnapping and aggravated murder for his participation in the crime. During trial, the prosecutor called Mr. Rettig as a witness against Mr. Bond. On the first day of questioning, Mr. Rettig answered some questions, admitting he had planned to meet up with Mr. Bond on the day of the murder. But when the prosecutor asked what happened after Mr. Rettig and Mr. Bond met, Mr. Rettig refused to answer the question or to testify further. Outside the presence of the jury, the trial court advised Mr. Rettig that he had already waived his right against self-incrimination and was under subpoena to testify. The court ordered Mr. Rettig to testify. He refused and was dismissed as a witness. ¶ 19 The next day, the prosecutor requested that Mr. Rettig be called again and indicated that the State would grant him use immunity. Defense counsel, as well as Mr. Rettig’s own attorney, appear to have fairly protested, arguing that use immunity would not protect Mr. Rettig from possible federal prosecution. Mr. Rettig’s attorney apparently informed the trial court that Mr. Rettig intended to invoke his Fifth Amendment privilege against self-incrimination despite the promise of immunity. The court granted the prosecutor’s request to call Mr. Rettig, but proceeded with initial questioning outside the presence of the jury. On the stand, Mr. Rettig answered the State’s initial questions. Because Mr. Rettig was consistently answering, the court brought the jury back into the courtroom and allowed questioning to continue in its presence. ¶ 20 The trial court also granted the prosecution leave to treat Mr. Rettig as a hostile witness and pose leading questions. Mr. Rettig responded to a number of the prosecutor’s initial leading questions. But when the prosecutor asked more detailed 6 STATE v. BOND Opinion of the Court questions about the crimes, Mr. Rettig again refused to answer and cited his Fifth Amendment privilege.3 ¶ 21 Shortly afterwards, and outside of the jury’s and Mr. Rettig’s presence, Mr. Bond moved for mistrial based on Mr. Rettig’s invocation of his Fifth Amendment privilege before the jury. He alleged that the prosecutor had improperly placed Mr. Rettig on the stand “for the purpose of impressing upon the jury the fact that the privilege [was] being claimed.” The trial court denied the motion, ruling that the immunity agreement was “a change in the playing field . . . that justified re-inquiring with Mr. Rettig as to his status and his willingness to testify.” The prosecutor also offered to strike the leading questions, but the court declined to strike them, reasoning that the questions themselves were not actually evidence. Instead, on agreement of the parties, the court offered a curative instruction to the jury prohibiting it from considering the claim of privilege. ¶ 22 On appeal, Mr. Bond challenges the trial court’s denial of his motion for mistrial based on prosecutorial misconduct. He argues that it was improper for the prosecutor to call Mr. Rettig knowing that he would invoke his Fifth Amendment privilege, and that the court therefore erred in denying his motion for mistrial. 4 3 The questions that Mr. Rettig refused to answer are the subject of Mr. Bond’s Confrontation Clause challenge, and we discuss the substance of the questions in greater detail in our analysis of that claim. See infra Part II. 4 In arguing that the prosecutor’s misconduct in calling Mr. Rettig led to a Confrontation Clause violation, Mr. Bond conflates his Fifth Amendment invocation and Confrontation Clause claims. But these are two wholly distinct allegations—one is a claim of improper presentation to the jury of a witness’ invocation of a privilege, and the other is a claim of violation of the right to confront the witness. Moreover, as Mr. Bond’s appellate counsel candidly acknowledges, only the invocation claim—not the Confrontation Clause allegation—was preserved. Mr. Bond did not argue, and the trial court did not consider, any Sixth Amendment concerns arising from the prosecutor’s leading questions. Because the claims are based on different allegations, and because we review preserved and unpreserved claims under (cont.) 7 Cite as: 2015 UT 88 Opinion of the Court ¶ 23 As we noted above, “[o]n appeal from a denial of a motion for mistrial based on prosecutorial misconduct, because the trial court is in the best position to determine an alleged error’s impact on the proceeedings, we will not reverse the trial court’s ruling absent an abuse of discretion.” State v. Hay, 859 P.2d 1, 6 (Utah 1993). With this standard in mind, we first ask whether the prosecutor’s actions constituted misconduct. Id. at 6–7. 5 If there was misconduct, we then proceed to ask whether the misconduct influenced the verdict. Id. at 7–8. 6 Here, we conclude that the trial court correctly found that the prosecutor did not commit misconduct by calling Mr. Rettig and therefore did not abuse its discretion in denying the motion for mistrial. ¶ 24 A prosecutor may commit misconduct by “call[ing] to the attention of the jurors matters they would not be justified in different standards, we analyze Mr. Bond’s Confrontation Clause argument separately. See State v. Johnson, 774 P.2d 1141, 1144–45 (Utah 1989) (indicating that claims must be based on distinct and specific objections in order to be preserved). 5 This analysis presupposes the existence of a timely and appropriate objection to the alleged misconduct and, therefore, that the issue was preserved for appeal. Here, the State makes no suggestion that Mr. Bond failed to adequately preserve his Fifth Amendment challenge. Consequently, nothing in this opinion should be interpreted as suggesting the existence of, or endorsing, “a standalone basis for direct review of the actions of prosecutors.” State v. Larrabee, 2013 UT 70, ¶ 65, 321 P.3d 1136 (Lee, J., dissenting). 6 When evaluating the denial of a mistrial motion based on alleged prosecutorial misconduct, we treat both of these inquiries under the heading of a single abuse of discretion standard. See State v. Hay, 859 P.2d 1, 6–8 (Utah 1993). Nonetheless, we recognize that the trial court makes two distinct determinations when presented with an allegation of prosecutorial misconduct— first evaluating whether there was misconduct and then considering any resulting prejudice. State v. Speer, 750 P.2d 186, 190 (Utah 1988). It is this second part of the analysis that requires the court’s exercise of sound discretion. Id. Our review of the trial court’s ruling therefore follows this same bifurcated analysis that trial courts do and should employ. 8 STATE v. BOND Opinion of the Court considering in determining their verdict.” State v. Tillman, 750 P.2d 546, 555 (Utah 1987). Jurors are not to consider a valid invocation of a Fifth Amendment privilege in determining their verdict because “the exercise of the privilege is not evidence to be used . . . by any party.” State v. Travis, 541 P.2d 797, 799 (Utah 1975). Thus, a prosecutor who calls a witness to testify in a “planned or deliberate attempt[]. . . to make capital out of [the] witness[‘] refusals to testify” commits misconduct. Namet v. United States, 373 U.S. 179, 189 (1963). ¶ 25 Nevertheless, a prosecutor does not invariably commit misconduct by calling a witness who has declared an intention to remain silent. Though a prosecutor may not call a witness simply to “impress[] upon the jury . . . the claim of privilege,” there are legitimate reasons to call a witness who has indicated she will invoke the privilege to remain silent. State v. White, 671 P.2d 191, 193 (Utah 1983) (emphasis omitted). For example, a prosecutor “may be required” to call such a witness in order “to demonstrate [the witness’] unavailability.” Id.; see also State v. Schreuder, 712 P.2d 264, 274 (Utah 1985) (explaining that it was not misconduct when an attorney “merely called [a witness] to testify under oath before the trial judge about her intentions regarding the privilege”). Further, a witness who refuses to testify to one matter may willingly testify to other matters. Namet, 373 U.S. at 188; see also United States v. Coppola, 479 F.2d 1153, 1160 (10th Cir. 1973) (acknowledging that the State may “call a witness so as to give that witness an opportunity to answer particular questions”). Finally, a witness who declares an intention to remain silent may not be able to validly claim such a privilege. See Roberts v. United States, 445 U.S. 552, 560 n.7 (1980) (“A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give.”). Thus, a “prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous,” Namet, 373 U.S. at 188, but may call a witness if the prosecutor “reasonably assume[s] that the possibility of being cited for contempt by the Court would force [the witness] to testify,” United States v. Harper, 579 F.2d 1235, 1240 (10th Cir. 1978). In sum, a prosecutor does not commit misconduct if he has at least “a colorable—albeit ultimately invalid—argument” that he is calling the witness for a proper purpose and not “seeking to get evidentiary value from the questions and the claims of privilege.” United States v. Torrez-Ortega, 184 F.3d 1128, 1137 (10th Cir. 1999) (internal quotation marks omitted). 9 Cite as: 2015 UT 88 Opinion of the Court ¶ 26 Here, the prosecutor had far more than a colorable argument that Mr. Rettig could not validly claim the privilege against self-incrimination because the prosecution granted him use immunity. The Fifth Amendment privilege applies in both state and federal prosecutions, and therefore a grant of immunity that provides protection in only one jurisdiction but not the other would often be wholly unsatisfactory to the witness. United States v. Balsys, 524 U.S. 666, 682 (1998) (calling it “intolerable to allow a prosecutor in one or the other jurisdiction to eliminate the privilege by offering immunity less complete than the privilege’s dual jurisdictional reach”). Therefore, if a State compels an individual to testify through a grant of immunity, the federal government is prohibited from then using that testimony or its fruits against the witness in a federal prosecution. Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 79 (1964), abrogated by Balsys, 524 U.S. at 683–84; see also Balsys, 524 U.S. at 682 (“The only condition on the government when it decides to offer immunity in place of the privilege to stay silent is the requirement to provide an immunity as broad as the privilege itself.”). 7 7 If, however, immunity is granted through voluntary cooperation between the State and the witness—rather than as a means for the State to compel testimony—the immunity is governed by contract law and extends only as far as the grant provides. See United States v. Brown, 400 F.3d 1242, 1255–56 (10th Cir. 2005) (holding that statements made by a witness who received immunity from a state prosecutor for his cooperation could be used against him in a federal prosecution because the immunity agreement explicitly denied federal protection); United States v. Thompson, 25 F.3d 1558, 1562 (11th Cir. 1994) (applying “basic contract principles” to a grant of informal immunity). Though Mr. Rettig’s immunity grant is not in the record, it seems clear to the court that, particularly given Mr. Rettig’s refusals, the grant was a means to compel Mr. Rettig to testify and not the result of cooperation with the State. Cf. UTAH CODE § 77-22b- 1(1)(a) (Utah immunity statute providing that “[a] witness who refuses, or is likely to refuse, on the basis of the witness’s privilege against self-incrimination to testify . . . may be compelled to testify . . . after being granted use immunity”). 10 STATE v. BOND Opinion of the Court ¶ 27 Thus, the immunity granted to Mr. Rettig by the State applied to both state and federal prosecutions, and the prosecutor’s argument that Mr. Rettig could not validly claim the privilege was therefore not only colorable, but very likely correct. As the trial court acknowledged, the grant of immunity constituted a “change in the playing field . . . that justified reinquiring with Mr. Rettig as to his status and his willingness to testify.” Therefore, notwithstanding Mr. Rettig’s stated intention to invoke his Fifth Amendment privilege, the prosecutor had a sufficient legal basis for calling him to testify. ¶ 28 Furthermore, we find no indication that the prosecutor called Mr. Rettig simply to “impress[] upon the jury . . . the claim of privilege.” White, 671 P.2d at 193. In fact, the prosecutor appeared to make significant efforts to avoid Mr. Rettig’s invocation of his Fifth Amendment privilege. For example, during a sidebar after Mr. Rettig initially refused to testify, the prosecutor was the first to suggest that Mr. Rettig’s “Fifth Amendment rights are not something that’s relevant for the jury to consider.” And before calling Mr. Rettig to the stand for a second time, the prosecutor granted him use immunity. The most obvious purpose for such a grant would be to elicit actual testimony from Mr. Rettig. Moreover, after Mr. Rettig cited possible federal prosecution for gun possession as his basis for remaining silent, the prosecutor offered to limit further questions, saying, “Would you prefer I not talk about questions with regards to [the stolen] guns?” Lastly, the prosecutor offered to strike the leading questions that Mr. Rettig refused to answer and ultimately agreed to a limiting instruction prohibiting the jury from considering the invocation of privilege. ¶ 29 In sum, we find no indication that the prosecutor’s calling of Mr. Rettig was a “planned or deliberate attempt[] . . . to make capital out of [his] refusals to testify.” Namet, 373 U.S. at 189. Thus, Mr. Bond has not established misconduct on the part of the prosecutor for calling Mr. Rettig to testify. Moreover, Mr. Bond has failed to argue—let alone prove—that he was prejudiced by Mr. Rettig’s invocation of the privilege. 8 We therefore conclude 8 In any event, the State makes persuasive arguments that there was no prejudice. First, Mr. Rettig’s invocation of privilege was an isolated incident in the context of a long trial, and the (cont.) 11 Cite as: 2015 UT 88 Opinion of the Court that the trial court did not abuse its discretion in denying his motion for mistrial.
+CONFRONTATION CLAUSE VIOLATION UNDER EITHER A PLAIN ERROR OR AN INEFFECTIVE ASSISTANCE OF COUNSEL ANALYSIS ¶ 30 Mr. Bond next argues that the prosecution’s questioning of Mr. Rettig amounted to a violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution because Mr. Bond was denied the right to effectively cross-examine statements made against him. 9 However, Mr. Bond did not preserve this argument in the trial court. Therefore, our disposition turns on whether the trial court plainly erred in allowing the prosecution to question Mr. Rettig in this manner or whether Mr. Bond’s lawyers rendered ineffective assistance in failing to move for a mistrial based on the Confrontation Clause. After first setting forth Mr. Bond’s argument in greater detail, we explain below why his Confrontation Clause argument fails. ¶ 31 At trial, Mr. Bond raised a compulsion defense, arguing that he and Mr. Rettig had agreed to the scheme to steal the guns but that during the robbery Mr. Rettig changed course and forced Mr. Bond at gunpoint to kill Mr. Mortensen with the knife. As discussed above, the prosecutor called Mr. Rettig to testify as a prosecutor did not rely on or refer to the incident again. Thus, the court’s curative instruction to the jury was likely sufficient to mitigate any damage potentially done. See State v. Harmon, 956 P.2d 262, 271–74 (Utah 1998) (holding that a curative instruction was sufficient when the alleged error was an isolated incident and the prosecutor did not refer to it again). Second, the State presented extensive circumstantial evidence that both incriminated Mr. Bond and undermined his compulsion defense. In short, we are not persuaded that this brief episode so influenced the jury that a mistrial would be warranted. See State v. Cardall, 1999 UT 51, ¶ 18, 982 P.2d 79 (“If the court concludes that the jury was probably not prejudiced by an incident, [the] motion for a mistrial should be denied.”). 9 Mr. Bond raises his confrontation argument under only the federal constitution. Accordingly, we do not address his claim under article 1, section 12 of the Utah Constitution. 12 STATE v. BOND Opinion of the Court witness against Mr. Bond. Because of Mr. Rettig’s hesitancy in answering questions, the trial court granted the prosecutor leave to treat Mr. Rettig as a hostile witness and to pose leading questions. Mr. Rettig responded to the first twelve leading questions, admitting that he had agreed to testify against Mr. Bond, that he spoke by phone with Mr. Bond several times on the day of the murder, and that he met up with Mr. Bond later that same day. The prosecutor then asked seven additional leading questions about the details of the robbery and murder of Mr. Mortensen. Mr. Rettig refused to answer those questions, invoking his Fifth Amendment privilege. Mr. Bond contends that the upshot of this chain of events was that the prosecutor effectively testified on behalf of Mr. Rettig, leaving Mr. Bond with no means to challenge the assertions made in the leading questions. Moreover, he argues that the seven additional leading questions were designed to attack his theory of compulsion and that the State presented no other evidence to rebut his defense. He therefore claims a violation of his right under the Confrontation Clause. ¶ 32 The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. This constitutional protection ensures a criminal defendant a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. Mattox v. United States, 156 U.S. 237, 242–43 (1895). ¶ 33 A prosecutor may impermissibly infringe on this right if she asks leading questions of a witness who claims a privilege against self-incrimination or otherwise refuses to answer. In Douglas v. Alabama, the Supreme Court held that the defendant’s right to confrontation was violated when the prosecutor used leading questions to read the confession of a codefendant who claimed a Fifth Amendment privilege. 380 U.S. 415, 416–17, 419–20 (1965). There, the Court reasoned that even though the 13 Cite as: 2015 UT 88 Opinion of the Court prosecutor’s questions were not technically evidence, the questions “may well have been the equivalent in the jury’s mind of testimony” and “the jury might improperly infer both that the statement had been made and that it was true.” Id. at 419. The Court reversed the conviction, holding that the defendant had no means to challenge the truthfulness of the statement. Id. at 418–20; see also State v. Villarreal, 889 P.2d 419 (Utah 1995) (finding a Confrontation Clause violation when a codefendant refused to testify and the prosecutor asked leading questions based on the codefendant’s earlier confession). ¶ 34 Mr. Bond acknowledges that his counsel did not object to the prosecutor’s conduct or move for mistrial on Confrontation Clause grounds. Therefore, he argues in the alternative that the trial court plainly erred in permitting the violation and that his counsel were ineffective for failing to move for mistrial on this basis.
+Trial Court Committed Plain Error ¶ 35 Mr. Bond argues that the trial court committed plain error by permitting the prosecutor to ask leading questions designed to inculpate him, thereby violating his rights under the Confrontation Clause. Mr. Bond and the State dispute the standard applicable to his unpreserved Confrontation Clause claim. Mr. Bond contends that where there is a constitutional violation, the burden to prove harm under plain error shifts to the State to demonstrate that the error was harmless beyond a reasonable doubt. The State acknowledges that it carries such a burden for preserved Sixth Amendment claims, but it argues that when the claim is unpreserved, the burden to prove prejudice remains with the defendant. We agree with the State and hold that the defendant retains the burden to show harm for unpreserved federal constitutional claims under plain error. Applying this standard, we conclude that Mr. Bond is unable to meet his burden to demonstrate that he suffered prejudice. 1. The Standard of Review for Mr. Bond’s Unpreserved Confrontation Clause Claim Under the Plain Error Doctrine ¶ 36 The plain error doctrine serves as an exception to our long-standing rule that issues cannot be raised on appeal if they were not argued below at trial. Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996). The exception “enables the appellate court to 14 STATE v. BOND Opinion of the Court balance the need for procedural regularity with the demands of fairness.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (internal quotation marks omitted). But it imposes a high burden on defendants: they must demonstrate that “(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). ¶ 37 Mr. Bond cites the Supreme Court’s decision in Chapman v. California, 386 U.S. 18 (1967), to argue that the burden to demonstrate harm—the third part of the plain error test—shifts from the defendant to the State when a constitutional error is alleged. In Chapman, the Court held that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id. at 24. And the Court reaffirmed this principle in Delaware v. Van Arsdall with language this court has often employed: “[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” 475 U.S. 673, 681 (1986). ¶ 38 Neither Chapman nor Van Arsdall specified whether this federal standard applies with equal force to preserved and unpreserved trial errors, and we acknowledge that our precedent on this issue has not been consistent. 10 In the years immediately following the Chapman decision, we cited or applied the harmless beyond a reasonable doubt standard with little discussion. See, e.g., State v. Martinez, 457 P.2d 613, 614 (Utah 1969) (first instance of this court applying Chapman, concluding that alleged Miranda and Fourth Amendment violations were harmless beyond a 10 In recent decisions, our court of appeals has pointed out a tension in our previous cases. State v. Wright, 2013 UT App 142, ¶ 41 n.6, 304 P.3d 887 (noting that the question of “[w]hether the defendant or the State bears the burden of showing harm . . . [is] not readily resolvable under our current precedent”); State v. Cox, 2012 UT App 234, ¶ 15 n.2, 286 P.3d 15 (Voros, J., concurring) (stating that “Utah case law is not entirely clear” on the issue of “who bears the burden of proof, when a claim of constitutional error is raised within the plain error context”). 15 Cite as: 2015 UT 88 Opinion of the Court reasonable doubt); State v. McGee, 473 P.2d 388, 391 (Utah 1970) (applying the standard without citing to authority). And in subsequent decisions, we have applied the standard in an inconsistent manner. For example, in State v. Tillman, we applied the heightened review standard to an unpreserved challenge to the prosecutor’s comments about the defendant’s decision not to testify. 750 P.2d 546, 553 (Utah 1987). 11 We quoted the “harmless beyond a reasonable doubt” language from Van Arsdall and ultimately did “not hesitate in holding any error was harmless beyond a reasonable doubt” because there was significant evidence of guilt. Id. at 555. In State v. Ross, we again addressed a constitutional challenge under the doctrine of plain error. 2007 UT 89, 174 P.3d 628. There, the prosecution misstated evidence during closing argument without objection from the defendant. Id. ¶¶ 56–57. As to the harm, we asserted that “[i]f prosecutorial misconduct is established, the State must show that the error was harmless beyond a reasonable doubt.” Id. ¶ 54. We ultimately determined that the prosecutor’s comments were “harmless given the weight of evidence against” the defendant and affirmed the conviction. Id. ¶¶ 57–58. ¶ 39 In contrast to Tillman and Ross, in State v. Medina-Juarez, we applied a plain error analysis to the defendant’s unpreserved claim that the court erroneously admitted statements that had been taken in violation of his Fifth Amendment rights. 2001 UT 79, ¶¶ 17–18, 34 P.3d 187. We held that the defendant failed to 11 Because State v. Tillman was a capital case, which may garner unique review under our case law, its precedential value in this non-death penalty setting is somewhat questionable. We do, however, recognize an inconsistency within Tillman. We began our analysis in Tillman by noting: “This Court will review errors raised and briefed on appeal in death penalty cases, even though no proper objection was made at trial, but will reverse a conviction based upon such errors only if they meet the manifest and prejudicial error standard.” 750 P.2d 546, 553 (Utah 1987). Despite this statement, we then employed the “harmless beyond a reasonable doubt” standard in our analysis. Id. at 555. But we need not resolve this discrepancy here, and we do not decide whether today’s abrogation of the “harmless beyond a reasonable doubt” standard in some of our earlier cases, see infra ¶¶ 38–46, extends to our death penalty jurisprudence as well. 16 STATE v. BOND Opinion of the Court establish prejudice because he had not proven that the admitted statements were sufficiently harmful. Id. ¶ 18. And in State v. Cruz, we recognized that federal courts apply plain error review to unpreserved constitutional claims, requiring the defendant to show prejudice. 2005 UT 45, ¶ 18, 122 P.3d 543. ¶ 40 Furthermore, in State v. Maestas, we applied different standards for unpreserved Fifth and Sixth Amendment claims. 2012 UT 46, 299 P.3d 892. There, the defendant brought a multitude of constitutional challenges. He first claimed a violation of his Sixth Amendment right to counsel, arguing that the error should warrant per se reversal under the structural error doctrine 12 because counsel was denied at critical stages of the proceeding. Id. ¶ 57. The court began by quoting the “harmless beyond a reasonable doubt” language from Van Arsdall, id. ¶ 56, but then stated that the defendant’s claims were unpreserved and thus could be reviewed only for plain error, id. ¶¶ 59, 65, 67. The court then went on to determine that none of the claims warranted per se reversal as structural error and that the defendant therefore bore the burden to demonstrate harm. Id. ¶¶ 64, 66, 71. The defendant in Maestas next raised an unpreserved Fifth Amendment claim, arguing that the prosecutor impermissibly commented on the defendant’s decision not to testify. Id. ¶ 161. We quoted the standard from Tillman, id. ¶ 162, and, without stating which party bore the burden, analyzed the harm under the stricter “harmless beyond a reasonable doubt standard,”id. ¶ 165. ¶ 41 The confusion in Maestas and our previous cases is perhaps unsurprising given that this court appears to have never 12 A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). Only a very limited number of errors qualify as structural. See Johnson v. United States, 520 U.S. 461, 468–69 (1997) (listing errors found to be structural). Because these errors are so serious, they generally “defy analysis by ‘harmless-error’ standards,” Fulminante, 499 U.S. at 309; but, as we explain below, even structural errors are subject to preservation requirements, meaning that a defendant must establish plain error if he does not preserve the error at trial. Infra ¶¶ 42–46. 17 Cite as: 2015 UT 88 Opinion of the Court directly settled a dispute over the proper review standard for an unpreserved federal constitutional claim. 13 But we now take the opportunity to clarify the appropriate standard for such claims. We therefore turn to recent pronouncements by the United States Supreme Court and federal circuit courts, and we disavow any of our precedent that is inconsistent with those articulations. 14 ¶ 42 In Johnson v. United States, the Supreme Court held that when a defendant raises an unpreserved constitutional claim— even one serious enough to constitute structural error—the claim is subject to plain error review under which the defendant bears the burden to show harm. 520 U.S. 461 (1997); see also United States v. Olano, 507 U.S. 725, 734 (1993) (explaining that under plain error, “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice”). In Johnson, though she did not object at trial, the defendant claimed on appeal that the trial court violated her Fifth and Sixth Amendment rights by itself deciding an element of the charged crime rather than submitting the element to the jury. 520 U.S. at 464. The Supreme 13 In State v. Maestas, for example, the issue before the court was primarily whether the alleged errors were structural in nature (and therefore per se reversible), and not what standard should apply if the errors were not structural. 2012 UT 46, ¶¶ 64, 66, 71, 299 P.3d 892. 14 We reiterate that our discussion here relates to claims brought under the federal constitution. As to other claims, we have already announced that our “preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that ‘exceptional circumstances’ exist or ‘plain error’ occurred.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (citation omitted); see also State v. Houston, 2015 UT 40, ¶¶ 18, 20, 353 P.3d 55 (recognizing that Utah Rule of Criminal Procedure 22(e) “operates as another limited exception to the preservation doctrine,” permitting facial constitutional challenges to a defendant’s sentence in order to “correct an illegal sentence . . . or a sentence imposed in an illegal manner”(internal quotation marks omitted)). And for unpreserved state constitutional questions, the burden to prove plain error does not change: a defendant must demonstrate that an obvious and prejudicial error occurred. See State v. Menzies, 889 P.2d 393, 405 (Utah 1994). 18 STATE v. BOND Opinion of the Court Court first affirmed the basic precept that a criminal defendant may forfeit a right afforded her by failing to object at trial. Id. at 465; see also Olano, 507 U.S. at 731 (“[A] constitutional right . . . may be forfeited in criminal . . . cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” (internal quotation marks omitted)). The Court then recognized that rule 52(b) of the Federal Rules of Criminal Procedure provides an exception to this forfeiture principle, permitting courts to correct a plain error even if it was never raised before the trial court. Johnson, 520 U.S. at 466. However, plain error review under rule 52(b) requires the defendant to meet a stringent four-part test. 15 It places a burden on the defendant to show that the error “affect[ed] substantial rights,” FED. R. CRIM. P. 52(b), meaning that “the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734. ¶ 43 The defendant in Johnson argued that she should be relieved of the burden to prove plain error under rule 52(b) because the alleged error was structural and thus warranted automatic reversal. Johnson, 520 U.S. at 466–67. But the Supreme Court rejected the defendant’s argument that unpreserved allegations of structural error should not be reviewed for plain error. Id. Instead, the Court declared that “the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure.” Id. at 466. Therefore, the Court did not review the unpreserved claim as a per se reversible structural error or under the heightened Chapman standard; rather, it conducted a harmlessness analysis under its rule 52(b) plain error doctrine. Id. at 466–70. Under Johnson, therefore, even federal constitutional errors so serious as to be deemed structural are subject to preservation requirements. See 15 Federal plain error review is similar to Utah’s plain error review, although the language differs and the federal test involves an extra step. Under federal analysis, a court has the discretion to correct an error if there is an “(1) error, (2) that is plain, and (3) that affect[s] substantial rights[,] . . . [and] (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467 (first and fifth alterations in original) (internal quotation marks omitted). 19 Cite as: 2015 UT 88 Opinion of the Court Neder v. United States, 527 U.S. 1, 9 (1999) (recognizing that in Johnson, “[t]he defendant failed to object at trial, and we thus reviewed her claim for ‘plain error’”). ¶ 44 Similarly, in Kimmelman v. Morrison, the Supreme Court explained that if a defendant fails to preserve a Fourth Amendment objection at trial, “he also loses the opportunity to obtain direct review under the harmless-error standard of Chapman v. California.” 477 U.S. 365, 382 n.7 (1986). And the Tenth Circuit reached the same determination we do here: for an unpreserved constitutional error, “our review should be for plain error under [Federal Rule of Criminal Procedure] 52(b), as opposed to the ‘harmless beyond a reasonable doubt’ standard under Chapman . . . for preserved constitutional error.” United States v. Lott, 310 F.3d 1231, 1240 (10th Cir. 2002). 16 Based upon these federal pronouncements, we hold that unpreserved federal constitutional claims are not subject to a heightened review standard but are to be reviewed under our plain error doctrine. 17 ¶ 45 This holding comports with the aims of preservation as expressed by the United States Supreme Court and this court. The Supreme Court has explained that under plain error review, the 16 A number of our sister states that have considered the issue have likewise interpreted federal precedent to require the heightened standard only for preserved constitutional claims. E.g., Martinorellan v. State, 343 P.3d 590, 593 (Nev. 2015); Savoy v. State, 22 A.3d 845, 851–52, 852 n.4 (Md. 2011); People v. Miller, 113 P.3d 743, 749 (Colo. 2005). 17 In Chapman v. California, the Supreme Court held that its “harmless beyond a reasonable doubt” standard should govern review of federal constitutional errors, even in state courts. 386 U.S. 18, 20–21 (1967). But where the “harmless beyond a reasonable doubt” standard is not applicable, Chapman is silent as to whether we are free to apply our own state plain error test or are bound to follow the federal plain error test. However, we need not decide that issue here for two reasons. First, both parties exclusively relied upon and advocated under our Utah plain error standard in their briefs. Second, the outcome here would be the same under either test: both tests in these circumstances require Mr. Bond to show prejudice, and he has failed to do so. See State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993); Johnson, 520 U.S. at 467. 20 STATE v. BOND Opinion of the Court “burden should not be too easy for defendants” and the standard of review should “encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error.” United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). Similarly, our Utah rules of preservation promote judicial economy by allowing a court to rule on the issues and correct errors, thus avoiding appeals and retrials. Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828. And because in our adversarial system the responsibility to detect errors lies with the parties and not the court, preservation rules encourage litigants to grant the district court the first opportunity to rule on an issue. Id. ¶ 16. ¶ 46 Moreover, requiring a defendant to demonstrate prejudice on an unpreserved claim harmonizes the prejudice inquiries under the plain error and ineffective assistance of counsel doctrines. Both doctrines serve as exceptions to our preservation rules, permitting a court to review errors that would otherwise be forfeited. See id. ¶ 13. For ineffective assistance of counsel claims, which are themselves constitutional concerns grounded in the Sixth Amendment, the Supreme Court has placed on the defendant the burden of showing prejudice. See Strickland v. Washington, 466 U.S. 668, 684–87 (1984). 18 And ineffective assistance claims are almost never raised in the trial itself but are usually made for the first time by appellate counsel. It would make little sense to require a defendant to prove prejudice under the circumstances of ineffective assistance and yet relieve him of that duty for other constitutional errors that could more easily have been raised during the trial. This court cannot conceive of a reason for these standards to diverge, and Mr. Bond has made no attempt to provide us with one. ¶ 47 Having determined the appropriate plain error test for unpreserved federal constitutional claims, we now apply that standard to Mr. Bond’s Confrontation Clause argument. 18 The Court has held that prejudice is presumed for certain Sixth Amendment violations. See Strickland v. Washington, 466 U.S. 668, 692 (1984). But this class of error is extremely limited, including, for example, an actual or constructive denial of the right to counsel or when counsel labors under an actual conflict of interest. Id. 21 Cite as: 2015 UT 88 Opinion of the Court 2. Mr. Bond Has Failed to Establish that Any Error Was Harmful ¶ 48 To succeed on his Confrontation Clause claim, Mr. Bond must satisfy all three parts of the plain error test: he must demonstrate (1) that there was an error, (2) that it should have been obvious to the trial court, and (3) that it was harmful. See Dunn, 850 P.2d at 1208–09. Mr. Bond argues that the trial court committed error in permitting the prosecutor to ask Mr. Rettig leading questions because Mr. Bond had no effective means to cross-examine the assertions made through the questioning. And he contends that the prosecutor’s questioning was contrary to settled law and therefore should have been obvious to the trial court. Finally, Mr. Bond argues that the leading questions were harmful because they constituted “the only direct evidence that [Mr.] Bond killed Kay [Mortensen] with the requisite intent rather than under compulsion.” ¶ 49 Because Mr. Bond bears the burden on plain error review, if any of the three elements is not satisfied, his claim fails. Here, we turn first to the prejudice element. “An error is harmful if, absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, [if] our confidence in the verdict . . . is undermined.” Maestas, 2012 UT 46, ¶ 37 (first alteration in original) (internal quotation marks omitted). In reviewing each of the seven questions below, we determine that the questions did little more than duplicate evidence already admitted at trial. Moreover, any aspects of the leading questions that went beyond established evidence ultimately had little bearing on Mr. Bond’s defense of compulsion. Mr. Bond therefore has not established prejudice.
+¶ 50 The prosecutor first asked Mr. Rettig five related questions that all focused on the planning and initial stages of the crime: Question 1 “Isn’t it true that you’ve told the police that the reason you were meeting up with [Mr.] Bond is because you and him had talked about going to a man’s house and taking some guns the day before, November 15, 2009?” Question 2 “Isn’t it true that you told the police that [Mr. Bond] had actually approached you the day 22 STATE v. BOND Opinion of the Court before and talked about going to some guy’s house in Payson and stealing some guns?” Question 3 “Okay, so the question is, isn’t it true that you told the police that you drove from Vernal to Payson, that you stopped at Walmart and bought some zip ties and latex gloves and some hoodies with Mr. Bond?” Question 4 “Isn’t it true that you told the police that you went up to Kay Mortensen’s house and [Mr. Bond] told you to stay in the car while he went and knocked on the door?” Question 5 “Isn’t it true that you actually entered the house at the direction of [Mr. Bond] with the gun and you helped zip tie Kay Mortensen? Isn’t that true, isn’t that true that you told the police?” ¶ 51 Together, these questions imply that Mr. Bond took the lead in the early stages of the robbery. They suggest that Mr. Bond originated the idea of robbing Mr. Mortensen, directed Mr. Rettig to remain in the car when they arrived, knocked on the door, and prompted Mr. Rettig to enter the home. But many of these factual assertions were established by other evidence already presented to the jury by the State. For example, in a recorded interview with police, Mr. Bond explained that he and Mr. Rettig had planned to travel to Mr. Mortensen’s home to steal his guns and that they met up for that purpose on the day of the murder. Mr. Bond’s ex-wife also testified that Mr. Bond told her he drove with Mr. Rettig to Payson to rob Mr. Mortensen. Additionally, the State had presented evidence that Mr. Bond brought zip ties and latex gloves to Mr. Mortensen’s home on the night of the murder. Likewise, the State established through earlier evidence that Mr. Rettig held the gun as they entered the home and helped to zip-tie Mr. Mortensen. ¶ 52 More importantly, however, none of the first five questions directly contradicts or undermines Mr. Bond’s compulsion defense. When the pair entered Mr. Mortensen’s home, Mr. Bond and Mr. Rettig were carrying out a mutually agreed upon plan to rob him of his guns. According to Mr. Bond’s theory of the case, the plan went awry when Mr. Rettig forced him to kill Mr. Mortensen at gunpoint. And Mr. Rettig’s alleged 23 Cite as: 2015 UT 88 Opinion of the Court compulsion did not occur until well after the pair exited the car and entered the home. Thus, any implication that Mr. Bond took the lead in the early stages of the robbery did not foreclose the possibility that Mr. Rettig changed course and later forced Mr. Bond at gunpoint to kill Mr. Mortensen. In other words, even if Mr. Bond directed the early stages of the robbery, his compulsion defense remained intact. We therefore conclude that these initial questions were unlikely to undermine Mr. Bond’s defense or affect the outcome of the trial.
+¶ 53 The prosecutor next asked more directly about the circumstances of the murder and who was responsible for carrying out the act: Question 6 “Isn’t it true that you repeatedly told the police that [Mr. Bond] is the one who stabbed and killed Kay Mortensen and that you were holding the gun upstairs in the bathroom; isn’t that true?” ¶ 54 But this question is not harmful to Mr. Bond’s defense because it actually restates Mr. Bond’s own version of events. The State had introduced notes that Mr. Bond wrote and passed to another inmate in which he related the exact scenario suggested by the prosecutor’s question: he wrote that Mr. Rettig threatened him with the handgun and compelled him to slit Mr. Mortensen’s throat. Moreover, defense counsel argued the same version of events in closing as the basis of Mr. Bond’s compulsion defense. Far from prejudicing Mr. Bond, this question actually paralleled his theory of the case. Thus, Mr. Bond was not prejudiced by this question.
+¶ 55 Finally, the prosecutor inquired about the proceeds of the robbery—the guns stolen from Mr. Mortensen’s house: Question 7 “Isn’t it true that you didn’t get any guns or anything or any, or you didn’t get paid, you didn’t receive anything, that’s what you told the police, [that] you didn’t receive anything at all?” ¶ 56 Through Mr. Bond’s jail notes and his interview with police, the jury had already learned that Mr. Rettig left all of the 24 STATE v. BOND Opinion of the Court stolen guns with Mr. Bond after the murder. And in ruling on the mistrial motion, the trial court observed that “there was . . . substantial evidence already in the record to establish that Mr. Rettig had not received any sort of financial or other benefit from this event.” Therefore, because the jury already heard evidence that Mr. Rettig did not receive the guns, we conclude that this question would have had little impact on the jury. ¶ 57 For each of the seven questions, Mr. Bond has failed to demonstrate prejudice resulting from the prosecutor’s assertions that would undermine our confidence in the jury’s verdict. Because he has not met his burden to show prejudice, we reject his claim of plain error. B. Mr. Bond Has Failed to Establish Ineffective Assistance of Counsel for Counsel’s Failure to Move for Mistrial Based on a Confrontation Clause Violation ¶ 58 Mr. Bond argues that his counsel provided ineffective assistance because counsel did not move for a mistrial based on an alleged Confrontation Clause violation. He contends that counsel’s performance was deficient because there was “no conceivable legitimate tactic or strategy” for failing to move on this ground. State v. Tennyson, 850 P.2d 461, 468 (Utah App. 1993). Moreover, he claims he was prejudiced because the trial court would have been compelled to grant a mistrial based on the alleged Confrontation Clause violation. We determine, however, that no prejudice resulted from counsel’s actions, and Mr. Bond’s claim accordingly fails. ¶ 59 The Sixth Amendment to the United States Constitution guarantees a criminal defendant the “Assistance of counsel for his defense,” meaning that he has “the right to effective assistance of counsel,” State v. Templin, 805 P.2d 182, 186 (Utah 1990) (internal quotation marks omitted). Under the Supreme Court’s decision in Strickland v. Washington, Mr. Bond must satisfy a two-part test to demonstrate that he has been denied counsel’s effective assistance. 466 U.S. 668, 687 (1984). First, Mr. Bond must show that “his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment.” Archuleta v. Galetka, 2011 UT 73, ¶ 38, 267 P.3d 232 (internal quotation marks omitted). Second, he must show that “counsel’s performance prejudiced” him, meaning that there is “a reasonable probability 25 Cite as: 2015 UT 88 Opinion of the Court that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. ¶¶ 38, 40 (internal quotation marks omitted). Here, we first turn to the prejudice element of Mr. Bond’s claim and determine that he has failed to establish there is “a reasonable probability” that the “result of the proceeding would have been different.” Id. ¶ 40. ¶ 60 In much the same way that Mr. Bond failed to show prejudice under plain error, see supra ¶¶ 49–57, he has also failed to demonstrate prejudice under the ineffective assistance of counsel test in Strickland. Even assuming there was a Confrontation Clause violation, Mr. Bond did not establish that he was prejudiced by the prosecutor’s leading questions. Because there was no harm from the questions, he also has not shown “a reasonable probability that . . . the result of the proceeding would have been different,” meaning, in this case, that the trial court would have granted the motion for mistrial had counsel moved on that ground. Archuleta, 2011 UT 73, ¶ 40. Therefore, we hold that Mr. Bond has not established that defense counsel’s failure to move for a mistrial based on his Confrontation Clause right constituted ineffective assistance of counsel.
+ASSISTANCE FOR COUNSEL’S FAILURE TO MOVE TO MERGE HIS CONVICTIONS ¶ 61 Lastly, Mr. Bond argues that he received ineffective assistance because counsel did not move to merge his charge of aggravated kidnapping with the charge of aggravated murder. We hold that the charges could not merge as a matter of law and therefore such a motion would have been unsuccessful. Accordingly, Mr. Bond cannot demonstrate that his trial lawyers were ineffective for failing to raise a futile motion. ¶ 62 Under the first part of Strickland, Mr. Bond must show that “his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment.” Archuleta v. Galetka, 2011 UT 73, ¶ 38, 267 P.3d 232 (internal quotation marks omitted). In so doing, Mr. Bond must “rebut the strong presumption that under the circumstances, the challenged action might be considered sound trial strategy.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (internal quotation marks omitted). 26 STATE v. BOND Opinion of the Court ¶ 63 “[T]he failure of counsel to make motions . . . [that] would be futile if raised does not constitute ineffective assistance.” Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983) (internal quotation marks omitted). This is because the decision not to pursue a futile motion is almost always a “sound trial strategy.” Litherland, 2000 UT 76, ¶ 19 (internal quotation marks omitted). And where there is a sound strategy, a defendant cannot satisfy his burden of demonstrating that counsel’s “performance fell below an objective standard of reasonable professional judgment.” Archuleta, 2011 UT 73, ¶ 38 (internal quotation marks omitted). We thus consider whether a motion for merger of Mr. Bond’s convictions would have been futile. ¶ 64 Mr. Bond argues that because aggravated kidnapping is a predicate offense of aggravated murder and is established by proof of the same facts, the former is a lesser included offense of the latter and he cannot be convicted of both. 19 He contends that allowing both convictions to stand would violate Utah’s merger doctrine—set forth in Utah Code section 76-1-402(3)—and the Double Jeopardy Clause. 20 ¶ 65 The merger doctrine “is a judicially-crafted doctrine available to protect criminal defendants from being twice punished for committing a single act that may violate more than one criminal statute.” State v. Smith, 2005 UT 57, ¶ 7, 122 P.3d 615 (internal quotation marks omitted). “The motivating principle behind the merger doctrine is to prevent violations of 19 In its brief, the State also discusses the so-called Finlayson merger doctrine and argues that it does not apply here. Mr. Bond appears to agree, noting that neither the court of appeals decision in that case, State v. Finlayson, 956 P.2d 283, 287 (Utah Ct. App. 1998), nor this court’s subsequent decision, State v. Finlayson, 2000 UT 10, 994 P.2d 1243, “are material to the issue” presented here. Accordingly, we do not address Mr. Bond’s claim under the Finlayson doctrine. See Allen v. Friel, 2008 UT 56, ¶ 16, 194 P.3d 903 (declining to address arguments not raised or briefed by the parties). 20 Mr. Bond raises his double jeopardy argument under both the Utah and United States Constitutions. But because he “has not separately briefed his state constitutional claim, . . . we do not reach it.” State v. Mace, 921 P.2d 1372, 1376 (Utah 1996). 27 Cite as: 2015 UT 88 Opinion of the Court constitutional double jeopardy protection.” Id.; see also Brown v. Ohio, 432 U.S. 161, 169 (1977) (holding that the Double Jeopardy Clause “forbids successive prosecution and cumulative punishment for a greater and lesser included offense”). The doctrine is codified in Utah Code section 76-1-402(3), which provides that a defendant “may not be convicted of both the offense charged and the included offense.” An offense is an included offense if “[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” UTAH CODE § 76-1-402(3). ¶ 66 The State charged Mr. Bond with aggravated murder under Utah Code section 76-5-202(1), which elevates homicide to aggravated murder “if the actor intentionally or knowingly causes the death of another” under any of several enumerated circumstances. The jury instruction in Mr. Bond’s case presented the jury with the following possible aggravating circumstances: (a) The homicide was committed incident to an act, scheme, course of conduct, or criminal episode during which the actor committed or attempted to commit aggravated robbery, robbery, aggravated burglary, aggravated kidnapping, or kidnapping; OR (b) The homicide was committed for pecuniary gain .... See id. § 76-5-202(1)(d), (g). The jury convicted Mr. Bond of both the aggravated kidnapping and aggravated murder of Mr. Mortensen, but the verdict form did not specify which circumstance the jury deemed satisfied for the aggravated murder charge. ¶ 67 Mr. Bond argues that because aggravated kidnapping is a predicate offense of aggravated murder and was most “closely and causally related” to the homicide, it must merge with the aggravated murder conviction. He cites precedent from this court for the proposition that a predicate offense is a lesser included offense of aggravated murder and thus precludes conviction for both. See State v. Shaffer, 725 P.2d 1301, 1313–14 (Utah 1986) (merging an aggravated robbery conviction with a first-degree murder conviction because “[n]o additional facts or separate elements are required to prove aggravated robbery after first degree murder based on the predicate offense of aggravated robbery is shown”); State v. Wood, 868 P.2d 70, 88–91 (Utah 1993) 28 STATE v. BOND Opinion of the Court (merging a predicate offense of aggravated sexual assault with a first-degree murder conviction); State v. Nielsen, 2014 UT 10, ¶¶ 57–58, 326 P.3d 645 (merging a conviction for aggravated kidnapping with an aggravated murder conviction because aggravated kidnapping is established by proof of the same elements as or fewer elements than aggravated murder). ¶ 68 But the cited cases are ultimately irrelevant to our analysis here. The touchstone of the analysis under Utah Code section 76-1-402(3) and the Double Jeopardy Clause is the intent of the Legislature, Smith, 2005 UT 57, ¶ 9, and Mr. Bond errs in failing to acknowledge the difference between the statutes at issue in Shaffer, Wood, and Nielsen and the aggravated murder statute under which he was convicted. ¶ 69 To resolve whether convictions must merge, the “determination to be made is whether the legislature intended” an offense to be a lesser included offense of another. State v. McCovey, 803 P.2d 1234, 1238 (Utah 1990); see also Albernaz v. United States, 450 U.S. 333, 344 (1981) (“[T]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended . . . to impose multiple punishments, imposition of such sentences does not violate the Constitution.” (Stewart, J., concurring) (first alteration in original) (internal quotation marks omitted)). To determine whether the Legislature intended an offense to be a lesser included offense, we look to the plain language of the statute that defines the criminal offense. Smith, 2005 UT 57, ¶ 11. ¶ 70 We have recognized that some statutes operate as “enhancement statutes.” McCovey, 803 P.2d at 1237. They “are different in nature than other criminal statutes because they single out particular characteristics of criminal conduct as warranting harsher punishment.” Smith, 2005 UT 57, ¶ 10 (internal quotation marks omitted). And where the Legislature has designated a statute as an enhancing statute, the merger doctrine has no effect. Id. ¶ 9. However, the Legislature exempts a statute from the requirements of the merger doctrine only when “an explicit indication of legislative intent is present in the specific offense statute.” Id. ¶ 11. Applying this requirement in State v. Ross, we held that an underlying felony that constitutes the aggravating factor for aggravated murder merges with the aggravated murder conviction. 2007 UT 89, ¶ 64, 174 P.3d 628. This was because 29 Cite as: 2015 UT 88 Opinion of the Court “explicit indication [of intent] is required” and the Legislature “has done nothing to clearly indicate that the provision . . . is intended to enhance the penalty for [murder] when certain characteristics are present.” Id. (second and third alterations in original) (internal quotation marks omitted). As in Ross, the statutes at issue in Shaffer, Wood, and Nielsen contained no such explicit exemption from the merger doctrine. See UTAH CODE § 76-5-202 (1953) (first-degree murder statute in Shaffer); id. § 76-5- 202 (1988) (first-degree murder statute in Wood); id. § 76-5-202 (2000) (aggravated murder statute in Nielsen). ¶ 71 After Ross, however, the Legislature did amend the aggravated murder statute to provide an explicit exemption from the merger doctrine. See Criminal Penalties Revisions, 2008 Utah Laws 643–45. The amendment added subsection (5), which reads: Any aggravating circumstance described in Subsection (1) or (2) that constitutes a separate offense does not merge with the crime of aggravated murder. . . . A person who is convicted of aggravated murder, based on an aggravating circumstance described in Subsection (1) or (2) that constitutes a separate offense, may also be convicted of, and punished for, the separate offense. UTAH CODE § 76-5-202(5). The plain language of this amended aggravated murder statue—under which Mr. Bond was convicted—can leave no doubt that the Legislature intended that a predicate offense does not merge with the homicide conviction. ¶ 72 Because, as a matter of law, Mr. Bond’s convictions for aggravated kidnapping and aggravated murder do not merge, a motion seeking merger would have been futile. Therefore, Mr. Bond has not shown that his counsel performed deficiently, and his claim for ineffective assistance of counsel fails.",analysis
+269,1377247,1,8,"Appellant's last contention is that the evidence was insufficient to sustain his conviction. Specifically, appellant contends that the state    failed to prove either a threat, express or implied, sufficient to place the victim in fear of immediate death or serious physical injury to herself, or earnest resistance on the part of the victim, sufficient to support a conviction for first-degree sexual assault. Appellant moved for a dismissal of the charges against him at the close of the state's case, and renewed the motion after the defense rested. Both motions were denied, and the jury returned a verdict of guilty to the charge of first degree sexual assault. § 6-2-302(a)(i)-(ii). The method for reviewing the sufficiency of the evidence in criminal cases is:    [I]t is not whether the evidence establishes guilt beyond a reasonable doubt for us, but rather whether it is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by the jury when the evidence is viewed in the light most favorable to the State.    It is not our function to weigh the evidence for a determination as to whether or not it is sufficient to establish guilt beyond a reasonable doubt. We have consistently held that even though it is possible to draw other inferences from the evidence presented, it is the responsibility of the jury to resolve the conflicts in the evidence. [Citations.] Broom v. State, Wyo., 695 P.2d 640, 642 (1985). See also Jozen v. State, Wyo., 746 P.2d 1279, 1282 (1987). Pursuant to the instructions given by the court regarding the elements of the crime charged, the state had the burden of proving beyond a reasonable doubt that (1) appellant inflicted sexual intrusion on the victim by (2) causing submission of the victim through the actual application of physical force which was reasonably calculated to cause the victim's submission and by (3) threat of death, serious bodily injury or extreme physical pain to be inflicted upon the victim, and (4) the victim reasonably believed that the appellant had the present ability to execute these threats. Appellant was charged under § 6-2-302(a)(i)-(ii). It is interesting to note that the elements contained in the instruction, as read to the jury, do not exactly mirror the elements of the offense of first degree sexual assault as contained in § 6-2-302(a), which reads: (a) Any actor who inflicts sexual intrusion on a victim commits a sexual assault in the first degree if: (i) The actor causes submission of the victim through the actual application, reasonably calculated to cause submission of the victim, of physical force or forcible confinement; (ii) The actor causes submission of the victim by threat of death, serious bodily injury, extreme physical pain or kidnapping to be inflicted on anyone and the victim reasonably believes that the actor has the present ability to execute these threats; (iii) The victim is physically helpless, and the actor knows or reasonably should know [that] the victim is physically helpless and [that] the victim has not consented; or (iv) The actor knows or reasonably should know that the victim through a mental illness, mental deficiency or developmental disability is incapable of appraising the nature of the victim's conduct. (Emphasis added.) The difference between the instruction and the statute quoted above is that the instruction made the elements contained in subparagraphs (i) through (iv) conjunctive, rather than disjunctive, as they appear in the statute. However, appellant did not object to the instructions at trial. The failure to object to instructions at trial before the jury begins its deliberations operates to preclude appellate review of those instructions, which become the law of the case unless a plain or fundamental error can be shown to prevail. Cutbirth v. State, Wyo., 663 P.2d 888, 891 (1983). Here, no fundamental or plain error can be shown. At the very least, the court's characterization of the elements of the offense afforded appellant greater protection, in that the state was required to prove more facts to meet its burden of proof than is usually true in a first degree sexual assault case. Even with this additional burden the state proved its case sufficiently for the jury to find appellant guilty. Appellant's argument is that the evidence is insufficient to support his conviction because it fails to establish that he threatened the victim in such a way as to place her in fear of immediate death or serious physical injury, or that the victim earnestly resisted the assault.    In earlier cases this court recognized a principle to the effect that forcible rape can be established without proof of violence to the victim and that the victim need not always resist the assault. The gravamen of sexual assault in the first degree is lack of consent to the sexual penetration or intrusion which can be shown by resistance. [Citation.] Our cases have also recognized the proposition that lack of resistance by a victim does not necessarily demonstrate consensual intercourse. Resistance by a victim is not required when (1) resistance would be futile, (2) the victim is `overcome by superior strength,' or (3) the victim is `paralyzed by fear.'    Seeley v. State, Wyo., 715 P.2d 232, 240-241 (1986). At trial, the victim testified that appellant penetrated her vagina with his finger. Section 6-2-301(a)(vii)(A), W.S. 1977 (June 1983 Replacement), defines sexual intrusion as: (A) Any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue, or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse. Taking the evidence in the light most favorable to the state, appellant's actions clearly constitute sexual intrusion as defined by the statute. The victim also testified that when she returned to her car after making the telephone call, the man in the phone booth, appellant, appeared at her car door. Appellant then pushed his way into her car. As he did this, the victim screamed and bit appellant's hand. In retaliation, appellant bit the victim on the nose. Once inside the car, the two struggled over the car keys. When asked what he was planning to do, appellant replied,    Shut up. I will stab you. Shut up or I will hit you   , and kept pushing on the victim. The victim testified that at that point: I knew that he was stronger than I was, and it was like he had his hands in front, and there was a possibility that he had a knife somewhere. I wasn't about to question him at this time to show me the knife or to display it. I was really scared. I was frightened for my life at this point. He tried to drive away. He said he would stab me. I was very upset and trying to collect my thoughts, I guess, at the same time for survival.    (Emphasis added.) Appellant's actions clearly constituted physical force reasonably calculated to cause the victim's submission. Further, appellant threatened the victim with death or serious bodily injury if she did not cooperate by indicating that he would stab or hit her. Finally, based on the victim's testimony quoted above, it is clear that the victim was in fear of her life, and she reasonably believed that appellant had the present ability to execute his threats. We do not believe there was any deficiency in the evidence in this respect. The evidence proved that the victim was overcome by superior strength and that resistance on her part would have been futile. Each element of the charged crime was proven beyond a reasonable doubt in the mind of the jury such that it could find appellant guilty. Despite this, appellant maintains that he was not the perpetrator of the crime. Appellant concedes that he made a sexual remark to the victim as she approached the telephone booth, but contends that after making the statement he left the area. Clear evidence to the contrary was before the jury. The victim gave a written description of appellant to the investigating officers the evening she was assaulted. She later picked appellant's picture out of a photo array and made an in-court identification of appellant, testifying that her memory of the perpetrator's face was very strong in her mind. The evidence at trial was sufficient to support appellant's conviction. Affirmed.",sufficiency of the evidence
+270,6335715,1,2,"Because Nelson did not answer the formal charges, this court granted the Counsel for Discipline’s motion for judgment - 257 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. NELSON Cite as 311 Neb. 251 on the pleadings as to the facts. Having concluded that Nelson violated the Nebraska Rules of Professional Conduct and his oath of office as an attorney, see § 7-104, we must determine the appropriate sanction. [1] Violation of a disciplinary rule concerning the practice of law is a ground for discipline. State ex rel. Counsel for Dis. v. Birch, 309 Neb. 79, 957 N.W.2d 923 (2021). The basic issues in a disciplinary proceeding against an attorney are whether discipline should be imposed and, if so, the appropriate discipline under the circumstances. See id. Neb. Ct. R. § 3-304 of the disciplinary rules provides that the following may be considered as discipline for attorney misconduct: (A) Misconduct shall be grounds for: (1) Disbarment by the Court; or (2) Suspension by the Court; or (3) Probation by the Court in lieu of or subsequent to suspension, on such terms as the Court may designate; or (4) Censure and reprimand by the Court; or (5) Temporary suspension by the Court; or (6) Private reprimand by the Committee on Inquiry or Disciplinary Review Board. (B) The Court may, in its discretion, impose one or more of the disciplinary sanctions set forth above. See, also, Neb. Ct. R. § 3-310(N) (rev. 2019). [2] To determine whether and to what extent discipline should be imposed in an attorney discipline proceeding, we consider the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the respondent generally, and (6) the respond­ ent’s present or future fitness to continue in the practice of law. State ex rel. Counsel for Dis. v. Birch, supra. [3,4] Ordinarily, cumulative acts of attorney misconduct and repeated disregard of requests for information from the Counsel for Discipline will appropriately lead to disbarment. State ex rel. Counsel for Dis. v. Sutton, 269 Neb. 640, 694 - 258 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. NELSON Cite as 311 Neb. 251 N.W.2d 647 (2005). Responding to disciplinary complaints in an untimely manner and repeatedly ignoring requests for information from the Counsel for Discipline of the Nebraska Supreme Court indicate a disrespect for our disciplinary jurisdiction and a lack of concern for protecting the public, the profession, and the administration of justice. Id. [5] With respect to the imposition of attorney discipline, each attorney discipline case must be evaluated in light of its particular facts and circumstances. See State ex rel. Counsel for Dis. v. Birch, supra. For purposes of determining the proper discipline of an attorney, we consider the attorney’s acts, both underlying the events of the case and throughout the proceeding, as well as any aggravating or mitigating factors. Id. The Counsel for Discipline argues that Nelson’s acts and omissions set forth in the formal charges violated his oath of office as an attorney licensed to practice law in the State of Nebraska as provided by § 7-104, as well as the following Nebraska Rules of Professional Conduct: §§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4 (client communications), 3-508.1 (failure to respond to disciplinary authority), and 3-508.4(a) and (d) (misconduct). The Counsel for Discipline contends that disbarment or indefinite suspension is the appropriate sanction because of the harm Nelson caused to his clients, his continued violation of the disciplinary rules after his prior suspension in 2018, and his failure to respond to inquiries from the Counsel for Discipline regarding his clients’ grievances. As aggravating factors, the Counsel for Discipline notes that Nelson has previously been disciplined; in particular, he was suspended for nearly 6 months after he failed to satisfy the mandatory continuing legal education reporting requirements for 2017. During the period of that suspension, he failed to inform the courts of his suspension and failed to withdraw as counsel in the five cases encompassed by the formal charges. The facts established by our order granting judgment on the pleadings show that Nelson violated the disciplinary rules in - 259 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. NELSON Cite as 311 Neb. 251 five separate incidents involving noncompliance and lack of communication with clients and with the courts. During these proceedings, Nelson has failed, and continues to fail, to comply with efforts by the Counsel for Discipline to investigate the grievances. This represents a pattern of noncompliance with our disciplinary rules, and cumulative acts of attorney misconduct are distinguishable from isolated incidents, therefore justifying more serious sanctions. See State ex rel. Counsel for Dis. v. Samuelson, 280 Neb. 125, 783 N.W.2d 779 (2010) (disbarring attorney who abandoned legal matters of his clients and mismanaged their funds). As aggravating factors, the facts show that because of Nelson’s neglect, each of the clients identified above was left without counsel and several clients suffered financial consequences as a result. Nelson’s neglect caused the estate of Dorothy and the estate of Altmaier to be assessed $7,415.81 and $11,409.18, respectively, in penalties and interest. Nelson’s neglect of the Trampe case and the Kring estate case caused them to be dismissed. [6] We are unable to acknowledge mitigating factors because we lack any record on the question. We are troubled by Nelson’s failure to respond to the Counsel for Discipline. In the present disciplinary process, Nelson has failed to correspond with the Counsel for Discipline, failed to respond to the formal charges by way of an answer, and failed to brief the issue of discipline as directed by this court. We have stated that responding to inquiries and requests for information from the Counsel for Discipline is an important matter, and an attorney’s cooperation with the discipline process is fundamental to the credibility of attorney disciplinary proceedings. See, State ex rel. Counsel for Dis. v. Gast, 298 Neb. 203, 903 N.W.2d 259 (2017); State ex rel. Counsel for Dis. v. Tonderum, 286 Neb. 942, 840 N.W.2d 487 (2013). By failing to file an answer to the formal charges, Nelson missed the opportunity to enlighten us about the existence of any mitigating factors, as well as his current or future fitness to practice law. Failing to participate - 260 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. NELSON Cite as 311 Neb. 251 in the disciplinary process is a very serious matter. State ex rel. Counsel for Dis. v. Gast, supra. We have stated that an attorney’s unwillingness or inability to respond to the charges “indicate[s] a disrespect for the court’s disciplinary jurisdiction.” State ex rel. Counsel for Dis. v. Samuelson, 280 Neb. at 129, 783 N.W.2d at 783. [7] We have disbarred attorneys who have repeatedly neglected clients’ matters. See, e.g., State ex rel. Counsel for Dis. v. Samuelson, supra (disbarring attorney who abandoned legal matters of his clients and mismanaged their funds); State ex rel. Counsel for Dis. v. Coe, 271 Neb. 319, 710 N.W.2d 863 (2006) (disbarring attorney who neglected five cases and stopped participating in disciplinary proceedings); State ex rel. Counsel for Dis. v. Hart, 270 Neb. 768, 708 N.W.2d 606 (2005) (disbarring attorney who had a pattern of neglecting client matters and failed to communicate with the Counsel for Discipline). We have also found that an attorney’s continuing to practice law contrary to a temporary suspension order is an independent basis for disbarment from the practice of law. State ex rel. Counsel for Dis. v. Villarreal, 267 Neb. 353, 673 N.W.2d 889 (2004). [8] The purpose of a disciplinary proceeding against an attorney is not so much to punish the attorney as it is to determine whether it is in the public interest that an attorney be permitted to practice, which question includes considerations of the protection of the public. State v. Jorgenson, 302 Neb. 188, 922 N.W.2d 753 (2019). Nelson’s violations negatively affected legal proceedings on behalf of at least five clients, and they undermine the public’s confidence in the bar and its members to be dependable and capable in the representation of clients. [9] We are aware that in the past we have occasionally imposed an indefinite suspension on attorneys who had violated the disciplinary rules or failed to communicate with the Counsel for Discipline and this court. See, e.g., State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30, 886 N.W.2d - 261 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. NELSON Cite as 311 Neb. 251 530 (2016). Ordinarily, indefinite suspension of an attorney’s license to practice law is not consistent with our duty to protect the public. We are without knowledge of mitigating circumstances which would give us an opportunity to assess Nelson’s future ability to practice law. In view of the facts that have been established—Nelson’s prior discipline and his silence in connection with the current matter—the sanction of disbarment in this case falls squarely within the principles we have recited above. We therefore determine that the appropriate discipline in this matter is disbarment.",analysis
+271,4217606,1,3,"[2,3] Before proceeding to the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.13 FCID claims that the district court, acting as an intermediate appellate court, erred when it considered and granted the defendants’ motion to dismiss for lack of subject matter jurisdiction. However, lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.14 [4] In this case, the State has raised two issues regarding subject matter jurisdiction: whether FCID has standing to challenge the IMP’s15 and whether the district court had subject matter jurisdiction under § 46-750 or § 84-911(1). Because we conclude that FCID lacks standing to challenge the IMP’s, we do not reach the second issue. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.16 [5,6] To have standing, a litigant first must clearly demonstrate that it has suffered an injury in fact.17 That injury must 12 Zapata v. McHugh, 296 Neb. 216, 893 N.W.2d 720 (2017). 13 Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009). 14 Davis v. Choctaw Constr., 280 Neb. 714, 789 N.W.2d 698 (2010). 15 See In re Invol. Dissolution of Wiles Bros., 285 Neb. 920, 924, 830 N.W.2d 474, 478 (2013) (“[t]he defect of standing is a defect of subject matter jurisdiction”). 16 Selma Development v. Great Western Bank, 285 Neb. 37, 825 N.W.2d 215 (2013). 17 Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788 N.W.2d 252 (2010). - 1004 - Nebraska Supreme Court A dvance Sheets 297 Nebraska R eports FRENCHMAN-CAMBRIDGE IRR. DIST. v. DEPT. OF NAT. RES. Cite as 297 Neb. 999 be concrete in both a qualitative and temporal sense.18 A complainant must allege an injury to itself that is distinct and palpable, as opposed to merely abstract, and the alleged harm must be actual or imminent, not conjectural or hypothetical.19 FCID claims it has standing because the IMP’s, which allow for increased ground water pumping, will deprive it of waters that would otherwise be available for its operations. In its petition for review, FCID alleges in part that increased ground water pumping will “interfere with stream recharge and flow . . . and [will] diminish surface waters otherwise subject to capture and diversion for use by FCID to fill its priority flow permits.” FCID further alleges that the reduced streamflow will cause it to have to modify its budget and operations and to “attempt to negotiate for relief [for defaulting] from its obligations to [the Department of the Interior] and [the Bureau of Reclamation].” We have previously considered the issue of standing in the water dispute case of Central Neb. Pub. Power Dist. v. North Platte NRD.20 In that case, we held that an irrigation district did not adequately allege how its particular water use interest had been injured by an order of an NRD when it merely alleged that the order would cause a reduced water supply. In other words, the irrigation district failed to state how a reduced water supply would cause it harm. Here, however, FCID has additionally alleged that the reduced water supply would cause it to have to modify its budget and operations and to negotiate for relief for breaching its contracts. Thus, FCID argues that this case is distinguishable from Central Neb. Pub. Power Dist., because its petition contains more specific allegations of harm than those in that case. However, although FCID alleges more specific allegations of harm than those alleged in Central Neb. Pub. Power 18 Id. 19 Id. 20 Id. - 1005 - Nebraska Supreme Court A dvance Sheets 297 Nebraska R eports FRENCHMAN-CAMBRIDGE IRR. DIST. v. DEPT. OF NAT. RES. Cite as 297 Neb. 999 Dist., that additional alleged harm does not occur unless the IMP’s actually decrease the water supply. And, as the defend­ ants point out, the IMP’s do not by themselves cause more ground water to be pumped. Instead, IMP’s are simply jointly developed plans for how water will be managed.21 Although the IMP’s set forth the water controls that may be employed in times of water shortage, the IMP’s themselves do not actually implement the controls. Instead, for those controls to be implemented, the NRD’s must determine that such controls are necessary and issue subsequent orders pursuant to § 46-715 and Neb. Rev. Stat. §§ 46-718(2) and 46-739 (Reissue 2010). This conclusion can be drawn not only from the three statutory sections above, but from the IMP’s themselves. For example, within the IMP developed by the Department and the Middle Republican NRD, it states, “In accordance with Neb. Rev. Stat. § 46-715, one or more of the ground water controls authorized by Neb. Rev. Stat. § 46-739 and Neb. Rev. Stat. § 46-740 shall be adopted for the purpose of implementing this plan.” In the IMP developed by the Department and the Upper Republican NRD, as well as the IMP developed by the Department and the Lower Republican NRD, it states that “[t]he [NRD] will utilize the ground water controls as provided by Neb. Rev. Stat. §§ 46-715, 46-739, and 46-740 to form the Ground Water Controls component of this IMP.” Section 46-739 authorizes the NRD to issue the actual order that would limit the water usage by appropriators. Before orders are issued pursuant to § 46-739, the IMP’s contemplate that reviews of the water usage must be necessary. All of the IMP’s at issue state that the “ground water depletions are maintained within their portion of Nebraska’s Allowable Ground Water Depletions as computed through use of the Republican River Compact Administration Ground Water Model” and that “voluntary reductions in baseline 21 See § 46-715. - 1006 - Nebraska Supreme Court A dvance Sheets 297 Nebraska R eports FRENCHMAN-CAMBRIDGE IRR. DIST. v. DEPT. OF NAT. RES. Cite as 297 Neb. 999 pumping volumes will continue to be pursued by the [NRD] with the incentive of limiting the level of long-term management actions that are necessary during Compact Call Years.” Finally, under the “Compliance Standards” section of each IMP, it states that “[o]n an annual basis the [Department] and [NRD] shall reexamine the sufficiency and effectiveness of the Compliance Standards to determine if amendments or modifications are necessary to ensure the State’s compliance with the [Final Settlement Stipulation] and Compact.” These examples reflect that the IMP’s call for an annual review and that based upon the review, additional orders could be issued as needed. If and when such orders are issued, FCID would then have the right to seek judicial review depending upon the issue in question and the nature of the order. Our conclusion that FCID has failed to show that the IMP’s have caused an injury-in-fact is also supported by the Eighth Circuit’s decision in Sierra Club v. Robertson.22 That case involved a challenge to a land and resource management plan under the National Forest Management Act of 1976. In Sierra Club, the plaintiffs challenged the plan, alleging that the amount and method of timber harvesting permitted by the plan caused environmental or aesthetic harm, in violation of the National Forest Management Act of 1976 and the National Environmental Policy Act of 1969. But because the latter act required an additional stage of site-specific analysis before any timber could actually be cleared, the Eighth Circuit held that the asserted injury was not sufficiently imminent at the initial forest planning stage to create an injury in fact and that thus, the plaintiffs failed to establish standing.23 Similarly, here, FCID’s asserted injury is not sufficiently imminent because in order for the water controls set forth in the IMP’s to be implemented, the NRD would have to determine that such controls were necessary and issue subsequent orders. 22 Sierra Club v. Robertson, 28 F.3d 753 (8th Cir. 1994). 23 Id. - 1007 - Nebraska Supreme Court A dvance Sheets 297 Nebraska R eports FRENCHMAN-CAMBRIDGE IRR. DIST. v. DEPT. OF NAT. RES. Cite as 297 Neb. 999 Accordingly, we conclude that FCID has failed to establish standing and that as a result, this court lacks jurisdiction.24 Therefore, we dismiss the appeal. Because we conclude that FCID lacks standing to challenge the IMP’s, we need not reach the second jurisdictional question.25",analysis
+272,1285642,1,1,"Kendrick Davis worked as a barber at Kelly's. On the morning of March 14, 1996, he arrived at work around 6:10 a.m. Mr. Kelly was already cutting a customer's hair and another customer, Leon Poole, was waiting. After confirming that Mr. Poole did not need his services, Davis sat down with a cup of coffee to read the newspaper. As Mr. Kelly's first customer was walking out the door, Davis overheard someone ask for the time. A few minutes later, Davis lowered his newspaper and saw a black man wearing a toboggan cap standing in front of him with a gun. The man told him it was a holdup and instructed him to get up and go to the back room. At trial, Davis identified the man as appellant. Davis tapped Mr. Kelly on the shoulder and told him they were being robbed. Mr. Kelly and Mr. Poole, who were both in their 70's, were slow-moving. Davis led them to the back room which was very small and narrow. When they reached the back room, appellant ordered them back to the front where he told them to get on their knees and throw their wallets out on the floor. At this point, appellant pulled his cap down over his face. Mr. Kelly fumbled getting his wallet out and appellant ordered them to hurry up. Finally, appellant told them to get up and go back to the room at the back of the shop. Davis again led the way. Appellant ordered the three men onto their knees with their hands behind their heads. Davis heard one shot, then another. The third shot struck him in the left thumb and the back of the neck. Davis lay on the floor and waited there several minutes. Mr. Poole, who weighed about 200 pounds, had fallen on top of him and they were all three lying in a pool of blood. Davis had some difficulty getting up but he was finally able to reach the telephone and dial 911. Police arrived shortly thereafter and transported Davis to the hospital where he was interviewed almost immediately. Davis gave a description of the assailant as a black male in his mid-twenties, medium build, about 5'10. He gave a similar description later that day except he added that the perpetrator had a thin mustache. On March 15, Davis met with a forensic artist who developed a composite drawing based on Davis's description of the assailant. Meanwhile, SLED analyzed three bullets from the barbershop crime scene and concluded they had been shot from the same gun that was used to kill a cab driver at a shopping mall in Richland County on February 19. During this time, appellant was living with his sister, Glenda Love, in Eau Claire. He moved in with her after his release from prison on February 2, 1996. Appellant, who was an aspiring rap artist, had legally changed his name to King Justice. He worked part-time for a janitorial service. Appellant was not at home in the early morning hours of March 14. Love did not speak with him until early that evening when he asked if she had heard about the barbershop shooting. During the next few days, Love noticed a newspaper article about the killings in which someone had highlighted the words execution style. She noticed that other articles had been clipped from her newspapers. Love saw the composite drawing of the suspect in the paper and thought it looked like appellant. She also thought the description of the hat and coat worn by the suspect matched appellant's. At some point, she found shoes wrapped up in a brown leather jacket. Finally, on March 27, she found a gun in a shopping bag in her house. Love became alarmed and alerted police. The next day, March 28, police executed a search warrant at the Love residence but found nothing relevant except the newspaper clippings and a ski cap with two holes in it. Love testified she never saw the gun again. Nothing further happened in the investigation of this case until October 1996. On October 3, officers executed a search warrant in an unrelated case at the residence of Lamont Hilliard on House Street in Columbia. They were looking for stolen goods reportedly at that location. During the search, police confiscated a .38 caliber Smith & Wesson handgun. SLED subsequently matched this gun to the bullets from the barbershop and cab driver murders. As a result, Lamont Hilliard was interviewed by police. Hilliard told police he got the gun from Bernard Johnson in May 1996. Police then interviewed Bernard Johnson who stated he bought the gun on the street in November 1995 and gave it to appellant shortly after appellant got out of prison around the end of January 1996. Appellant returned the gun to Johnson in May or June 1996, and Johnson left it with Hilliard. Johnson told police appellant said he had used the gun to commit the barbershop murders. [1] The same day Johnson was interviewed, police had appellant transported from Greenville where he was incarcerated on another charge. Appellant admitted receiving Johnson's.38 in February of 1996 but claimed not to remember how long he had possessed it. Police then executed a search warrant at Glenda Love's residence where appellant had been living. They found the name Virgil Howard on some letters addressed to appellant and ascertained that Virgil Howard was an inmate. Prison officials then confiscated letters written by appellant from Howard's cell. Appellant stipulated he wrote these letters. The first letter reads as follows: Yo, Peace G, I got everything, even two letters from you. Things have been slow, but send them flicks because next time you write, my check will be cashed by then. I'm working with a janitorial service, so I can pay the payroll officers. Bust it. You know this shit ain't me. I got to have a backup when my licks don't go over. Read my last letter, you'll see where I told you about the Cee-Allah-Born. That didn't come out right because he tried to stag, so I sent him to the essence. You've heard about it. It was the one down by the mall last month.... Now that I got my God-U-Now back, I'm about to get busy tonight, March 1st ... I $300 (sic) for the demo tape, so someone's got to go. Law enforcement officials familiar with a code used by inmates testified that Cee-Allah-Born means cab, God-Now means gun, licks means robbery, and to stag means to resist. There was only one cab driver murder in the first three months of 1996 and it was the one matched to the .38. The second letter reads as follows: Yo, Peace G, Yo, Black, I'm telling you, shit ain't so swift as I thought. The licks that I thought were going to put me on turn out to be locked down with Self-Allah-Father-Equality. So I just got small change. But I'm about to make a mad move Tuesday night 20th, that's going to put me on or put me away. Things are looking up for my music goals. I'm meeting with this kid that works in the music department for Black Newspaper. He gone to the Soul Train Music Awards, but he'll be back Monday.... I've got this bull-shitting job so I can buy some things for my capers on them devils Tuesday. The lyrics aren't all that sharp, but the beat is going to be the shit. I had to leave your stuff in my folder in the jail with this God Body because I was licking that night, but I'm sending for it now. Write Shabazz and tell him what's up but keep the caper between us, all right? Yo, Black, hang in there with me. I'm striving hard to get on and stay out at the same time. So I haven't forgot you, I've just been making a lot of moves. Write when you get this. Peace, King Justice. I got the stamps and envelopes from a lick I made. If I send one too many, just keep it for yourself. Law enforcement translated Self-Allah-Father-Equality as meaning safe. There was an unopened safe at the barbershop. Finally, inmate Dan Temple testified that appellant told him while they were incarcerated together that he (appellant) was charged with the barbershop murders, that one of the victims had lived, and that he wished he had shot him again.",facts
+273,1994101,2,1,"[¶ 6] Before addressing the merits of the firm's appeal, we must first decide whether we have the authority to entertain it. Ordinarily, the Maine Bar Rules require that a motion to quash a subpoena issued by Bar Counsel be resolved by the Board: The Board, the Grievance Commission or the Chair of any panel thereof, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may quash or modify any subpoena issued for appearance before Bar Counsel, the Board, the Grievance Commission or panels thereof, if the subpoena is unreasonable or oppressive. M. Bar R. 7.3(m)(1). The Rule does not contemplate this Court ruling on a motion to quash, at least before the Board has done so, regardless of the parties' wishes or agreement to use an alternate procedure. [¶ 7] Furthermore, we have said that we do not permit appeal from the denial of a motion to quash. Instead, the witness must appear . . . and testify or risk a finding of contempt. Only upon a judgment of contempt . . . is the issue ripe for appeal. In re Willoughby, 487 A.2d 636, 638 (Me.1985); see State v. Grover, 387 A.2d 21, 22 (Me.1978). In this case, however, notwithstanding the required procedure that a party seeking to challenge a subpoena issued by Bar Counsel must ordinarily follow, we find, as both Bar Counsel and the firm urge, that we have the inherent authority to decide this appeal. We further conclude that in these unusual circumstances we should do so. [¶ 8] Absent exceptional circumstances, we will honor our procedural rules. In re Application of Feingold, 296 A.2d 492, 496 (Me.1972). Nevertheless, this Court has the inherent and ultimate authority, independent of any rule, to regulate the practice of law and the conduct of attorneys in this State. See id. ; Board of Overseers of the Bar v. Lee, 422 A.2d 998, 1002 (Me.1980) (the ultimate power to regulate the conduct of attorneys is inherently in the judicial department). The Rules themselves recognize this fundamental principle: Any attorney admitted to, or engaging in, the practice of law in this State shall be subject to the Court's supervision and disciplinary jurisdiction. . . . M. Bar R. 1(a). Ordinarily, the Court's authority with respect to the Bar Rules may be exercised by a single justice, subject to appropriate review by the Law Court. M. Bar R. 1(d). The more uncertain issue before us is not whether we have the authority to decide the firm's appeal, but whether we should choose to exercise that power under these circumstances. [¶ 9] For several reasons, we conclude that given the unusual procedural posture of this case, and the importance of the privilege at issue, we should reach the merits. See Fiber Materials, Inc. v. Subilia, 2009 ME 71, ¶ 31, 974 A.2d 918, 928 (discussing importance of attorney-client privilege). In most cases, the person or entity interested in quashing a subpoena is the one compelled to act, either by testifying or by producing documents or other evidence. Here the person subpoenaed by Bar Counsel, Attorney Libby, is willing to comply. The firm, which is the entity with the claim of attorney-client privilege at stake, cannot disobey the subpoena because it did not receive a subpoena. The only procedural mechanism for effectively protecting the firm's privilege claim is the one it chose—moving to quash Libby's subpoena before he could comply with it. [2] [¶ 10] Bar Counsel, having agreed to bring the motion to quash before the single justice, argues that even though this Court has the power to hear the firm's appeal from the single justice's decision, we should nonetheless dismiss it as interlocutory. It is well-established that [o]rdinarily, the final judgment rule prevents a party from appealing a . . . court's decision on a motion before a final judgment has been rendered. Id. ¶ 12, 974 A.2d at 924. However, one of the recognized exceptions to the rule, the death knell exception, allows an interlocutory appeal to be heard if substantial rights of a party will be irreparably lost if review is delayed until final judgment. Id. ¶ 14, 974 A.2d at 924 (quotation marks omitted). A right is irreparably lost if the appellant would not have an effective remedy if the interlocutory determination were to be vacated after a final disposition of the entire litigation. Id. (quotation marks omitted). Stated differently, if an interlocutory order has the practical effect of permanently foreclosing relief on a claim, that order is appealable. Id. (quotation marks omitted). [¶ 11] Here, the firm seeks to protect information it claims is privileged, and that is not yet known to anyone outside of the firm other than its former general counsel. If we do not address the denial of the firm's motion to quash now, the information will become known to Bar Counsel. That is a result that cannot be undone on direct appeal following a final judgment. This situation is not analogous to the one we analyzed in Lewellyn v. Bell, where, in the face of a claim that documents sought pursuant to a motion to compel were protected by attorney-client privilege, we held that no exception to the final judgment rule applied, in part because it is uncertain what information, if any, will be required to be disclosed . . . [therefore] the asserted harms are merely speculative. 635 A.2d 945, 947 (Me.1993). In this case, the single justice reviewed all of the documents sought by Bar Counsel's subpoena in camera and found, not as a matter of speculation but as a matter of fact, that they are potentially damaging. Because the firm stands to irreparably lose a substantial right if we do not hear its appeal, the death knell exception to the final judgment rule applies. [¶ 12] Finally, we elect to reach the merits of the firm's appeal now in the interest of judicial economy because the motion has already been decided by the single justice, and the issues have been fully briefed. As a practical matter, it makes little sense to remand the motion back to the Board, given the substantial likelihood that we would then be called upon to decide the same issues in the near future. See, e.g., Amica Mut. Ins. Co. v. Estate of Pecci, 2008 ME 93, ¶ 4 n. 1, 953 A.2d 369, 371 (stating that, notwithstanding parties' failure to comply with customary procedure, [a]s a matter of judicial economy . . . we address the issues on appeal); Lewis v. Town of Rockport, 2005 ME 44, ¶ 11 n. 4, 870 A.2d 107, 110 (We proceed to the merits in the interest of judicial economy and because the parties have thoroughly briefed all issues.).",jurisdiction
+274,4221387,1,1,"Marilyn Waldron brought this action pursuant to 42 U.S.C. § 1983 (2012), alleging a violation of her Fourth Amendment rights by Lancaster County Deputy Sheriff James Roark when - 29 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports WALDRON v. ROARK Cite as 298 Neb. 26 he entered Waldron’s home to serve a warrant on Waldron’s grandson, Steven Copple. Waldron argues that in doing so, Roark violated the knock-and-announce rule. Waldron also argues that her arrest was unreasonable and unconstitutional because there was no probable cause to arrest her and because Roark used excessive force in handcuffing her. In Waldron v. Roark (Waldron I),1 we found that material issues of fact existed as to Waldron’s knock-and-announce and excessive force claims and remanded the cause. On remand, following additional argument on the issues of qualified immunity and sovereign immunity, the district court again granted Roark’s motion for summary judgment, on the basis that Roark was entitled to qualified immunity. In this appeal, we now analyze Waldron’s claims within the framework of the affirmative defense of qualified immunity. Because we find that Waldron did not meet the burden of showing that Roark violated a clearly established right in any of Waldron’s claims, we affirm the district court’s grant of qualified immunity.",introduction
+275,888399,1,1,"¶4 Larry Semenza (“Semenza”) is a livestock dealer doing business in Montana as Semenza Cattle Company. Don Kniss (“Kniss”) is an Oklahoma resident who has bought and sold cattle, but is not a registered or bonded dealer. The two were introduced through a mutual business acquaintance, Harold Sagers (“Sagers”). Semenza agreed to sell Kniss cattle from the Broken O Ranch in Montana. Semenza shipped the cattle to Kniss in Oklahoma. Semenza was paid for the transaction through a $147,400 wire transfer from an Oklahoma corporation called Stockman’s Livestock Order Buying, Inc. ¶5 Several months later, Semenza and Kniss entered into a second cattle deal. Semenza agreed to sell 92 cows to Kniss for $950/head, or $87,400 total. Semenza shipped the cattle to Kniss in Okalahoma, and received a wire transfer from Stockman’s for $35,000. Semenza believes he is still owed $52,400. ¶6 Initially, Semenza filed a reparation complaint with the United States Department of Agriculture. The USDA initiated an investigation, and took several affidavits, which are appended to Appellee Stockman’s brief. However, before the USDA concluded its 2 investigation, Semenza filed this suit in the Ninth Judicial District Court in Montana. Since Semenza elected to seek relief through the state judicial system, the USDA dismissed his complaint. Semenza filed breach of contract claims against both Kniss and Stockman’s, arguing that Kniss acted as Stockman’s agent. Only Stockman’s answered. ¶7 The District Court granted Stockman’s motion for summary judgment. The court found that no writing existed regarding either of the two cattle transactions. Since the sale of the cattle was covered by the U.C.C., and the purchase price exceeded $500, the oral contract was not enforceable unless there was a writing satisfying the statute of frauds. The court found that Semenza failed to produce such a writing, and thus held that the agreement was unenforceable. ¶8 The court also found that Semenza failed to produce a writing which gave Kniss the authority to act as Stockman’s agent. Section 28-10-203, MCA, provides that when the law requires a contract to be in writing, an agent’s authority to enter into that contract on behalf of the principal must also be bestowed in writing. Thus, the District Court found that Semenza could not enforce the purported oral contract against Stockman’s. ¶9 Absent an agency relationship between Kniss and Stockman’s, the District Court found that it had no personal jurisdiction over Stockman’s. After granting Stockman’s motion for summary judgment, the District Court dismissed Semenza’s complaint with prejudice, and awarded Stockman’s its costs and attorney’s fees.",facts
+276,2634525,1,1,[¶ 2] The issue now before this Court is whether there were genuine issues of material fact as to the existence of a junkyard and illegal residence that precluded summary judgment. We find that issues of fact do exist and reverse and remand.,issues
+277,6353513,1,1,"In this case, we again consider the right to an abortion under the Iowa Constitution. The right to an abortion under the Federal Constitution is framed by two landmark cases: Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Roe first recognized a federal constitutional right to an abortion. 410 U.S. at 153. Casey, in a plurality opinion, held that regulations and restrictions on abortion before viability should be evaluated under an undue burden test. 505 U.S. at 878–79. In 2015, this court applied the federal Casey undue burden test under the Iowa Constitution. See Planned Parenthood of the Heartland, Inc. v. Iowa Bd. of Med. (PPH I), 865 N.W.2d 252, 269 (Iowa 2015). We found that a statewide ban on telemedicine medication abortions, adopted by the board of medicine when it was otherwise approving the use of telemedicine, violated the Iowa Constitution. Id. Notably, Planned Parenthood had wanted us to recognize a state constitutional right to abortion that was broader than the federal constitutional right. Id. at 262 n.2. We did not reach that issue because we found the telemedicine ban was unconstitutional even under the federal undue burden test, a test that the State had conceded was applicable under the Iowa Constitution. Id. at 262–63. Three years later, in Planned Parenthood of the Heartland v. Reynolds (PPH II), we confronted a mandatory 72-hour waiting period for abortion that the legislature had enacted in 2017. 915 N.W.2d 206, 220–21 (Iowa 2018). This time 6 we rejected the undue burden test. Id. at 240. Instead, we found that the Iowa Constitution—specifically, the due process clause—protected abortion as a fundamental right. Id. at 237–38. We determined that the waiting period could not survive strict scrutiny under that test and struck it down as unconstitutional. Id. at 244. In 2020, in the waning hours of a legislative session that had been disrupted by COVID-19, the general assembly added a mandatory 24-hour waiting period for abortion to pending legislation limiting courts’ ability to withdraw life-sustaining procedures. The 24-hour waiting period involved the same period of time that the United States Supreme Court had upheld in Casey. 505 U.S. at 844. Yet Planned Parenthood sued successfully in district court to block the statute from taking effect. The district court granted summary judgment to Planned Parenthood on two alternative grounds. First, it reasoned that the 2020 legislation violated the single-subject rule of the Iowa Constitution (article III, section 29) and, second, it concluded that our decision in PPH II invalidating a 72-hour waiting period had issue preclusive effect. The State appeals. It argues that the 2020 legislation did not embrace more than “one subject, and matters properly connected therewith.” Iowa Const. art. III, § 29. It also argues that issue preclusion doesn’t apply and doesn’t bar the State from seeking to overrule PPH II. Today, we decide only the issues that the parties have presented to us in the current procedural posture of the case. On the single-subject rule, we conclude that a limit on abortion and a limit on withdrawing life-sustaining 7 procedures both pertain to the subject of “medical procedures,” as stated in the bill’s title. Therefore, no violation of the single-subject rule took place. As to issue preclusion, we agree with the State that a 72-hour waiting period and a 24-hour waiting period are not identical. We also agree that issue preclusion does not bar a state’s highest court from revisiting its decision on a broad question of constitutional law such as the right to an abortion. And, finally, we hold that any subsidiary fact-findings we made in PPH II occurred within a constitutional framework that placed every burden of persuasion and proof on the State. If we overrule that broad constitutional framework, as the State urges, the findings cannot have preclusive effect. Accordingly, after carefully considering the parties’ arguments, we decide that PPH II can and should be overruled. Although we overrule PPH II, and thus reject the proposition that there is a fundamental right to an abortion in Iowa’s Constitution subjecting abortion regulation to strict scrutiny, we do not at this time decide what constitutional standard should replace it. As noted, in PPH I, we applied the undue burden test under our constitution when the State conceded that it applied. An amicus curiae argues that we should hold that the rational basis test applies to abortion regulations. But the State takes no such position; it simply asks that PPH II be overruled and stops there. Moreover, the State did not seek summary judgment below (except as to the single-subject rule); it argued only that Planned Parenthood should not prevail as a matter of law based on issue preclusion. 8 In addition, we are not blind to the fact that an important abortion case is now pending in the United States Supreme Court. See Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021) (Mem.) (granting certiorari). That case could alter the federal constitutional landscape established by Roe and Casey.1 While we zealously guard our ability to interpret the Iowa Constitution independently of the Supreme Court’s interpretations of the Federal Constitution, the opinion (or opinions) in that case may provide insights that we are currently lacking. Hence, all we hold today is that the Iowa Constitution is not the source of a fundamental right to an abortion necessitating a strict scrutiny standard of review for regulations affecting that right. For now, this means that the Casey undue burden test we applied in PPH I remains the governing standard. On remand, the parties should marshal and present evidence under that test, although the legal standard may also be litigated further. Accordingly, we reverse the district court’s grant of summary judgment to Planned Parenthood and remand for further proceedings consistent with this opinion.2 1The Supreme Court has granted certiorari on “Question1 presented by the petition.” Dobbs, 141 S. Ct. at 2620. That question presented the issue of “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” Petition for Writ of Certiorari, Dobbs v. Jackson Women’s Health Org., ___ S. Ct. ___, ___ (2022) (No. 19–1392), 2020 WL 3317135, at i. The petitioners ask that Roe and Casey be overruled. See id. at ___ n.1, 2020 WL 3317135 at  n.1. 2In parts IV.A–B, this opinion speaks for a six-justice majority of this court. In parts IV.C–E, this opinion speaks for a five-justice majority of this court. Part IV.F is joined by a",introduction
+278,2640527,1,3,"¶ 39 This opinion should not be read as a rubber stamp for any decision the Legislature might make on the amount of fees levied in association with jury trials. The Oklahoma Constitution does not anticipate that litigants will be burdened with the entire bill for maintenance of the court system. [71] Our research indicates that Oklahoma's jury trial charges may be the highest in the nation to have been put to the reasonableness test. [72] The constitutional right to a jury trial is a personal right [73] which the Legislature cannot waive [74] through creating a fiscal barrier so unreasonable as to eliminate the right itself. When comparing the jury fee charge with a jury proceeding utilizing 6 jurors, it would appear that the $349.00 fee charge approaches the barrier beyond which the charge could not survive constitutional scrutiny. ¶ 40 Nevertheless, we recognize that a statute is the solemn act of the Legislature. [75] Although the Supreme Court is the protector of the constitution, [76] in construing the constitutionality of a statute we are not authorized to consider its propriety, wisdom, or practicability as a working proposition. Those questions are clearly and definitely established by our fundamental law to a certainty as functions of the legislative department. [77] This Court has a duty to interpret statutes to make their application constitutional rather than unconstitutional. [78] We uphold legislative enactments unless the statute is clearly, palpably and plainly inconsistent with the constitution. [79] ¶ 41 Applying these principles, considering Oklahoma jurisprudence and the majority position, we hold that the collection of a jury fee, as contemplated by 28 O.S. Supp.2004 § 152.1(A)(7), [80] is constitutional under art. 2, §§ 6 [81] and 19 of the Oklahoma Constitution. We also determine that the amount of the fee, $349.00, is reasonable when compared with the costs incurred in conducting jury proceedings generally. Finally, we determine that the $349.00 jury fee is not subject to refund if jury services are not utilized. [82]",conclusion
+279,1345635,1,11,"We conclude that Overby's testimony describing B.R.'s conduct, which was relayed to her by B.R.'s foster mother, was admissible under § 27-803(3). We further conclude that the juvenile court did not err in overruling Billy's motion to dismiss at the close of the State's evidence and that the court properly found that the allegations contained in the supplemental petition were true by a preponderance of the evidence. AFFIRMED. Connolly, J., participating on briefs.",conclusion
+280,2135655,1,1,"On October 27, 1988, defendant was an inmate at Stateville Correctional Center. He was assigned to work in the dining room and was expected to report between 5 and 5:30 a.m. Testimony revealed, however, that defendant did not show up for work on this date. Gary Adams, an employee supervisor at Stateville, testified that on the morning of October 27, 1988, he saw the defendant in the area of the commissary and it appeared as if he was hiding something behind his back. Jessie and James White, two additional Stateville employees, testified that at about 6:40 a.m. on October 27, 1988, they were walking down the main tunnel toward the commissary. As they approached the commissary, the Whites saw a cap belonging to Suon Troeng on the ground. Troeng, a Stateville employee, was assigned to open the commissary on that day. Next, Jessie White saw an inmate come down the tunnel and jump over one of the side walls. The Whites looked over the wall and saw an inmate crouched over in the corner of the grass. When they asked him what he was doing, the inmate, whom Jessie White later identified as the defendant, jumped over the wall and started running with a large plastic bag over his shoulder. James White ran after the defendant and called at two correctional officers for help. As the defendant was running, he dropped the plastic bag and a set of keys. The officers caught the defendant and recovered the bag and the keys. Inside the bag were loose cartons of cigarettes. While the defendant was being chased, Jessie White ran into the commissary for help. She noticed that the commissary was in disarray, with bags strewn around and open cigarette cartons on the floor. When Jessie White came back out of the commissary, she found Troeng's body. An iron bar was found near the body, and it was subsequently determined that Troeng died from a severe head injury due to blunt-force trauma. Richard Williams testified that on October 27, 1988, he was the correctional sergeant in unit 1, a segregation unit separated from the general prison population. Following the defendant's apprehension, defendant was brought into unit 1 and strip searched by Williams. Among the items taken from the defendant were State-issued work boots and a blue jumpsuit. The jumpsuit had stains on the knee and thigh areas which appeared to be bloodstains. A partial shoe impression was found on a paper sack on the floor of the commissary. Walter Sherk, an expert in footprint comparisons, testified that he compared the footwear impression on the paper sack with the boots recovered from the defendant. He stated that while the boots recovered from the defendant were standard issue at the Department of Corrections, the impression was consistent with defendant's right boot. In looking for defendant's fingerprints at the scene, his prints were found on two separate plastic bags. Judie Welch, an expert in forensic serology, testified that she compared blood samples of Troeng and the defendant with blood found on an iron bar found at the scene, a jumpsuit taken from the defendant, and a pair of pants taken from the defendant. Welch's conclusions were that the bloodstains found on the iron bar and the jumpsuit could have originated from Troeng, but not the defendant. The bloodstain on the pants, however, could have originated from the defendant, but not Troeng. During the second day of trial, November 6, 1989, defense counsel orally moved to exclude the testimony of correctional officer Elton Lawler, or, in the alternative, for a mistrial on the basis that the State had violated discovery requirements. Defense counsel noted that he had just received, for the first time that morning, a copy of Lawler's report, which was dated October 24, 1989. Lawler's report indicated that he was the first person to search the defendant following his arrest and found, among other things, two pairs of gloves on the defendant and four or five stingers. Stingers are heating elements for boiling water for coffee. The gloves were examined by the crime lab and found to have bloodstains on them consistent with that of Troeng's blood type. Defense counsel argued to the trial court that the late disclosure of Lawler's report was unduly prejudicial because prior to the surfacing of this report, there was no evidence linking the defendant to the gloves. While defense counsel was aware that the gloves existed and knew the result of the blood test performed on the gloves, there was no report linking the defendant to the gloves. Thus, defense counsel contended that prior to the surfacing of this report, the evidence would only show that the defendant was guilty of the theft of cigarettes from the commissary. Additionally, defense counsel pointed out that it was not until October 20, 1989, that he received a supplemental list of witnesses containing Lawler's name and the name of Yolanda Galvan, a correctional officer who allegedly received the gloves from Lawler. Upon receiving the supplemental list, defense counsel asked the prosecutor if he had a report from Lawler, but the prosecutor responded that he had not yet received a report from either Lawler or Galvan. The prosecutor responded to defense counsel's objection by noting that he first learned on October 22 or 23, 1989, while reconstructing the chain of custody for the gloves, that Lawler found the gloves on the defendant. The prosecutor stated that contrary to defense counsel's assertions of not having prior notice of Lawler's report, the report was given to defense counsel on October 25 or 26, 1989, only a day or two after it was prepared. The trial court denied defendant's motion and Lawler was allowed to testify. Lawler's testimony was consistent with the information contained in his report. Additionally, Lawler stated that immediately following his search of defendant, he turned over the stingers and the gloves to Yolanda Galvan. Lawler also claimed that he prepared a report of the incident and filed it with Galvan on October 27, 1988. Galvan testified that she received the gloves and two stingers from Lawler, but that he did not file a report. At the close of the State's case in chief, the parties stipulated that the Stateville commissary was inventoried on October 31, 1988, and, taking into account all of the cigarettes which had been taken into custody, an additional 242 packs of cigarettes remained unaccounted for following the break-in at the commissary. There was no evidence, however, as to any previous inventory of the commissary prior to that date. In his own defense, the defendant testified that on October 27, 1988, he arrived at his work assignment at about 5 a.m. Nobody was in the dining room, so the defendant left to get some supplies and then returned. When the inmates and staff began to arrive for breakfast between 5 and 5:30 a.m., the defendant emptied a trash container and then decided to go to the laundry room to get some bleach. As he approached the laundry room, he saw correctional officer Gary Adams and two inmates in the food wagon, and he waved at them. Shortly thereafter, the defendant decided to follow Adams to the general store and assist him there. When the defendant got to the store, though, Adams and the inmates were already inside. The defendant banged on the door of the store and waited about 10 minutes until he saw a line of inmates on their way back from breakfast. When he saw this, he realized it was close to 7 a.m. and he had to report back to the dining room to be counted. On the way back, he passed the commissary and saw a hat, some keys, some stingers, and two or three large bags on the ground. Next, the defendant claimed that he heard some groaning. He looked over the wall and saw Troeng lying on the ground. He climbed over the wall and lifted Troeng up to a sitting position. Some blood was coming from Troeng's mouth, but he did not appear to be seriously injured. The defendant did not want to be blamed for the incident, so he climbed back over the wall. The defendant recalled that, as he began to leave the area, he picked up two stingers, the keys, and one of the bags. He looked in the bag and saw that it contained a lot of cigarettes. He then heard someone coming so he hid on the other side of the wall. He still had the cigarettes with him, but he never made a conscious decision to steal them. When somebody yelled at him, he ran toward the general store and, as he did so, he dropped the bag of cigarettes and the keys. The defendant denied striking Troeng with an iron bar. He also testified that he did not have any gloves with him that day and that, after he was taken into custody, Lawler searched him but did not find any gloves.",facts
+281,6326805,1,1,"Anthony L. Burries’ motion for default judgment was denied, and his motions seeking postconviction relief were dismissed. He appeals. We affirm.",introduction
+282,1875888,1,3,"The state presented no evidence as to Whatley's receipt of the generator. Therefore, there can be no evaluation of the transaction under the reasonable man standard. The state's evidence consisted of the actions which Whatley took after he was in possession of the generator. That evidence showed that he sold or pawned the generator to the owner of a bar about twenty-four hours after it was stolen, for substantially less than the value of the generator. The state did not present substantial evidence to show guilty knowledge. As the court held in Rodgers v. State, 222 Miss. 23, 75 So.2d 42 (1954), where the state relies totally on circumstantial evidence to establish guilty knowledge in a case of receiving stolen property, the state bears the burden not only to prove the appellant's guilt beyond every reasonable doubt but to the exclusion of every reasonable hypothesis of his innocence. 222 Miss., at 29, 75 So.2d 42. In that case, the defendant was convicted of receiving stolen whiskey. The state relied upon the secrecy involving the transaction to show guilty knowledge. However, at that time, possession of whiskey was illegal in this state. The Court reversed the conviction, holding that the secrecy surrounding the handling of the whiskey ... tended just as much to show that the manner of handling and dealing with the whiskey was because it was an illegal commodity as ... because the parties were dealing with stolen property. One theory is just as reasonable as the other... . Id. Further, the Court held that The jury were not warranted in rejecting the theory favorable to the appellant under the facts of this case... . Id. In this case, the immediate sale of the generator at such a low price could indicate guilty knowledge. It also could indicate an immediate need for cash. Finally, it could indicate that the defendant, Whatley, was guilty of the actual theft of the generator. As early as 1889, the Mississippi Supreme Court held that a thief cannot be convicted under the statute for receiving stolen property. In Frank v. State, 67 Miss. 125, 128, 6 So. 842 (1889), the Court held that It is not sufficient to convict a prisoner of receiving goods knowing them to be stolen, to show that he stole them; but where circumstances warrant the conclusion that they were stolen by another, and they are traced to the possession of the defendant, under circumstances sufficient to make him believe they were stolen, this is sufficient to uphold a conviction. In Manning v. State, 129 Miss. 179, 181, 91 So. 902 (1922), the Court held that Where a defendant is charged with receiving stolen goods and the evidence shows that he is guilty of the larceny of the goods in question, he cannot be convicted of the offense with which he is charged... . Two offenses are akin to the extent that the crime of receiving stolen goods cannot be committed, except as to goods which have been stolen, but the thief cannot be guilty of both offenses. In Thomas v. State, 205 Miss. 653, 657, 39 So.2d 272 (1949), the Court reiterated this view. The rule is succinctly stated in 53 C.J. 513, section 28, as follows: `It is elementary law that one who steals property cannot be convicted of receiving, concealing, or aiding in concealing the property stolen. The statutes making the receiving of stolen goods a substantive offense are not intended to punish the thief by way of a double penalty but are directed against those who would make theft easy or profitable. Nor can one who has stolen property jointly with another, that is to say, who jointly with another takes part in the caption and asportation of the property, be convicted of receiving stolen property... . In Anderson v. State, 232 So.2d 364 (Miss. 1970), the Court once again held: One who steals property cannot be convicted of receiving, concealing or aiding in concealing stolen property. Id. at 365-66. Anderson was overruled in the case of Knowles v. State, 341 So.2d 913 (Miss. 1977), but only to the extent that an accessory before the fact can be convicted under the statute for receiving stolen goods. At the close of the state's case, there was no evidence showing that Whatley had either received or stolen the goods. However, during the defense's case, Whatley gave his version of the receipt of the property. Apparently, the jury rejected his story, since he was convicted. With the rejection of Whatley's story, there is no evidence in the record of how he actually came by the generator. However, during cross-examination, the state asked Whatley if he knew the location of the Holiday Inn in Greenville, and how far away the Hide-Away Lounge was from the Holiday Inn. That questioning, and Whatley's affirmative answers, could lead to the inference that Whatley indeed stole the generator from the parking lot of the Holiday Inn. Without any evidence showing that Whatley either received or stole the generator, the jury was left with mere possession of stolen property. That is not a crime under § 97-17-69. Thompson, 457 So.2d at 955. At the close of the state's case, the defendant requested a peremptory instruction. The standard of review appropriate in such a case is that a directed verdict or peremptory instruction should be awarded when the facts, viewed in the light most favorable to the state, do not make out a case sufficient to go to the jury. Shelton v. State, 445 So.2d 844, 848 (Miss. 1984). The state's evidence, taken in the light most favorable to it at the close of the state's case, merely established possession of property recently stolen, which was worth more than $100.00, and which was sold, or pawned, by the defendant for $20.00. That evidence was insufficient to show guilty knowledge. Furthermore, the state presented no evidence at trial bearing on the defendant's receipt of the goods, and the defendant's version of receipt of the goods was apparently rejected by the jury. The state failed to present evidence sufficient to withstand the defendant's motion for a directed verdict on the charge of receiving stolen property. Therefore, the trial court erred in not sustaining the motion for directed verdict and the indictment is accordingly dismissed. REVERSED AND INDICTMENT DISMISSED. PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.",sufficiency of the evidence
+283,901041,1,11,"[¶ 40.] What is the applicable rate of prejudgment interest? [¶ 41.] The ALJ allowed prejudgment interest on the PPD, but did not determine the applicable rate of interest. The circuit court held the applicable statutory prejudgment interest rate was pursuant to SDCL 54-3-5 at the Category B rate, ten percent, as established in SDCL 54-3-16(2). [3] This issue is before this Court pursuant to a notice of review filed by Blenner. This is a question of law and is reviewed by this Court de novo. Davidson v. Horton, 2002 SD 27 at ¶ 17, 641 N.W.2d at 141. [¶ 42.] Blenner contends that SDCL 54-3-5 is the operative statute for prejudgment interest and interest should be at the Category F rate established by SDCL 54-3-16. Blenner contends that payments for PPD do not constitute damages as referred to in SDCL 21-1-13.1 and as a consequence SDCL 54-3-5 is the operative statute. [¶ 43.] Employer/Insurer takes the position that SDCL 21-1-13.1 is the operative statute for the purpose of determining the rate of interest and that interest should be at the Category B rate. [4] SDCL 21-1-13.1 was enacted in 1990 and had not been enacted at the time of the incidents involved in Skelly Oil and Tischler decisions. [¶ 44.] In Skelly Oil and Tischler this Court upheld prejudgment interest in workers' compensation cases. In both Skelly Oil and Tischler SDCL 21-1-11 was established as being the empowering statute for prejudgment interest. While Blenner takes the position that SDCL 54-3-5 is the applicable statute, it was enacted prior to Skelly Oil and Tischler decision, and, was in existence at the time the issue was decided. [¶ 45.] SDCL 54-3-5 sets the interest rate, in relevant part, on amounts due on any instrument of writing, and on moneys lent, or due on any settlement of accounts. [¶ 46.] SDCL 57A-3-104(b) defines instrument as a negotiable instrument. Additionally, an instrument has been defined as: A formal or legal document in writing, such as a contract, deed, will, bond or lease. A writing that satisfies the requisites of negotiability prescribed by UCC Art. 3. A negotiable instrument (defined in UCC § 3-104), or a security (defined in UCC § 8-102) or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment. UCC § 9-501(1). Black's Law Dictionary, 801 (6th ed. 1990). Workers' compensation benefits are not encompassed in the wording at SDCL 54-3-5 and prejudgment interest should not be based on SDCL 54-3-5. [¶ 47.] SDCL 21-1-13.1 provides for prejudgment interest, under certain criteria, for any person who is entitled to recover damages. SDCL 21-1-1 defines damages: Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefore in money, which is called damages. Detriment is a loss or harm suffered in person or property. This definition utilizes the phrase recover for the person in fault as part of the definition of damages. Compensation under the workers' compensation law is not based on fault, but rather is a responsibility which the employer assumes. SDCL 62-3-1; Benson v. Sioux Falls Medical and Surgical Clinic, 62 S.D. 324, 252 N.W. 864 (1934). An award for workers' compensation pursuant to a work related injury is not encompassed by the wording of SDCL 21-1-13.1. [¶ 48.] Skelly Oil and Tischler held SDCL 21-1-11 to be the operative statute for prejudgment interest in connection with workers' compensation awards. SDCL 54-3-4 would have been the appropriate statute for interest computation pursuant to SDCL 21-1-11. The enactment of SDCL 21-1-13.1 and SDCL 21-1-13.2 does not alter the applicability of SDCL 54-3-4. That statute, a catchall provision that applies the category C rate of interest, applies where there is any general obligation to pay interest. Id. Because this is the most applicable statute for a workers compensation award, the category C rate applies. Prejudgment interest is recoverable at the Category C rate of interest pursuant to SDCL 54-3-4, and SDCL 54-3-16(3). [5] [¶ 49.] The lower court's decision to impose a Category B rate of interest pursuant to SDCL 54-3-16(2) is reversed and remanded for entry of an order indicating that the Category C rate is assessed pursuant to SDCL 54-3-16(3). [¶ 50.] GILBERTSON, Chief Justice, ZINTER and MEIERHENRY, Justices, and LOVRIEN, Circuit Judge, concur. [¶ 51.] GIENAPP, Circuit Judge, for SABERS, Justice, disqualified. [¶ 52.] LOVRIEN, Circuit Judge, for KONENKAMP, Justice, disqualified.",issues
+284,2630451,1,1,"[¶ 2] 1. Whether the district court abused its discretion or violated the appellant's constitutional right to confrontation in allowing an investigator to testify, over a hearsay objection, that the murder victim earlier had reported that the appellant had threatened him? 2. Whether the district court abused its discretion or violated the appellant's constitutional right to confrontation in allowing an investigator to testify, over relevancy and unfair prejudice objections, that the murder victim had reported that the appellant had sexually assaulted him? 3. Whether the district court committed plain error in allowing witness Martinez to testify about statements made to him by nonwitness Hicks? 4. Whether the district court abused its discretion in denying the appellant's motion for a change of venue?",issues
+285,1826721,1,1,"Ronald B. Holloman and Joan Williams Holloman were granted a divorce on the grounds of irreconcilable differences, ending a second marriage to each other on May 8, 1989. Both parties were represented by separate counsel throughout the proceedings. The Holloman's settlement agreement was approved and accepted by the chancellor and incorporated into the divorce decree. Pursuant to the terms of the agreement, Ronald agreed to pay Joan one half of his monthly retirement benefits that he would accrue prior to retirement. Ronald had two separate retirement plans with his employer, Union Camp Corporation. One known as the Union Camp Corporation Retirement Plan for Salaried Employees and the other as a Savings and Investment Plan. After the divorce decree was entered, Joan inquired of Ronald what accounts were involved concerning his retirement funds. Ronald only advised her of his employer's Retirement Income Plan. The Hollomans had a Qualified Domestic Relations Order (QDRO) entered naming Joan as the payee under that Retirement Income Plan. Subsequent to the entry of that order, Joan discovered that the Retirement Income Plan did not contain the total assets that Ronald had accumulated toward retirement. Ronald had another account, a 401-K account called a Savings and Investment Plan. Joan contended that this account was governed by the settlement agreement. Ronald refused to comply with Joan's request. Joan filed a motion to cite Ronald for contempt, and thereafter amended, to have the 401-K incorporated into a revised QDRO in conformity with the settlement agreement. The chancellor determined that the parties contracted themselves to an acceptable termination of their marriage and fair distribution of their marital assets. He treated the agreement as a contract, noted that contracts are construed against the preparer, and since Joan's attorney had prepared the document, any knowledge of marital assets attributed to her was imputed to her attorney. He found that the separation agreement failed to show the specificity required to modify the Final Decree of Divorce and the Qualified Domestic Relations Order. He also determined that Ronald was current in his payment of support and had supplied adequate financial information to Joan. He therefore, denied her relief on her request that Ronald be held in contempt. Following denial of all relief and Joan's timely Motion For New Trial, which was overruled, this appeal followed.",facts
+286,6322867,1,4,"[1] When reviewing a jury verdict, the appellate court considers the evidence and resolves evidentiary conflicts in favor of the successful party. 1 [2] A jury verdict may not be set aside unless clearly wrong, and it is sufficient if there is competent evidence presented to the jury upon which it could find for the successful party. 2 [3] When the jury returns a general verdict for one party, we presume that the jury found for the successful party on all issues raised by that party and presented to the jury. 3 [4] The “general verdict” rule, which is also referred to as the “two issue” rule, is a policy rule which provides that where a general verdict is returned for one of the parties, and the mental processes of the jury are not tested by special 1 Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 (2018). 2 ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 N.W.2d 156 (2017) 3 Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015). - 569 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports DE VRIES v. L & L CUSTOM BUILDERS Cite as 310 Neb. 543 interrogatories to indicate which issue was determinative of the verdict, it will be presumed that all issues were resolved in favor of the prevailing party, and, where a single determinative issue has been presented to the jury free from error, any error in presenting another issue will be disregarded. 4 [5] One cannot silently tolerate error, gamble on a favorable result, and then complain that one guessed wrong. 5 [6] An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. 6 [7] A motion for reconsideration, which is considered nothing more than an invitation to the court to consider exercising its inherent power to vacate or modify its own judgment, is insufficient for purposes of asking a trial court to pass upon an issue in order to properly preserve it for appeal. 7 [8] The point at which a statute of limitations begins to run must be determined from the facts of each case, and the decision of the district court on the issue of the statute of limitations normally will not be set aside by an appellate court unless clearly wrong. 8 [9] In reviewing a trial court’s ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence. 9 4 Kuhnel v. BNSF Railway Co., 20 Neb. App. 884, 834 N.W.2d 803 (2013), reversed on other grounds, 287 Neb. 541, 844 N.W.2d 251 (2014); Lahm v. Burlington Northern RR. Co., 6 Neb. App. 182, 571 N.W.2d 126 (1997). 5 Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001). 6 Id. 7 See id. 8 Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002). 9 Jacobs Engr. Group v. ConAgra Foods, supra note 1. - 570 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports DE VRIES v. L & L CUSTOM BUILDERS Cite as 310 Neb. 543 [10] Review of a ruling on a motion for judgment notwithstanding the verdict is de novo on the record. 10 [11] Whether a jury instruction is correct is a question of law, which an appellate court independently decides. 11 [12] Failure to object to jury instructions after they have been submitted to counsel for review or to offer more specific instructions if counsel feels the court-tendered instructions are not sufficiently specific precludes raising an objection on appeal. 12 [13] Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party. 13 [14] In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. 14 [15] Where jury instructions are claimed deficient on appeal and such issue was not raised at trial, an appellate court reviews for plain error. 15 [16] An appellate court reviews a denial of a motion to alter or amend the judgment for an abuse of discretion. 16 [17] On appeal, the fact finder’s determination of damages is given great deference. 17 The amount of damages to be awarded is a determination solely for the fact finder, and its action in 10 Valley Boys v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856 (2020). 11 City of Wahoo v. NIFCO Mech. Systems, 306 Neb. 203, 944 N.W.2d 757 (2020). 12 See Wilkins v. Bergstrom, 17 Neb. App. 615, 767 N.W.2d 136 (2009); Neb. Ct. R. § 6-802. 13 Haffke v. Signal 88, 306 Neb. 625, 947 N.W.2d 103 (2020). 14 Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006). 15 Foundation One Bank v. Svoboda, 303 Neb. 624, 931 N.W.2d 431 (2019). 16 Jacobs Engr. Group v. ConAgra Foods, supra note 1. 17 Shipler v. General Motors Corp., supra note 14. - 571 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports DE VRIES v. L & L CUSTOM BUILDERS Cite as 310 Neb. 543 this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to elements of damages proved. 18 [18] While the amount of damages presents a question of fact, the proper measure of damages presents a question of law. 19 [19] An award of damages may be set aside as excessive or inadequate when, and not unless, it is so excessive or inadequate as to be the result of passion, prejudice, mistake, or some other means not apparent in the record. 20 [20] Allocation of a settlement agreement is reviewed for an abuse of discretion. 21",standard of review
+287,3152660,1,4,"Hearsay Poe argues that the court erred by excluding the second paragraph of Velma’s affidavit on hearsay grounds. He contends that he did not offer it for the truth of the matter asserted. Instead, he states that he offered it to show that Riley knew Harper had made a statement to the effect that Poe was innocent. [4,5] Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.7 Hearsay is not admissible unless otherwise provided for in the Nebraska Evidence Rules or elsewhere.8 [6] Of course, an out-of-court statement is not hearsay if the proponent offers it for a purpose other than proving the truth of the matter asserted.9 For example, a statement is not hearsay if the proponent offers it to show its impact on the listener and the listener’s knowledge, belief, response, or state 4 Id. 5 Id. 6 See Arens v. NEBCO, Inc., 291 Neb. 834, ___ N.W.2d ___ (2015). 7 State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015). 8 Id. 9 State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008). - 66 - Nebraska A dvance Sheets 292 Nebraska R eports STATE v. POE Cite as 292 Neb. 60 of mind after hearing the statement is relevant to an issue in the case.10 [7,8] But we need not decide if the second paragraph of Velma’s affidavit is admissible as evidence of Riley’s knowledge, because its exclusion did not prejudice Poe. Error that does not prejudice the appellant is not a ground for relief on appeal.11 The exclusion of evidence is ordinarily not prejudicial if the court admits substantially similar evidence without objection.12 Hayes repeatedly testified that she told Riley that Harper said that he was lying and that Poe was innocent. Poe himself stated in his affidavit that he told Riley that he had “reason to believe . . . Harper had recently admitted lying to detectives about my involvement.” The second paragraph of Velma’s affidavit was substantially similar to other evidence that the court received. Its exclusion therefore did not prejudice a substantial right of Poe. Ineffective Assistance of Counsel Poe argues that the court was clearly wrong in finding that Hayes did not tell Riley about Harper’s inconsistent statement. Poe contends that Riley did not testify “on personal knowledge.”13 Instead, Riley’s “basis for his conclusion that Hayes did not tell him is his belief that he would have asked more follow-up questions,” which Poe believes is “an untenable basis for the district court’s finding.”14 Because of its 10 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). See, State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014); State v. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012); State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997); State v. Bear Runner, 198 Neb. 368, 252 N.W.2d 638 (1977); 2 McCormick on Evidence § 249 (Kenneth S. Broun et al. eds., 7th ed. 2013). 11 See Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010). 12 Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 (2015). 13 Brief for appellant at 15. 14 Id. - 67 - Nebraska A dvance Sheets 292 Nebraska R eports STATE v. POE Cite as 292 Neb. 60 mistaken factual finding, Poe argues that the court’s legal conclusion was also faulty. [9] To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,15 the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense.16 A court may address the two prongs of this test, deficient performance and prejudice, in either order.17 We conclude that the court’s finding that Hayes never told Riley about Harper’s inconsistent statement is not clearly wrong. Riley testified that he did not believe Hayes told him about the statement, because he could not remember Hayes telling him about the statement. Whether a person can have any other type of “personal knowledge” of an event that did not occur is a question for a metaphysician, not a court. Poe argues that Riley testified in “less specific terms” than Hayes,18 but it is not our role to reweigh the credibility of witnesses or resolve conflicts in the evidence.19",analysis
+288,1792153,1,4,"Parker claims that the trial court abused its discretion in denying his requests for records from the Broward County Sheriff's Office in the form of personnel files and internal affairs files of the law enforcement officers involved in the investigation. As we stated in State v. Coney, 845 So.2d 120 (Fla.2003): A circuit court's ruling on a public records request filed pursuant to a rule 3.850 motion will be sustained on review absent an abuse of discretion.... Discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. Id. at 137 (quoting White v. State, 817 So.2d 799, 806 (Fla.), cert. denied, 537 U.S. 1091, 123 S.Ct. 699, 154 L.Ed.2d 638 (2002)). In the instant case, Parker made a blanket request for the files of forty-five officers. However, Parker was only able to specifically name two officers, Detective Scheff and Detective Wiley, who were involved in his case. He stated that he needed the files to see if there is any impeachment evidence or anything of that nature in there. In response to the requests, the State offered Parker the opportunity to question the attorneys from each of the agencies involved regarding the records demanded. The trial court granted Parker's request for Detective Scheff's and Detective Wiley's files but denied Parker's requests for all other public records, finding that the prejudicial effect to the administration of justice outweighed any possible probative value to the defendant. The trial court's decision to deny Parker's motion was reasonable because Parker could only name two individuals at the Broward County Sheriff's Office whose files were relevant to his case, and because the State offered Parker the opportunity to question the attorneys from each of the agencies involved. We conclude that the trial court did not abuse its discretion. Therefore, Parker is not entitled to relief on this claim. In addition, Parker claims that the trial court also abused its discretion in refusing to unseal records submitted by the State Attorney's Office based on claims that the records were exempt from public records disclosure. The trial court reviewed these records and determined that they did not contain any Brady [6] material. Thus, the record reveals that the court did not abuse its discretion in denying Parker access to the sealed records submitted by the State Attorney's Office.",issues
+289,2785112,1,2,"Review of an entry of summary judgment is de novo. Floyd-Tunnell v. Shelter Mut. Ins. Co., 439 S.W.3d 215, 217 (Mo. banc 2014). Summary judgment is appropriate when the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Id.; Rule 74.04(c). Interpretation of an insurance policy and the determination of whether provisions are ambiguous are questions of law, subject to de novo review. Floyd-Tunnell, 439 S.W.3d at 217. 3 Attorney ultimately admitted to numerous violations of Rules 4-1.8(a) and 4-1.15(c). On November 2, 2012, this Court accepted Attorney’s voluntary surrender of his law license and disbarred him pursuant to Rule 5.25. 4 This Court granted transfer after opinion by the court of appeals. MO. CONST. art. V, sec. 10. 5",standard of review
+290,2634605,2,1,"The long-arm statute provides jurisdiction over an out of state company when it does an act in Idaho for pecuniary gain. I.C. § 5-514(a). The long-arm statute should be liberally construed. McAnally v. Bonjac, Inc., 137 Idaho 488, 491, 50 P.3d 983, 986 (2002). Based on PurCo's purposefully directed activities in Idaho the exercise of jurisdiction over PurCo by the Director in issuing the cease and desist order is consistent with fair play. State Department of Finance v. Tenney, 124 Idaho 243, 247, 858 P.2d 782, 786 (1993). This Court concludes Idaho has personal jurisdiction over PurCo.",jurisdiction
+291,1548358,1,3,"
+In the District of Columbia, there is a statutory presumption that a claim for injuries suffered by a worker on the job comes within the provisions of the [Workers' Compensation] Act, absent evidence to the contrary. Murray v. District of Columbia Dep't of Employment Servs., 765 A.2d 980, 983 (D.C.2001); see D.C.Code § 32-1521(1) (2001). To take advantage of the presumption of compensability, a claimant must make an initial showing that he or she sustained injuries and a work-related event that has the potential of contributing to the injuries. . . . Once this minimal initial showing is made, the presumption establishes a causal connection between the claimant's injury and the work-related event. . . . Jackson v. District of Columbia Dep't of Employment Servs., 955 A.2d 728, 732 (D.C.2008) (internal citation omitted). If the presumption is triggered, the burden shifts to the employer to bring forth substantial evidence showing that the . . . disability did not arise out of and in the course of employment. McCamey v. District of Columbia Dep't of Employment Servs., 947 A.2d 1191, 1199 (D.C.2008) (en banc) (citation and internal quotation marks omitted). To rebut the presumption, the employer's evidence must be specific and comprehensive enough to sever the potential connection between the disability and the work-related event. Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 827 A.2d 35, 42 (D.C.2003) (citation and internal quotation marks omitted). In this case, employer WMATA does not dispute that Payne's evidence was sufficient to trigger the presumption of compensability, but it contends that it offered substantial evidence that was sufficient to rebut the presumption of a causal connection between Payne's August 29, 2006 asthma attack and the failure of the Farragut West HVAC system to work properly on that day. We are satisfied that substantial evidence supports the Board's decision to uphold the ALJ's finding that WMATA failed to rebut the presumption that Payne was rendered disabled by a workplace event. The record evidence that was before the ALJ included opinions from both Payne's treating physician, Dr. Armstrong, and the IME, Dr. Scott, that Payne suffered from asthma and that he should avoid extremely hot and humid conditions. Dr. Scott opined that most people who are asthmatic tend to find . . . they have more difficulty when the air is hot and humid. Though stating that Payne's asthma is without a clear etiology, Dr. Scott agreed that his asthma symptoms are exacerbated by hot, humid conditions. Further, it was uncontradicted that the Farragut West HVAC system malfunctioned on August 29, 2006, the day Payne reported feeling dizzy, faint, very weak, and had difficulty breathing. As the ALJ noted, a WMATA station manager's log for August 2731, 2006, contained entries indicating that the platform chiller at Farragut West was not working as well and that the station mezzanine area was very hot. WMATA attempted to show that the temperatures inside the Farragut West station were not extreme enough to have exacerbated Payne's asthma by pointing to station temperature logs that showed temperatures at or below 86 degrees Fahrenheit on dates in August 2006, [3] and also showed, for the same dates, that temperatures inside the station consistently were lower than outside temperatures, sometimes by as much as 10 to 15 degrees. However, WMATA's logs contained no temperature reading for August 29, 2006, the day Payne became ill. In addition, as the ALJ observed, the temperature log readings were for various air conditioner units and thus did not purport to show what temperatures were at all places within the station. In light of all the foregoing, the ALJ could reasonably find that WMATA's evidence was not sufficiently comprehensive and specific to rebut the presumption that excessive heat at the Farragut West station on August 29, 2006, exacerbated the symptoms of Payne's asthma and rendered him temporarily disabled. Accordingly, the Board did not err in upholding the ALJ's determination. [4]
+The ALJ correctly recognized that Payne was not entitled to a presumption regarding the nature and extent of his claimed disability. See Golding-Alleyne v. District of Columbia Dep't of Employment Servs., 980 A.2d 1209, 1213 (D.C.2009) (On the question of the nature and extent of [her] disability, . . . the claimant is not entitled to any presumptions.) (citation omitted); Hiligh v. District of Columbia Dep't of Employment Servs., 935 A.2d 1070, 1075 (D.C.2007). However, the ALJ erroneously stated that Payne's burden was only to present substantial credible evidence that he has a disability entitling him to the requested level of benefits. In fact, the correct burden of proof is a preponderance of the evidence. Washington Metro. Area Transit Auth., 926 A.2d at 149; see also Golding-Alleyne, 980 A.2d at 1215-16 (The claimant had the burden of proof when presenting her case to the ALJ, and she must prove her case by a preponderance of the evidence. . . . Merely presenting `substantial evidence' to support [a] claim is not necessarily enough to carry the burden of persuading the finder of fact.). Having misapprehended Payne's burden of proof, the ALJ made no finding as to whether Payne proved by a preponderance of the evidence that his disability was ongoing. For its part, the Board overlooked the ALJ's articulation of an incorrect standard and his failure to weigh the parties' evidence under the applicable preponderance-of-the-evidence standard. Notwithstanding, if the Board had concluded as a matter of law that the evidence was so one-sided that it would have been unreasonable for the ALJ to find that Payne had failed to prove his ongoing disability by a preponderance of the evidence, the Board could properly have upheld the ALJ's determination. But the Board never made such a legal determination. Quite the contrary, the Board's analysis implies that WMATA bore the burden of proof, because the Board invoked a review standard that applies when the party with the burden of proof has petitioned for review. In reasoning nor do we agree . . . that [WMATA's] evidence compels . . . a conclusion that the air is sufficiently dust-free to permit this worker to return to [the work] environment, the Board employed a test that this and other courts have used in analyzing a claimant's contention that the hearing officer erred in finding that the claimant did not meet his burden of proof as to disability. See id. at 1216 (applying the rule that [w]hen an agency concludes that the party with the burden of proof failed to meet that burden, we will reverse that determination only if the record compels a contrary conclusion to the exclusion of any other inference) (quoting Douglas v. Board of Trs. of the Me. State Ret. Sys., 669 A.2d 177, 179 (Me.1996)). [5] We could avoid a remand if we were able to make a legal determination that the evidence compelled a determination that Payne met (or failed to meet) his burden of proof as to his claim that workplace conditions prevent him from returning to work. However, in our judgment, the evidence does not so clearly favor either side that we can make such a determination. As we explain below, this is true as to both the evidence about dust and the evidence about temperature extremes. In addition to Payne's own testimony about dust in the workplace, the ALJ had before him numerous statements by Dr. Armstrong about Payne's inability to tolerate dust at the Metro station. For example, on December 21, 2006, Dr. Armstrong opined that Payne must be relocated away from the dusty, dirty underground Farragut West 18th Street station. [6] On September 17, 2007, Dr. Armstrong recommended that Payne continue to stay away from the dusty environment of the Metro Tunnels. While Dr. Armstrong stated that any outside station is acceptable as a workplace environment for Payne, evidence was offered and the ALJ found that station managers choose Metro stations according to seniority, with the result that Payne could not be guaranteed the choice of an open-air outdoor station. Although Payne had not returned to work since August 29, 2006, to test his reaction to the underground station, he testified that he rode the subway to his lawyer's office and to the hearing, and that I cough and I can tell that I have to use my inhaler after I use it because there's just something in the dust that gets—that chokes me. As WMATA argues, however, Dr. Armstrong's statements sometimes were tentative, often were vague and non-specific about Payne's environmental restrictions, and seem to be based largely, if not entirely, on Payne's own allegations about the dusty environment at Farragut West and its impact on him. [7] In his September 11, 2006 letter, Dr. Armstrong stated that when he first saw Payne on May 15, 2006, Payne complained about the dusty environment at the Metro Station, and was given a note to take to Metro suggesting that his asthma and respiratory illnesses were worsened by the dust exposures at the Farragut West 18th Street Station and that he needed to be relocated to less irritating job sites. (italics added). By contrast, Dr. Armstrong's almost-contemporaneous note about the May 15, 2006 visit states that he diagnosed Payne as having allergies to pollen with chest tightness and wheezing. [8] Asked what he meant by the dust exposure that worsened Payne's asthma, Dr. Armstrong answered all airborn [sic] irritants that he must breathe into his lungs. Asked whether there was a minimum or measurable level of dust exposure that Payne must avoid, Dr. Armstrong answered, whatever level irritates his lungs. WMATA presented evidence, via the testimony of IME Dr. Scott, that the only way one would know [whether Payne's symptoms were related to dust] would be to do an industrial hygiene survey to see what his exposure actually is. Dr. Scott was asked, If a person is affected by dust and you are given reports indicating [that] a certain work area meets the OSHA standards as far as the air sampling and the air quality, would that person be released, in your opinion, to work in that environment? He answered, [I]f you had data to show that your dust levels were low, then it certainly would not be the dust that's causing the problem. [9] He testified that the OSHA standard as to dust levels is a pretty good guideline as to whether there is excess dust. Through Dr. Jurinski, WMATA presented the results of an industrial hygiene study. As already described, Dr. Jurinski testified that the dust levels at both the Farragut West and Foggy Bottom stations were well below OSHA limits. Since Dr. Jurinski supplied the industrial-hygiene report that Dr. Scott indicated would mean that the dust levels in the station met Payne's medical restrictions, the ALJ could not properly discount Dr. Jurinski's testimony on the sole ground that Dr. Jurinski himself was not a medical doctor and that no physician had reviewed Dr. Jurinski's findings. [10] Regarding the temperature environment in the Metro stations, Dr. Armstrong stated on September 1, 2006, that Payne's respiratory illness was worsened by . . . unbearable heat (nonfunctional air cond[itioner]). [11] Dr. Scott determined that Payne is able to return to work as a station manager as long as the HVAC system where he is working—is functioning properly. According to Dr. Scott, when he examined Payne on November 30, 2006, Payne, too, said that he believed he could work as long as there was someplace he could go where the HVAC system worked. But the evidence was conflicting regarding whether the workplace would continue to expose Payne to excessive heat (or cold). WMATA's evidence was that the August 29, 2006 air-conditioner malfunction that Payne described was fixed the next day. As already described, WMATA also introduced an exhibit showing August 2006 air temperatures well below the 90-degree temperature that Dr. Armstrong identified as the temperature above which the heat was too extreme for Payne to work. WMATA emphasizes the evidence that Payne experiences his claimed difficulties with temperature extremes even outside the workplace, including his testimony that he sometimes can't catch his breath when he gets out of the shower, that he almost passed out while working in his yard in the cold of December, that he has canceled doctor's appointments because of the weather, and that he normally [doesn't] go out until the afternoon to avoid temperature extremes and sometimes cannot leave [his] house because of the heat. Although this evidence would not necessarily favor WMATA if Payne's sensitivity to temperature extremes had developed ab initio in the workplace, the ALJ did not so find. Rather, as the Board explained, the ALJ made no finding that Payne's pulmonary condition was caused ab initio by his employment, or that the condition was worsened as a permanent medical matter (i.e., rendered worse in the sense that the exposure causing the disability made respondent more susceptible as a general matter to such exposures than he had been previously, or that the workplace exposure heightened Respondent's preexisting sensitivity to exposure to dust or heat). [12] Payne relies on WMATA's job description for station managers (Physical Requirements for Station Managers), which specifies that station managers may be required to spend prolonged periods of time exposed to hot and/or cold weather. In addition, Payne testified that the air conditioner never worked, that the August 29, 2006 incident was not just an isolated incident, that there were air conditioner failures for six months at Foggy Bottom, and that he made continuous complaints at Foggy Bottom about the station air conditioner and they never repaired it. He testified that regardless of the WMATA exhibit showing air temperatures, he frequently found himself wringing wet with perspiration while at work, because sometimes, when the station is crowded after a train has arrived, you feel like you're in a tropical zone, while in the mornings and at night, the station is freezing. It was the role of the ALJ to be the sole judge of where the preponderance of the evidence lay, i.e., to weigh the evidence that we have summarized and other evidence in the record and to determine whether or not the preponderance of the evidence supported a finding of ongoing disability. Because the ALJ did not make a preponderance finding, and because we cannot say that the evidence compelled a finding one way or the other, a remand is necessary, so that the ALJ can make the necessary finding. [13] Cf. Logan v. District of Columbia Dep't of Employment Servs., 805 A.2d 237, 239, 240 (D.C.2002) (concluding that where the hearing examiner's analysis of the nature and extent of a claimant's disability reflect[ed] confusion as to the correct allocation of the burden of proof, the court could not determine whether conclusions legally sufficient to support the decision flow[ed] rationally from the findings, and thus a remand was necessary for further consideration of the evidence by the examiner under the proper standards (quoting Pickrel v. District of Columbia Dep't of Employment Servs., 760 A.2d 199, 203 (D.C.2000) (citation and quotation marks omitted))). Accordingly, we affirm the determination that Payne was rendered temporarily disabled because of the August 29, 2006 incident; but, on the issue of ongoing disability, we remand this matter for further proceedings not inconsistent with this opinion. So ordered.",analysis
+292,4503321,1,1,"This is an appeal from an order disapproving the parties’ application for an order approving a lump-sum settlement on the grounds that the application was not in compliance with the Nebraska Workers’ Compensation Act.1 The Nebraska Workers’ Compensation Court found the application was not in the best interests of the claimant, after the claimant’s attorney objected to the compensation court’s requirement that he disclose the amount of his fees. Because the compensation court’s order of disapproval was not a final, appealable order, we dismiss this appeal for lack of jurisdiction.",introduction
+293,6334029,1,1,"Adam S. Morfeld filed for election as Lancaster County Attorney. Objectors sought to exclude him from the primary - 163 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 election ballot, 1 on the ground that he had not “practiced law actively” for the statutory period. 2 The election commissioner denied the objection. The objectors then filed an application to a district court judge under § 32-624. After the judge denied the application and requests to conduct discovery and expand the record, this appeal followed. 3 Due to the summary nature of a proceeding under § 32-624, we find no abuse of discretion by the district court in denying discovery. Based on the plain and ordinary meanings of “practiced law” and “actively,” we conclude that Morfeld’s routine activities in connection with his employment as executive director fall within the meaning of “practiced law actively” and that he has engaged in such activities for the relevant 2-year period. Because we conclude that Morfeld satisfies the statutory qualifications to seek nomination for the office of county attorney, we affirm the order of the district court.",introduction
+294,2553189,2,3,"In determining whether there was sufficient evidence to support Matthews's conviction for the attempted robbery while armed of Swann, we `must review the evidence in the light most favorable to the government, giving full play to the right of the jury to determine the credibility, weigh the evidence, and draw justifiable inferences of fact, and drawing no distinction between direct and circumstantial evidence.' Timberlake v. United States, 758 A.2d 978, 980 (D.C.2000) (quoting Curry v. United States, 520 A.2d 255, 263 (D.C.1987)). To prevail on an insufficiency claim, an appellant must establish `that the government presented no evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.' Carter v. United States, 957 A.2d 9, 14 (2008) (quoting Peery v. United States, 849 A.2d 999, 1001 (D.C.2004)). In this instance, we find sufficient evidence for the jury to convict Matthews of the attempted robbery while armed of Swann. Appellant contends that in this case there was no evidence, direct or circumstantial of intent to rob Swann. [8] We disagree. `[I]t is well established that the jury may infer the intent to rob from the totality of the evidence.' Id. at 15 (quoting Singleton v. United States, 488 A.2d 1365, 1367 (D.C.1985)). We consider both the appellant's words and actions to assess intent. See Owens v. United States, 497 A.2d 1086, 1090 (D.C.1985). It is not necessary for the defendant to announce his intent, id., nor is it necessary for the defendant to use any magical language demanding money, see Abdus-Price v. United States, 873 A.2d 326, 333 n. 8 (D.C. 2005). In this case, Ingram testified that people were paying for his tattooing services in cash and that he was then putting the money in his pockets while the partygoers were around him. He estimated that he collected $1000 for his work that evening. A witness testified at one point that appellant complained that he thought Ingram's prices were too high. Swann arrived with Ingram and, when the two left, helped carry Ingram's equipment. Ingram also testified that Swann would sometimes assist him at tattoo parties by showing designs to potential customers and knew where to look for certain things. Finally, Bartley testified that, when appellant heard that the tattoo guy had been shot and killed, Matthews stated that he didn't know that they were going to kill him, the plan was for them to rob the guy. Considering that Ingram had been handling money openly at the party, that Swann and Ingram arrived and left together, that Swann assisted Ingram during the night, and appellant's statement that the plan was for them to rob the guy, a reasonable juror could conclude that Matthews intended to rob Swann because it was reasonable to infer that Swann was an assistant or employee of Ingram and might have some of the tattoo earnings on his person. Thus, the evidence was sufficient for the jury to find Matthews guilty of the attempted robbery while armed of Swann.",sufficiency of the evidence
+295,2734258,1,1,"¶2. This case arises out of the March 8, 2006, armed robbery of Michael and Heather Whittington at their home in Union County. During the evening on that date, Michael, Heather, and their two daughters were at their home on County Road 56 in Myrtle, Mississippi, when two men forcibly entered their house. The men entered the master bedroom and demanded that Michael give them all of his money or they would kill his children. Michael attempted to fight the men, but one of them struck him over the head with a pistol, knocking him unconscious. One of the men searched the pockets of Michael’s pants and took his cash, credit cards, and wallet. Michael had cashed a check at the Bank of New Albany earlier that day and had roughly four thousand dollars on his person. The men then entered the master bathroom, held Heather at gunpoint, and took her engagement ring, her wedding band, and another diamond ring from her. After the intruders left the house, Heather called 9-1-1. ¶3. Jimmy Dean Whitten, a criminal investigator with the Union County Sheriff’s Department, was one of the first law-enforcement officers to arrive at the Whittington residence after Heather’s 9-1-1 call. Investigator Whitten attempted to take statements from Michael and Heather at the scene, but Michael was barely conscious due to his injuries, and Heather was too distraught to give an accurate description of the robbery. 2 ¶4. Mickey Baker, an investigator with the Mississippi Highway Patrol, also was called to investigate the robbery. Investigator Baker was notified that some sheriff’s deputies had located a black GMC pickup truck, still running, abandoned a short distance from the Whittingtons’ house. The truck had been reported stolen two days earlier in Memphis, Tennessee. Investigator Baker went to search the truck. Inside the truck, Investigator Baker found purple Bank of Albany money wrappers, which were later identified as the ones that had been wrapped around the cash Michael had received at the Bank of New Albany earlier that day. The wrappers contained the teller’s initials and the date “March 8, 2006.” After searching the truck, Investigator Baker received a call from a resident in the area claiming he had seen the black truck driving in the area earlier in the day, followed by a small lightblue car. ¶5. Investigator Baker visited the Whittingtons in the hospital at around 11:30 p.m. on the night of the robbery. At that time, the Whittingtons were able to give him a description of the robbers. Michael described one of the men as a medium-build, dark-skinned, AfricanAmerican male wearing a dark jacket and some kind of head covering, either a hood or a hat. This man was carrying a revolver. He believed the other man may have been white, but stated that he never got a good look at him. Heather described one of the robbers as a darkskinned African-American male with a “round chubby face” and rough complexion and at least one gold tooth. She stated that this man was wearing a camouflage hooded jacket. Heather described the other robber as a light-skinned African-American or white male with smoother complexion. This man was wearing a black or brown jacket and either a hood or 3 a hat. Heather estimated that both men were between 5' 10 and six feet tall and weighed between 180 and 200 pounds. ¶6. Through further investigation, the Union County Sheriff’s Department determined that the robbers were likely from the Memphis area. Several days prior to the robbery, Michael had called the police to report a black Volvo with Memphis tags driving past his house.1 The Whittingtons’ credit cards also had been used in the Memphis area after the robbery, prior to being cancelled. Michael owned a scrap-metal business and dealt primarily in cash, so Investigator Baker asked him to notify the sheriff’s department if he could think of anyone from the Memphis area with whom he recently had done business. ¶7. On April 4, 2006, Michael called the Union County Sheriff’s Department and stated that a man from Memphis named Steven Ryan Davis had just come to his shop to sell some scrap metal. Michael had done business with Davis on numerous occasions and always paid Davis in cash. Officers with the Union County Sheriff’s Department located Davis and stopped his vehicle. Davis was driving his father’s truck with a suspended license and no proof of insurance, so he was taken into custody. When questioned about the robbery, Davis denied any involvement in or knowledge of the crime. However, Davis did admit that he owned a light blue Plymouth Colt, which matched the description of the car seen near the Whittingtons’ house on the night of the robbery. Davis posted bond for his traffic offenses and was released from police custody the same day. 1 Michael testified that he followed the black Volvo away from his house and reported the license plate number to the police because he knew that no one living on County Road 56 drove that particular car. 4 ¶8. Investigator Baker later questioned Davis a second time while he was in custody in Memphis. At this interview, Davis admitted to his involvement in the robbery and provided Baker with information on two men nicknamed “Alligator” and “Baby J,” the other men involved in the robbery. ¶9. “Alligator,” also known as Allery Hopson, was arrested after the police recovered Heather’s rings from two pawn shops in Memphis and determined that he had pawned them. Hopson owned a black Volvo with Memphis tags matching the license-plate number recorded by Michael several days prior to the robbery. Investigator Baker described Hopson as a light-skinned African American with a smooth complexion, while he described McCoy as a dark-skinned African American with a round face and gold teeth. ¶10. “Baby J,” also known as James McCoy, subsequently contacted the Union County Sheriff’s Department and denied any involvement in the crime. After being told that the police were checking surveillance video from several places in Memphis where the Whittingtons’ credit cards had been used, McCoy contacted the sheriff’s department again and told them that Hopson and Davis had implicated him in the robbery in an attempt to keep Davis’s family from finding out about his involvement in the crime. He stated that he had loaned Hopson his phone on the night of the robbery and had met up with Hopson and Davis at a gas station in Memphis after the robbery. McCoy subsequently was arrested for the robbery, as well.",facts
+296,1160084,1,2,"King County argues that it is entitled to summary judgment, dismissing it from liability as a matter of law for it did not breach any duty owed to Ruff, nor was its conduct the legal cause of Ruff's injuries. Ruff insists that King County failed to correct a known hazard. Specifically, Ruff contends that the lateral area where Kennedy's car left the road was inadequate and irregular and a guardrail was needed to compensate for these defects. Ruff argues that summary judgment is not appropriate since these factors raise issues of fact as to King County's negligent maintenance of 154th Place S.E. [1-3] This court has stated that a summary judgment motion under CR 56(c) may be granted if the pleadings, affidavits, and depositions before the trial court establish that there is no genuine issue of material fact and that as a matter of law the moving party is entitled to judgment. Dickinson v. Edwards, 105 Wn.2d 457, 461, 716 P.2d 814 (1986); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The reviewing court must take the position of the trial court and assume facts most favorable to the nonmoving party. Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985); Braegelmann v. County of Snohomish, 53 Wn. App. 381, 383, 766 P.2d 1137, review denied, 112 Wn.2d 1020 (1989). A material fact is of such a nature that it affects the outcome of the litigation. Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980); Braegelmann, at 383. The issues of negligence and proximate cause are generally not susceptible to summary judgment. LaPlante v. State, 85 Wn.2d 154, 159, 531 P.2d 299 (1975); see also Ferrin v. Donnellefeld, 74 Wn.2d 283, 444 P.2d 701 (1968); Wojcik v. Chrysler Corp., 50 Wn. App. 849, 751 P.2d 854 (1988). However, when reasonable minds could reach but one conclusion, questions of fact may be determined as a matter of law. Hartley, at 775. In the instant case, the Court of Appeals reversed the grant of summary judgment because it found that a material question of fact existed as to whether a guardrail was necessary to make the roadway safe at this location. We do not agree. [4] Negligence consists of (1) the existence of a duty owed to the complaining party; (2) a breach of that duty; and (3) a resulting injury. Hansen v. Washington Natural Gas Co., 95 Wn.2d 773, 776, 632 P.2d 504 (1981); LaPlante, at 159. For legal responsibility to attach to the negligent conduct, the claimed breach of duty must be the proximate cause of the resulting injury. LaPlante, at 159. [5] A county has a duty to maintain its roadways in a reasonably safe condition for ordinary travel by persons using them in a proper manner. [2] Stewart v. State, 92 Wn.2d 285, 299, 597 P.2d 101 (1979); Provins v. Bevis, 70 Wn.2d 131, 138, 422 P.2d 505 (1967); Wojcik, at 854; see also Don F. Vaccaro, Annotation, Liability of Governmental Entity or Public Officer for Personal Injury or Damages Arising Out of Vehicular Accident Due to Negligent or Defective Design of a Highway, 45 A.L.R.3d 875 (1972). Accordingly, King County has a duty to maintain 154th Place S.E. in a reasonably safe condition for ordinary travel. The record shows that at the time of the accident the asphalt was in excellent condition. The striping along the roadway was clearly visible. The speed limit was clearly posted. The width of the road, including the shoulder, was normal for this type of roadway and the experts agreed that the signing was appropriate for the roadway. Notwithstanding, Ruff argues that his experts establish the need for a guardrail at the accident site, thus creating an issue of fact as to King County's negligence. [6-8] We recognize that the duty to maintain a roadway in a reasonably safe condition may require a county to post warning signs or erect barriers if the condition along the roadway makes it inherently dangerous or of such character as to mislead a traveler exercising reasonable care, or where the maintenance of signs or barriers is prescribed by law. Hansen, at 778; Lucas v. Phillips, 34 Wn.2d 591, 595, 209 P.2d 279 (1949); Tanguma v. Yakima Cy., 18 Wn. App. 555, 558-59, 569 P.2d 1225 (1977); see also Bartlett v. Northern Pac. Ry., 74 Wn.2d 881, 447 P.2d 735 (1968); Wessels v. Stevens Cy., 110 Wash. 196, 188 P. 490 (1920); Leber v. King Cy., 69 Wash. 134, 124 P. 397 (1912). This duty does not, however, require a county to update every road and roadway structure to present-day standards. Tanguma, at 560. Nor does the duty require a county to anticipate and protect against all imaginable acts of negligent drivers for to do so would make a county an insurer against all such acts. Stewart, at 299; see also Owens v. Seattle, 49 Wn.2d 187, 191, 299 P.2d 560, 61 A.L.R.2d 417 (1956). Ruff cites no ordinance or statute requiring the installation of barriers. However, he contends that since the lateral recovery area at the accident site was less than 10 feet wide, the American Association of State Highway and Transportation Officials (AASHTO) standards required installation of a guardrail. AASHTO standards have not, however, been officially adopted by King County. [3] The record shows that King County has promulgated its own standards and neither Ruff nor his experts assert that King County violated those standards. Moreover, King County and AASHTO guidelines do not require that roadways be retrofitted with new design structures. [4] Since Ruff does not argue that King County violated its road standards by failing to install a guardrail at 154th Place S.E. and no statute mandates these barriers, whether King County is negligent depends upon whether the roadway was inherently dangerous or deceptive to a prudent driver. As this court said in Leber : Here we have a road graded and in repair, fifteen feet wide, which is wide enough for all ordinary travel unless it be in the populous centers of the state. We think it will require no argument to make plain the fact that here there was no extraordinary condition or unusual hazard of the road. A similar condition is to be found upon practically every mile of hill road in the state. The same hazard may be encountered a thousand times in every county of the state. Roads must be built and traveled, and to hold that the public cannot open their highways until they are prepared to fence their roads with barriers strong enough to hold a team and wagon when coming in violent contact with them, the condition being the ordinary condition of the country, would be to put a burden upon the public that it could not bear. It would prohibit the building of new roads and tend to the financial ruin of the counties undertaking to maintain the old ones. The unusual danger noticed by the books is a danger in the highway itself. (Italics ours.) Leber, at 136-37. Under this standard, King County did not have a duty to install a guardrail at 154th Place S.E. [9] The undisputed evidence establishes that at the time of the accident the surface of 154th Place S.E. was in excellent condition, the markings and signing were appropriate, and the width of the road including the shoulder was standard. None of the experts testified that the roadway was inherently dangerous or deceptive. [5] Moreover, while the experts stated that a guardrail would have redirected the vehicle, no expert opined that a guardrail would have prevented injury. We cannot find negligence based upon speculation or conjecture. Kristjanson v. Seattle, 25 Wn. App. 324, 326, 606 P.2d 283 (1980). Consequently, based on the evidence, we conclude that no issue of material fact exists regarding the condition of the roadway. Since there is no duty to make a safe road safer, the trial court correctly granted King County's motion for summary judgment. In view of the foregoing, we need not reach King County's arguments that it was not the proximate cause of Ruff's injuries nor that its decision regarding placement of guardrails is protected by discretionary governmental immunity. The Court of Appeals is reversed. DURHAM, C.J., UTTER, DOLLIVER, SMITH, GUY, and JOHNSON, JJ., and ANDERSEN and BRACHTENBACH, JJ. Pro Tem., concur.",analysis
+297,4553879,1,1,"REO is a Nebraska limited liability company which owns residential rental property in Dorchester. Prior to May 1, 2017, tenants who leased REO’s property applied for utility services with Dorchester, paid a deposit, and received water, sewer, and electrical services. On May 1, 2017, Dorchester’s village board passed ordinance No. 684 mandating the use of village utility services and setting forth terms for billing, collection of bills, and discontinuance of service. As relevant to the instant case, “Section 3-002: Consumer’s Application; Service Deposit” provides: A. Every person or persons desiring utility services must make application therefor to the Village clerk, who shall require the applicant to make a service deposit and tap fees for water and sewer service in such amounts as set by resolution by the Village Board and placed on file at the Village office. . . . Utility services shall not be supplied to any house or private service pipe except upon the order of the utilities superintendent. B. Before a tenant’s utility application will be accepted, the landlord shall be required to sign an owner’s consent - 686 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 form and agree to pay all unpaid utility charges for his or her property. In July 2017, Ange Lara entered into a lease agreement with REO for the rental of REO’s Dorchester property. Pursuant to this agreement, Lara contacted Dorchester’s village clerk to apply for utility services and paid a $250 deposit with this application. At that time, Lara was informed that there was a prior, unpaid utility bill associated with a prior renter of the property and that she would not receive the services until this bill was paid and REO signed a form titled “Owner’s Consent and Guaranty of Payment for Unpaid Utility Charges for Rental Property.” Lara told a representative of REO about her interaction with the village clerk. An REO representative then contacted representatives of Dorchester and was informed of ordinance No. 684 and its requirement that REO sign the “Guaranty” before Lara could receive utility services for the property. The village clerk also reiterated the requirement that the prior tenant’s past-due bill be paid. REO responded to these requirements by asserting that ordinance No. 684 is invalid and that it would not sign the “Guaranty.” Due to this noncompliance, Dorchester refused to provide Lara utility services at the property in Lara’s name. However, Dorchester did begin to provide services to the property through an account set up in an REO representative’s name. At the time of this action, Dorchester had retained Lara’s deposit and was continuing to provide utility services for the property, still occupied and leased by Lara, through the REO representative’s account. In October 2017, REO filed a complaint seeking that the district court declare ordinance No. 684 void and unenforceable and order Dorchester to pay REO’s attorney fees and court costs. REO alleged four claims as follows: (1) Ordinance No. 684 violated the Equal Protection Clauses of article 1, § 3, of the Nebraska Constitution and the 14th Amendment to the U.S. Constitution; (2) ordinance No. 684 violated the Equal - 687 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 Credit Opportunity Act 1; (3) ordinance No. 684 violated the special legislation provision of article 3, § 18, of the Nebraska Constitution; and (4) ordinance No. 684 violated Nebraska’s Uniform Residential Landlord and Tenant Act. 2 Dorchester filed an answer which claimed, in part, that REO’s complaint failed to state a claim upon which relief could be granted and that REO’s claims were barred in whole or in part by the doctrine of unclean hands, laches, waiver, and estoppel. In May 2016, REO filed a motion for summary judgment claiming there were no genuine issues of material fact and it was entitled to judgment as a matter of law. Dorchester, in turn, also filed a motion for summary judgment, agreeing there were no genuine issues of material fact and claiming it was entitled to judgment as a matter of law. Following a hearing, the district court entered summary judgment for REO and overruled Dorchester’s motion. In its order, the court analyzed REO’s claim that ordinance No. 684 violated the Equal Protection Clauses. First, the court found that residential tenants and owners of Dorchester property were similarly situated under ordinance No. 684 for equal protection purposes. The court noted that by requiring a landlord to be a cosigner to a tenant’s utility obligations, but not requiring a residential owner to obtain a third-party cosigner, ordinance No. 684 treated tenants and owners differently. The court then found there was not a rational relationship between the difference in treatment and Dorchester’s interest in collecting unpaid bills from tenants. Specifically, the court reasoned that Dorchester’s policy was applied to tenants irrespective of their creditworthiness and ability to pay without taking into account the tenants’ security deposits and the ability of Dorchester to impose liens on the rented property or provide other remedies to meet Dorchester’s offered goal. Thus, the court determined ordinance No. 684 unconstitu­tionally vio­lated the 1 15 U.S.C. § 1691 et seq. (2012). 2 Neb. Rev. Stat. §§ 76-1401 to 76-1449 (Reissue 2018). - 688 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 Equal Protection Clauses and, because it found this claim dispositive, did not discuss REO’s remaining claims. ASSIGNMENT OF ERROR Dorchester assigns, consolidated and restated, that the district court erred by finding that ordinance No. 684 violated the Equal Protection Clauses of the U.S. and Nebraska Constitutions.",facts
+298,4566613,1,1,"After Kirk E. Brumbaugh obtained a jury verdict for less than the statutory minimum, he moved for attorney fees authorized but not mandated by statute. The district court denied the request. On appeal, we decline Brumbaugh’s invitation to abandon our longstanding procedure and to instead require that a trial court provide an explanation of its reasons regarding a fee decision. Finding no abuse of discretion, we affirm the district court’s judgment awarding no fees or costs.",introduction
+299,888265,1,1,"¶ 3 In July of 2004, MDOT initiated a condemnation action regarding a portion of American Bank's real property. After a hearing in 2005, the District Court dismissed MDOT's complaint with prejudice and awarded American Bank all necessary expenses of litigation. It ordered American Bank to submit a request for reasonable and necessary attorney fees, expert witness fees, exhibit costs, and court costs. ¶ 4 American Bank did not submit a request, but filed affidavits of two of its attorneys in support of award of attorney fees and necessary expenses of litigation. Triel D. Culver's affidavit stated, among other things, that a reasonable hourly rate for his work and that of attorney Cliff Edwards was $250, and a reasonable hourly rate for work performed by attorney Lori Armstrong was $125. Edwards' affidavit stated his hourly rate was $450, but he lowered it to $250 to be consistent with what other lawyers were charging in eminent domain cases in Flathead County. Edwards attached copies of the affidavits of local attorneys Frank B. Morrison, Jr., and Dale L. McGarvey regarding attorney fees for Wade J. Dahood's services in another Flathead County eminent domain case. Those affidavits addressed the affiants' hourly rates and Dahood's experience, skill and background. ¶ 5 MDOT filed a motion to retax costs, objecting to American Bank's requested attorney fees. Relying on § 70-30-306(2), MCA, MDOT asserted American Bank's requested hourly rates exceeded the customary hourly rates for an attorney's services in Flathead County, which MDOT posited were $150 or $175. In support, MDOT submitted affidavits of local attorneys Marshall Murray and Richard DeJana. American Bank opposed MDOT's motion, and submitted the affidavits of Douglas Wold and Sean Frampton—also attorneys in Flathead County—addressing the complexity of the case and Edwards' and Culver's respective experience and skill, as well as the City of Whitefish's stipulation to a $250 hourly rate in a different condemnation case. MDOT replied. ¶ 6 The District Court held a hearing, at which DeJana and Murray testified in support of a $150 hourly rate. No other witnesses testified. The District Court subsequently entered an order stating that—absent any challenge to the number of hours at issue, the hourly rates for Armstrong's work or any costs—the sole issue in MDOT's challenge to American Bank's requested $250 hourly rate for work by Edwards and Culver was the meaning of the phrase customary hourly rates in § 70-30-306(2), MCA. Rejecting MDOT's argument that § 70-30-306(2), MCA, sets forth a unique standard, the District Court applied jurisprudential factors and awarded fees based on hourly rates of $250 for Edwards, $200 for Culver, and $125 for Armstrong. MDOT appeals.",facts
+300,4537567,1,3,"[1] Garnishment is a legal proceeding. To the extent factual issues are involved, the findings of a garnishment hearing judge have the effect of findings by a jury and, on appeal, will not be set aside unless clearly wrong. 2 1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018). 2 ML Manager v. Jensen, 287 Neb. 171, 842 N.W.2d 566 (2014). - 672 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SCHAEFER SHAPIRO v. BALL Cite as 305 Neb. 669 [2,3] The district court and higher appellate courts generally review appeals from the county court for error appearing on the record. 3 When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 4",standard of review
+301,1692982,1,4,"Prior to addressing Gibbs-Miller's assigned error, we must determine whether the district court entered a final, appealable order, for before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. See State v. Hall, 252 Neb. 885, 566 N.W.2d 121 (1997).",jurisdiction
+302,2538217,1,2,1. Did the district court err in granting summary judgment to Ms. Bartschi on the basis that the Purchase and Sale Agreement was unenforceable under the statute of frauds because there was an insufficient property description? 2. Did the district court err in finding that Ms. Bartschi was not estopped from raising the statute of frauds as an affirmative defense? 3. Should the district court have awarded Ms. Bartschi's full amount of requested attorney fees? 4. Are either of the parties entitled to attorney fees on appeal?,issues
+303,2076570,1,2,"The defendant next argues that the evidence did not establish that he was the perpetrator of the crime or that he had the requisite intent to commit a felony. We first note our standard of review for sufficiency of the evidence: Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses. Loyd v. State, (1980) 272 Ind. 404, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. (citations omitted). Intent to commit a felony may be inferred from the circumstances surrounding the incident. Turpin v. State, (1982) Ind., 435 N.E.2d 1, 5; Bonner v. State, (1979) 271 Ind. 388, 392 N.E.2d 1169, 1171. Here there was sufficient evidence of probative value to support a reasonable inference that Defendant had the requisite intent to commit a felony. While Defendant claims that he went to the Ferris' home to search for his lost dog, he was seen there on three separate occasions by Witness Noll. The garage window was broken, and items from the garage were missing. Further, Noll witnessed a person matching the Defendant's description drive away in a green Blazer with a mower handle protruding from the back window and subsequently saw the same person carrying a tool box, enter a beige Buick automobile. Further, Defendant's claim that the testimony of Steven Pick, the owner of the beige Buick, was inherently unbelievable is without merit. Defendant has presented nothing which compels that conclusion. Inconsistencies were presented to the jury for its consideration. Defendant's explanation of his possession of the stolen property immediately following the burglary was apparently rejected by the jury which was free to believe whomever it chose in fulfilling its fact finding function. Collins v. State, (1981) Ind., 429 N.E.2d 623, 624. It is true that Witness Noll did not positively identify the Defendant as the person she saw at the Ferris' home; however, her description of the burglar was nearly identical to that of the Defendant as he was found, in possession of the stolen property, on the afternoon of the burglary.",issues
+304,1376005,1,4,"In summary, we reverse and remand for a hearing and findings as to: (1) whether Foley could have intervened in the Rice estate and is thereby precluded from collaterally attacking the fees charged the estate; and if not, the amount of fees to which he is entitled, if any; (2) whether the guardianship fees were properly waived by Morse; and if not, the amount of the fees to which Foley is entitled; (3) the present value of seventy-seven percent of one-half of the Hogan property to which Morse & Mowbray are entitled and the imposition of a constructive trust on the Hogan property to secure this amount; (4) a reassessment of the sanctions to be imposed on Foley; and (5) such other action and orders consistent with this opinion that are necessary for the complete disposition of this case. Due to the need for findings on the Rice estate issues, we vacate the sanctions that were awarded against Foley. With respect to the Hogan property, we reverse and remand for further proceedings as directed. On the remaining issues, we find Foley's contentions without merit. [3] ROSE, C.J., STEFFEN and SPRINGER, JJ., and GAMBLE, [4] District Judge, concur.",conclusion
+305,2654917,2,6,"Jenkins argues that the evidence was insufficient to sustain his convictions for conspiracy, obstruction of justice, and CPWL. Viewing the evidence, as we must, in the light most favorable to upholding the jury‟s verdict,79 we agree only to the extent that we find there was insufficient evidence to convict Jenkins of CPWL. 77 The evidence of Israel‟s commission of the shootings on Columbia Road would have been probative of his motive to kill Evans and render him unavailable to testify against him, and the evidence of Israel‟s participation in the conspiracy to kill Evans would have been relevant to show consciousness of guilt with respect to the Columbia Road incident. See Ford v. United States, 647 A.2d 1181, 1184 n.5 (D.C. 1994) (“[E]vidence of each joined offense would be admissible in a separate trial of the other” when the evidence “reflect[s] consciousness of guilt about the other charges.”); Hazel v. United States, 599 A.2d 38, 42 (D.C. 1991) (evidence of the other crimes properly admitted under the motive exception to Drew). 78 See McCoy v. United States, 760 A.2d 164, 185 n.28 & n.29 (D.C. 2000). 79 Sutton v. United States, 988 A.2d 478, 482 (D.C. 2010). 49 The conspiracy and obstruction of justice charges required the government to prove, in essence, that Jenkins plotted to prevent Evans from assisting the police and testifying with respect to the Columbia Road shootings, and that Jenkins killed Evans to accomplish that goal. The jury had ample evidence to find the government had met its burden of proof. To recapitulate, the evidence showed that Evans in fact had been cooperating with the investigation of the shootings, that this was no secret, and that Jenkins had pulled a gun on Evans and accused him of “snitching” on Israel. Moreover, the jury reasonably could understand Jenkins‟s recorded phone conversations with Israel to reveal that Jenkins and Israel had plotted to prevent Evans from being a witness against Israel. The evidence further proved that Jenkins was the last person seen with Evans, that they went off together just a few hours before Evans was murdered, and that his murderer left the scene of the crime in a vehicle that looked like Jenkins‟s SUV. Forensic analysis of the tire tracks left at the scene of the murder added to the likelihood that Jenkins‟s vehicle was involved. While the evidence was circumstantial, and “direct or physical evidence” (as Jenkins puts it) was lacking, that did not render the government‟s proof insufficient; nor was the government obliged to disprove every possible theory of innocence that Jenkins put forward.80 Finally, the fact that 80 Smith v. United States, 809 A.2d 1216, 1221 (D.C. 2002). 50 the jury hung with respect to the first-degree murder charge does not impeach his conviction for obstruction, even assuming the two outcomes are not easily reconciled.81 We do not find sufficient evidence to uphold Jenkins‟s conviction for carrying a pistol without a license,82 however. The government argues that the evidence permitted the jury to infer that Jenkins participated in the armed murder of Evans and therefore carried a firearm at that time, and it is uncontested that Jenkins was unlicensed, but that does not end the inquiry. To convict Jenkins of CPWL, there needed to be proof that the firearm Jenkins carried was a “pistol,” a statutorily-defined term meaning that the firearm‟s barrel had to be less than 12 inches in length.83 The government presented no evidence that the firearm was a pistol; it was not recovered, no witness professed to have seen it, and no forensic evidence shed light on the nature of the firearm used to kill Evans. Consequently, Jenkins‟s conviction for CPWL must be reversed for insufficiency of the evidence. 81 See Whitaker v. United States, 617 A.2d 499, 503 (D.C. 1992) (noting that conviction for possession of a firearm during a crime of violence may stand even though the jury deadlocked on the predicate charge of assault with a dangerous weapon.) 82 See former D.C. Code § 22-4504(a) (2001). 83 See former D.C. Code § 22-4501(a) (2001). 51",sufficiency of the evidence
+306,2295141,1,2,"As a threshold issue, we consider WASA's argument that the Superior Court did not have jurisdiction to consider Euclid Street's claims because Euclid Street was required by statute to timely appeal the WASA Hearing Officer's decision directly to this court. [2] We conclude that because this case did not arise from a contested case over which this court has exclusive jurisdiction, the complaint was properly filed in Superior Court. The District of Columbia Administrative Procedure Act (APA) provides that [a]ny person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case, is entitled to a judicial review thereof in accordance with this subchapter upon filing in the District of Columbia Court of Appeals a written petition for review. D.C.Code § 2-510(a) (2001) (emphasis added); see also D.C.Code § 2-509 (discussing the procedures for adjudicating a contested case). [3] It is well established that the APA vests this court with exclusive jurisdiction to review an agency's decision regarding a contested case. See, e.g., 2348 Ainger Place Tenants Ass'n, Inc. v. District of Columbia, 982 A.2d 305, 308 (D.C.2009) (Where the District of Columbia Administrative Procedure Act vests exclusive jurisdiction in this court over review of administrative actions, the Superior Court may not maintain concurrent jurisdiction.). Thus, a Superior Court action that constitutes a challenge to a previous agency action . . . would be brought in the wrong court. Id. (quoting Fair Care Found. v. District of Columbia Dep't of Ins. and Sec. Regulation, 716 A.2d 987, 997 (D.C.1998)). Only certain types of administrative proceedings are governed by the procedural requirements of a contested case, however. The APA defines a contested case as a proceeding before the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are required by any law . . . or by constitutional right, to be determined after a hearing before the Mayor or before an agency. D.C.Code § 2-502(8). We have held that the phrase contested case refers to a trial-type hearing that is adjudicatory and is concerned basically with weighing particular information and arriving at a decision directed at the rights of specific parties. Dupont Circle Citizen's Ass'n v. District of Columbia Zoning Comm'n, 343 A.2d 296, 299 (D.C.1975) (en banc); accord Timus v. District of Columbia Dep't of Human Rights, 633 A.2d 751, 756 (D.C.1993) (en banc). In contrast, if an agency is acting in a legislative capacity, making policy decisions directed toward the general public, then administrative proceedings are not governed by the contested case requirements of the APA. Dupont Circle Citizen's Ass'n, 343 A.2d at 299. Although we have recognize[d] . . . that the distinction between legislative and adjudicative proceedings is not always precise, id. at 300, we have adopted the factual distinction that: Adjudicative facts are the facts about the parties and their activities, businesses, and properties. Adjudicative facts usually answer the questions of who did what, where, when, how, why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury in a jury case. Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion. Id. (quoting 1 K. Davis, Administrative Law § 7.02 at 413 (1958)); accord Citizens Ass'n of Georgetown, Inc. v. Washington, 291 A.2d 699, 704 & n. 14 (D.C.1972). The procedures that allow WASA's customers to contest any water bill, 21 DCMR § 400.1, in an administrative proceeding would, in most instances, involve a determination of adjudicative facts. See generally King v. District of Columbia Water and Sewer Auth., 803 A.2d 966 (D.C.2002) (considering an appeal from a WASA Hearing Officer's order dismissing customer protest of four water bills). WASA's regulations specifically provide that contest[ed] bills may be challenged at a hearing, the purpose of which is to provide the petitioner with an opportunity to appeal . . . [t]he validity of any water. . . service charge. 21 DCMR § 410.1(a). A Hearing Officer has broad powers to preside over a hearing and may issue subpoenas, take testimony, grant requests for discovery, hold settlement conferences, request additional investigative reports by WASA, and rule on motions. 21 DCMR § 414.4. WASA is also vested with the authority to investigate a challenged bill by verifying computations and meter readings and conducting an on-site inspection of the premises and the water meter, among other powers. 21 DCMR § 403.2. Here, however, the petition that Euclid Street filed with WASA was not the usual challenge to the particulars of a water bill, and the proceeding before the Hearing Examiner did not address the who . . . what, where, when, how, [or] why of a specific bill and lacked the most basic hallmarks of a contested case as it did not involve the presentation and consideration of evidence. [4] Rather than focusing on adjudicative facts, Euclid Street's petition to WASA focused on questions of law and policy, Dupont Circle Citizen's Ass'n, 343 A.2d at 300, such as: [w]hether new tenants are liable to WASA for the delinquent accounts of former tenants, [w]hether Euclid Street is liable to WASA for the delinquent WASA accounts of the tenants, and [w]hether WASA's policy of placing and maintaining liens on [1]460 Euclid Street . . . violates the Due Process Clause of the Constitution . . . [and] the Takings Clause of the Constitution. Indeed, the WASA Hearing Officer concluded that she did not have authority to review Euclid Street's petition in part because it was clear that neither party [at the hearing] . . . was able to identify the specific bill or bills that the customer believed were inaccurate. Nor, apparently, did Euclid Street identify which bills were being disputed, and were therefore subject to the hearing. Thus, as the Hearing Officer explained, [a]fter more than an hour of testimony, it became clear that this hearing was not about the accuracy of the bills, but rather about the method that WASA chose to try to collect unpaid bills. [5] We similarly conclude that although the hearing before WASA pertained to a specific property—1460 Euclid Street—the issues articulated by counsel were legal in nature and did not require an evidentiary hearing to determine disputed facts. See Citizens Ass'n of Georgetown, Inc., 291 A.2d at 705 (holding that a hearing by the District's Zoning Commission was not adjudicative in part because [i]t is difficult to conceive that factual findings would be required on the particular status of specific individuals). Indeed, Euclid Street's request appears to have been, for all practical purposes, a request for a declaratory order under D.C.Code § 2-508, [6] and we are barred by the APA from directly reviewing an agency's refusal to issue such an order. Id. WASA does not dispute that the Hearing Officer properly determined she was not authorized to entertain a petition asking for such relief. As the administrative hearing petition did not involve a contested case, Euclid Street's appeal was properly brought before the Superior Court, and need not have been filed first with WASA. [7]",jurisdiction
+307,842332,1,3,"
+Const. 1963, art. 8, § 9 states: The legislature shall provide by law for the establishment and support of public libraries which shall be available to all residents of the state under regulations adopted by the governing bodies thereof. Defendant argues that a public library is available for purposes of our constitution when it is subject to entry and its resources subject to use on site. We disagree. Instead, we agree with plaintiff that a public library is only available when a person enjoys reasonable borrowing privileges. In particular, we agree with plaintiff that, in construing our constitution, available must be assessed specifically in conjunction with public libraries. Although this may not necessarily be true with regard to research libraries or private libraries, we believe that the common understanding is that public libraries are only available to a person if he has reasonable borrowing privileges. [2] However, we disagree with plaintiff's premise that Const. 1963, art. 8, § 9 requires that each individual public library facility in Michigan must be available on identical terms to all residents of the state. Rather than addressing the obligations of individual library facilities, this provision is better understood, in our judgment, as assuring the availability of public libraries in general. [3] That is, the Legislature shall make public libraries available, not necessarily each individual library facility. Const. 1963, art. 8, § 9 does not refer to each and every public library or to individual public library facilities, but refers only to the legislative obligation to provide for the establishment and support of public libraries. By this use of the plural, as well as the use of the broad terms establishment and support, we believe that the constitution refers to public libraries as an entity, i.e., public libraries as an institution. It is this entity, this institution — the public library — that must be made available to all residents, not each individual library facility. [4] By way of example, the very same article of the constitution reads, [r]eligion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. Const. 1963, art. 8, § 1. Such encourage[ment] of schools, to continue forever, does not, we believe, prohibit the cities of Detroit or Saginaw, for example, from ever closing an underutilized or an out-of-date school, for individual school facilities are simply not the subject of this provision. Rather, it is schools as an entity, as an institution, that must forever be encouraged. [5] Likewise, in Const. 1963, art. 8, § 9, it is not each individual library facility that must be made available, but rather public libraries as an entity or as an institution that must be made available. And this is precisely what the Legislature has done. Acting pursuant to its constitutional obligation to provide by law for the establishment and support of public libraries which shall be available to all residents of the state, the Legislature has enacted numerous laws. [6] The premise of these laws appears to be that the mandate of the constitution can best be achieved by (a) the encouragement of local control of public libraries; [7] and (b) the establishment of a system in which communities with public libraries can enter into agreements with communities without public libraries in order to extend access to such libraries. [8] By these principles— local control and the encouragement of interjurisdictional agreements— the Legislature has sought to satisfy its constitutional obligations by incentivizing communities both to build and to maintain libraries, and to extend their availability to communities that lack a library. Had the Legislature acted unwisely in the adoption of these principles, it nonetheless would be entitled to considerable deference from this Court, for it is the Legislature explicitly that has been given primary responsibility by the constitution for the establishment and support of public libraries. However, it seems clear that the Legislature, with the support of the public library community, has acted wisely. Justice Cavanagh acts considerably less wisely in seeking to substitute his own judgment for that of the Legislature. He would undo the incentives enacted by the Legislature for the establishment and maintenance of public libraries. He would disincentivize communities from building libraries by making them identically available to persons who had and who had not paid for them; he would disincentivize communities from maintaining libraries by making improvements and new accessions identically available to persons who had and who had not paid for them; he would disincentivize non-library communities from entering into cooperative agreements with library communities by allowing persons to enter into individual agreements; and he would deprive library communities of the revenues that would be lost as a result of the combination of these disincentives. [9] As a result, over time, Justice Cavanagh would almost certainly produce an environment in which fewer new libraries are constructed, fewer new books are purchased, fewer cooperative agreements are reached, and local support of public libraries declines. Public libraries would become less, not more, available, although Justice Cavanagh doubtless would take solace that every resident would have absolutely identical access to the dwindling and outworn library resources of the state. Pursuant to Const. 1963, art. 8, § 9, it is the Legislature that is empowered to exercise judgments concerning how to provide by law for the establishment and support of public libraries. Although Justice Cavanagh is free to disregard economic realities and to ignore the logic of incentives and disincentives, the Legislature is not obligated to proceed along these same lines. The Legislature, altogether reasonably we believe, has determined that the availability of public libraries is best achieved through the institutions of local control and the encouragement of cooperative agreements. We defer to this judgment. Indeed, it appears from statistics offered by the Michigan Department of History, Arts, and Libraries that less than 1/5 of 1 percent of the population of Michigan does not have a public library available either directly through their communities or through a cooperative agreement. [10] This is to be contrasted with the history of the predecessor provision to Const. 1963, art. 8, § 9, which mandated that the Legislature establish public libraries in every township and city. After 125 years of such a mandate in 1962, a public library had been established in only 7 percent of the cities and townships of Michigan. [11] Particularly against this historical backdrop, the Legislature's judgment that public libraries can best be made available by encouraging local control and cooperative agreements, and thereby incentivizing their establishment and support, appears to be an entirely reasonable and responsible judgment that should not be upset by this Court. [12]
+Plaintiff also argues that the township library's policy of not offering nonresident book-borrowing privileges violates his First Amendment right to receive information under the United States Constitution, [13] and his right not to be deprived of the equal protection of the laws under the United States and Michigan constitutions. [14] We disagree. Plaintiff cites four cases to support his argument that the township library's policy of not offering nonresident book-borrowing privileges violates the First Amendment. The first case — Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) — held that a municipal ordinance that prohibited people from knocking on doors to distribute leaflets violated the First Amendment. The second case — Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) — held that a state statute prohibiting the use of contraceptives violated the right of marital privacy. The third case — Kreimer v. Morristown Bureau of Police, 958 F.2d 1242 (C.A.3, 1992) — held that a public library's rule prohibiting disruptive behavior and offensive bodily hygiene did not violate the First Amendment. The fourth case — Salvail v. Nashua Bd. of Ed., 469 F.Supp. 1269 (1979) — held that a school board's removal of a certain magazine from the library based on its content violated the First Amendment. First, we must note that we are, of course, not bound by either Kreimer or Salvail. Abela v. Gen. Motors Corp., 469 Mich. 603, 606, 677 N.W.2d 325 (2004). Second, and most importantly, not one of the cases that plaintiff cites held, or even remotely suggested, by implication or otherwise, that the First Amendment requires a public library to offer nonresident book-borrowing privileges. The most relevant case cited is Kreimer, supra at 1255, which merely held that the First Amendment protects the right to some level of access to a public library. In this case, the township library indisputably allows nonresidents some level of access to a public library. Therefore, even under Kreimer — the most relevant and the most favorable case that plaintiff has cited in support of his argument, although we emphasize again not a case that is controlling or that has been adopted in this state — it is clear that a township library's policy of not offering nonresident book-borrowing privileges does not violate the First Amendment. Plaintiff's equal protection challenge likewise fails. Plaintiff alleges no discrimination here based on race, national origin, ethnicity, gender, or illegitimacy. Accordingly, this Court applies a rational basis analysis. [15] See, e.g., Crego v. Coleman, 463 Mich. 248, 259-260, 615 N.W.2d 218 (2000). Under such an analysis, courts will uphold legislation as long as that legislation is rationally related to a legitimate government purpose. Crego, supra at 259, 615 N.W.2d 218. In order to have a law declared unconstitutional, a challenger must demonstrate that it is arbitrary and that the law is `wholly unrelated . . . to the objective of the statute.' Id., quoting Smith v. Employment Security Comm., 410 Mich. 231, 271, 301 N.W.2d 285 (1981). No showing of this sort is possible here. The purpose of the township library's residency requirement is to create a viable means of establishing and maintaining a local public library; it is a means consistent with the Legislature's constitutional direction to make public libraries available to the residents of this state. For the reasons discussed in this opinion, the library's regulations are a reasonable way to achieve its purpose, and, thus, there is no equal protection violation.",analysis
+308,4360166,1,1,"Eagle Partners, L.L.C., doing business as Keller Williams Greater Omaha, doing business as Keller Williams Realty, a Nebraska limited liability company (Keller), filed suit against Donna L. Rook, successor personal representative of the estate of Donald H. Lienemann (the Estate), in the district court for Sarpy County, Nebraska. The district court granted summary judgment in Keller’s favor, finding that Keller had established that the Estate breached a contract involving the sale of real property. The district court awarded Keller damages in the amount of $97,473.60, plus prejudgment interest at the legal rate of 12 percent per annum from and after December 30, 2016. We removed this case to our docket pursuant to our authority under Neb. Rev. Stat. § 24-1106(3) (Supp. 2017). We reverse the decision of the district court and remand the cause with directions to enter summary judgment in favor of the Estate.",introduction
+309,1806535,1,3,"The test of whether the evidence is sufficient to sustain a verdict is whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true. Lock v. State (1966), 31 Wis. 2d 110, 114, 142 N. W. 2d 183; State v. Spring, ante, p. 333, 179 N. W. 2d 841. We have examined the record and have come to the conclusion the evidence is sufficient to sustain the jury's verdict that Cassel endangered the safety of Hundt by conduct regardless of life. Each of the three elements of this crime was adequately proved: (1) The conduct was imminently dangerous to another; (2) the conduct was of such a character it evinced a depraved mind regardless of human life; and (3) such conduct did endanger the safety of another. See State v. Dolan (1969), 44 Wis. 2d 68, 73, 170 N. W. 2d 822. Cassel's argument seems to be that the shot he fired struck the automobile and not Officer Hundt and therefore his conduct was not imminently dangerous and did not endanger the safety of Hundt. The facts on this issue were in dispute. Cassel said the gun went off accidentally in the car and hit the windshield. Hundt testified Cassel shot at him but hit the car. The chip out of the windshield is from the outside, not the inside, and the jury believed and had a right to believe the testimony of the officer. True, Cassel was a poor marksman but if his marksmanship had been any better he might have been charged with murder.",sufficiency of the evidence
+310,2523992,1,2,"The facts are not in dispute. On April 19, 2001, Martha Rosen was injured in an accident with another driver. The other driver's vehicle was insured for a maximum limit of $25,000 for claims of bodily injury, while Rosen's automobile insurance includes underinsured-motorist coverage with a maximum limit of $500,000. Rosen filed a claim with her insurer, Phoenix Insurance Company, requesting coverage under the underinsured-motorist provisions of her policy. The arbitration agreement contained in the underinsured-motorist coverage provides: A. If we and an `insured' do not agree: 1. Whether that person is legally entitled to recover damages under this endorsement; or 2. As to the amount of damages; either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If such arbitrators are not selected within 45 days, either party may request that the arbitration be submitted to the American Arbitration Association. B. We will bear all the expenses of the arbitration except when the `insured's' recovery exceeds the minimum limit specified in the Illinois Safety responsibility law. If this occurs, the `insured' will be responsible up to the amount by which the `insured's' recovery exceeds the statutory minimum for: 1. Payment of his or her expenses; and 2. An equal share of the third arbitrator's expenses. C. Unless both parties agree otherwise, arbitration will take place in the county in which the `insured' lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding as to: 1. Whether the `insured' is legally entitled to recover damages; and 2. The amount of damages. This applies only if the amount does not exceed the minimum limit for bodily injury liability specified by the Illinois Safety Responsibility Law. If the amount exceeds that limit, either party may demand the right to a trial. This demand must be made within 60 days of the arbitrators' decision. If the demand is not made, the amount of damages agreed to by the arbitrators will be binding. (Emphasis added.) Following arbitration, Rosen was awarded $382,500, subject to reduction by all applicable set-offs in favor of Travelers Insurance Company,[ [1] ] including but not limited to medical payments made by Travelers Insurance Company. Phoenix filed a complaint in the Cook County circuit court rejecting the arbitration award and demanding a jury trial, citing the so-called trial de novo  provision of paragraph (C)(2) of the arbitration agreement, quoted above. Rosen filed an answer in which she asserted as an affirmative defense that the trial de novo provision was invalid and unenforceable as against the public policy of the State of Illinois. She also filed a counterclaim asking the court to enforce the arbitration award in her favor. Phoenix filed a section 2-615 motion to strike the affirmative defense and counterclaim for failure to state a claim. 735 ILCS 5/2-615 (West 2006). Phoenix relied on Zappia v. St. Paul Fire & Marine Insurance Co., 364 Ill.App.3d 883, 301 Ill. Dec. 587, 847 N.E.2d 597 (1st Dist.2006), in which the appellate court upheld a trial de novo clause in a similar underinsured-motorist policy. After briefing, the court granted Phoenix's motion, striking Rosen's affirmative defense and dismissing her counterclaim with prejudice. The court's order included a finding that the dismissal of the counterclaim was final and there was no just reason to delay appeal or enforcement of that dismissal, pursuant to Supreme Court Rule 304(a) (Ill. S.Ct. R. 304(a) (eff.Feb.26, 2010)). Rosen appealed, and the appellate court reversed. No. 1-08-2776 (unpublished order under Supreme Court Rule 23). The appellate court noted that prior decisions regarding the enforceability of trial de novo provisions in underinsured-motorist policies has varied, citing two cases in which such provisions were struck down as violative of public policy: Fireman's Fund Insurance Cos. v. Bugailiskis, 278 Ill. App.3d 19, 214 Ill.Dec. 989, 662 N.E.2d 555 (2d Dist.1996), and Parker v. American Family Insurance Co., 315 Ill.App.3d 431, 248 Ill.Dec. 375, 734 N.E.2d 83 (3d Dist. 2000). The court also reviewed Kost v. Farmers Automobile Insurance Ass'n, 328 Ill.App.3d 649, 262 Ill.Dec. 756, 766 N.E.2d 676 (5th Dist.2002), in which the court allowed an insured to invoke the trial de novo clause, and Zappia, in which the court rejected Bugailiskis and found that the clause was enforceable. After considering these cases, the court concluded that Zappia was the exception to the rule and declined to follow it. The court found that the trial de novo provision unfairly and unequivocally favors the insurer over the insured because an insurance company is unlikely to appeal a low binding arbitration award while very likely to appeal a high award. The court also found that such provisions violate the public policy considerations in support of arbitration by increasing the time and costs required to settle the dispute. The court therefore found that trial de novo provisions in underinsured clauses are against public policy in Illinois. We granted Phoenix's petition for leave to appeal. Ill. S.Ct. R. 315 (eff.Feb.26, 2010). We subsequently granted the Illinois Trial Lawyers Association leave to submit an amicus curiae brief in support of Rosen. Ill. S.Ct. R. 345 (eff.Sept.20, 2010).",facts
+311,2200483,1,1,"Defendant was charged in an information in three counts as follows: Count I — Burglary, breaking and entering to commit Rape and Robbery Count II — the Rape alleged in Count I Count III — the Robbery alleged in Count I Relying upon the doctrine of merger, he contends that the trial court erred in denying his motion to dismiss Counts II and III and in subsequently imposing sentences upon those counts. He argues that the Rape alleged in Count II and the Robbery alleged in Count III merged into Count I because they were charged as elements of the Burglary alleged in Count I. He cites Sansom v. State, (1977) 267 Ind. 33, 35-36, 366 N.E.2d 1171, 1172, wherein we held that the theft and automobile banditry charged were incidental to the burglary also charged and merged therein. However, Sansom was overruled by Elmore v. State, (1978) 269 Ind. 532, 539-40, 382 N.E.2d 893, 897-98. In Elmore, we abandoned the transactional concept, adopted the identity of offense or same evidence rule of Blockburger v. United States, (1932) 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309, and held that the lesser offense of theft did not merge into the greater offense of conspiracy to commit the theft also charged. Rape and Robbery, by their statutory definitions, are not lesser included offenses of Burglary even when they are charged as the felony the accused intended when he broke and entered. An accused may be convicted of Burglary regardless of whether he completes the felony alleged to have been intended. Estep v. State, (1979) Ind., 394 N.E.2d 111, 114. Moreover, we have upheld convictions and sentences upon multiple offenses, including Burglary, which arose from the same transaction. Adams v. State, (1979) 270 Ind. 406, 411, 386 N.E.2d 657, 661 (Since a conviction for burglary requires proof of facts in addition to those required for convictions of armed rape, robbery and sodomy, the offenses are not the same and separate sentences were properly imposed for each.). The record discloses no error upon this issue.",issues
+312,4644407,1,1,"Timothy J. Clausen appeals from sentences imposed pursuant to jury convictions related to a prison escape. Clausen primarily argues that rulings—striking his testimony for repeated misconduct and his witness’ testimony for refusing crossexamination, and excluding other evidence—prevented him from presenting a duress defense. Because his own actions, his - 972 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CLAUSEN Cite as 307 Neb. 968 witness’ choice, and the inadmissibility of his other evidence fundamentally crippled his defense, his claims lack merit. Finding no reversible error or abuse of discretion, we affirm.",introduction
+313,4529244,1,2,"¶11 We begin our analysis by setting forth the applicable standard of review. We then discuss the pertinent provisions of the Code. We end by addressing whether the BOCC properly construed these provisions and whether it abused its discretion by classifying the mountain coaster project as a Park and Recreation Facility, rather than as an Outdoor Commercial Recreation or Entertainment Establishment. 7
+¶12 “Our review under C.R.C.P. 106(a)(4) is limited to ‘a determination of whether the [governmental] body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer.’” Ad Two, Inc. v. City & Cty. of Denver, 9 P.3d 373, 376 (Colo. 2000) (alteration in original, quoting C.R.C.P. 106(a)(4)(I)). Accordingly, in reviewing an administrative decision under C.R.C.P. 106(a)(4), we sit in the same position as the district court. Id. ¶13 In conducting our review under C.R.C.P. 106(a)(4), we apply a deferential standard, and we may not disturb the governmental body’s decision absent a clear abuse of discretion. Stor-N-Lock Partners #15, LLC v. City of Thornton, 2018 COA 65, ¶ 22, __ P.3d __. A governmental entity abuses its discretion only when it applies an erroneous legal standard or when no competent evidence in the record supports its ultimate decision. See id. We will conclude that no competent evidence supported an administrative decision only when that decision was “so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority.” Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff’s Dep’t, 196 P.3d 892, 900 (Colo. 2008). 8
+¶14 Yakutat’s property falls within an RE-1 Rural Estate Zoning District. The Code defines such a district as one “established to protect and preserve some of the most rural areas of the Estes Valley in which significant view sheds, woodlands, rock outcroppings, ridgelines, other sensitive environmental areas and low-density residential development comprise the predominant land use pattern.” Estes Valley Dev. Code § 4.3(A)(1) (Apr. 2020). ¶15 Under the Code, certain uses are expressly permitted in an RE-1 Rural Estate Zoning District. Id. at § 4.3(B). As pertinent here, a Park and Recreation Facility is one such permitted use. Id. An Outdoor Commercial Recreation and Entertainment Establishment, in contrast, is not. See id. (not listing such a use as one of the permitted uses). ¶16 At the time pertinent here, the Code defined “Park and Recreation Facilities” as “[p]arks, playgrounds, recreation facilities and open spaces.” Estes Valley Dev. Code § 13.2(C)(34) (Jan. 2019). Although at one point, this provision required that such uses be non-commercial, the definition was amended to eliminate that restriction. See Bd. of Trustees of the Town of Estes Park, Colo., Ordinance No. 17-17 (2017). ¶17 “Commercial Recreation or Entertainment Establishments, Outdoor,” in turn, were and are defined as “[a]ny outdoor enterprise whose main purpose is to 9 provide the general public with an amusing or entertaining activity, where tickets are sold or fees collected at the gates of the activity.” Apr. 2020 Code, at § 13.2(C)(13)(a). The Code lists as examples of this classification “go-kart tracks, outdoor mazes, riding academies, roping arenas, livery stables, equestrian arenas, amusement parks, golf driving ranges, miniature golf facilities and zoos.” Id. at § 13.2(C)(13)(b). ¶18 The Code provides that use classifications such as these “classify land uses and activities based on common functional, product or physical characteristics. Characteristics include the type and amount of activity, the type of customers or residents, how goods or services are sold or delivered and site conditions.” Id. at § 13.2(A). ¶19 To assist the pertinent governmental authorities in determining a subject property’s appropriate use classification, the Code sets forth the following considerations that are to be used: 1. The actual or projected characteristics of the subject use compared to the stated characteristics of each use classification allowed in the zoning district . . . ; 2. The relative amount of site area or floor space and equipment devoted to the use; 3. Relative amounts of sales from the subject use compared to other permitted uses; 4. The relative number of employees in each use; 10 5. Hours of operation; 6. Building and site arrangement; 7. Vehicles used with the use; 8. The relative number of vehicle trips generated by the use; 9. Signs expected in conjunction with the use; 10. How the use advertises itself; 11. Whether the use is likely to be found independent of other uses on the site; 12. Any other potential impacts of the subject use relative to other specific uses included in the classification and permitted in the applicable zoning district; and 13. Whether the subject use is consistent with the stated intent and purposes of this Code and the zoning district in which it is to be located. Id. at § 3.12(C). C. The BOCC’s Construction of the Code and Exercise of Discretion ¶20 Applying the foregoing provisions, the Department concluded, and the BOCC affirmed, that the purposes of the Code and consideration of the factors set forth therein warranted classification of the mountain coaster project as a Park and Recreation Facility. The Neighbors now contend that in so concluding, the BOCC misconstrued the Code and otherwise abused its discretion. We are unpersuaded. ¶21 As an initial matter, we conclude that the BOCC correctly construed the applicable Code provisions. 11 ¶22 As both the Department and the BOCC recognized, the mountain coaster project could possibly be classified as either a Park and Recreation Facility or as an Outdoor Recreation or Entertainment Establishment. Specifically, at the time pertinent here, Park and Recreation Facilities were defined to include recreation facilities, and the mountain coaster at issue here certainly would fall within that definition. See Jan. 2019 Code, at § 13.2(C)(34). Conversely, an Outdoor Commercial Recreation or Entertainment Establishment was and is defined as “[a]ny outdoor enterprise whose main purpose is to provide the general public with an amusing or entertaining activity,” and the mountain coaster would fit within that definition as well. Apr. 2020 Code, at § 13.2(C)(13)(a). ¶23 Faced with this potential overlap, both the Department and the BOCC looked to the purposes of the Code, as well as to the above-quoted considerations set forth therein that were to be used to determine a particular use’s classification. See id. at §§ 1.3(H), 3.12(C). In our view, this method of analysis was not only proper but also it was mandated by the Code. ¶24 As noted above, section 3.12(C)(13) requires the Department, in determining the appropriate classification of a proposed use, to consider whether the subject use was “consistent with the stated intent and purposes of this Code.” One such purpose is to encourage development that preserves and protects the character of the community and minimizes objectionable noise, glare, odor, traffic, and other 12 impacts of such development, especially when adjacent to residential uses. See id. at § 1.3(H). ¶25 In addition, section 3.12(C) sets forth the considerations that must be examined in making a use classification. These include, among other things, the characteristics of the subject use compared to the characteristics of each use classification allowed in the zoning district, the relative amount of site area devoted to the use, the building and site arrangement, the relative number of vehicle trips generated by the use, and any other potential impacts of the subject use relative to other specific uses included in the classification and permitted in the applicable zoning district. Id. at § 3.12(C). ¶26 In our view, in considering the intensity of the mountain coaster’s use, the increase in intensity resulting from that use, the consistency of the use with the definition of a Park and Recreation Facility, the contrast between this use and uses such as an amusement park (which would be an Outdoor Commercial Recreation or Entertainment Establishment), and the applicable law, the BOCC complied with the requirement that it consider both the purposes of the Code and the pertinent factors enumerated therein and described above. ¶27 For these reasons, we perceive no error of law in the BOCC’s construction of the pertinent Code provisions or in the analytical framework that it employed. 13 The question thus becomes whether the BOCC abused its discretion in applying this framework to the facts of this case. We conclude that it did not. ¶28 Here, as noted above, the BOCC found that (1) the mountain coaster would be a low-intensity use, given that it would occupy a total footprint of eight acres near the middle of a 160-acre tract and that the number of vehicle trips and the visual and noise impacts that it would generate would be minimal; (2) the coaster would essentially follow existing horse trails and would therefore effect only a modest intensification of use; (3) the definition of Park and Recreation Facility had been amended to remove the requirement that the use be non-commercial; (4) the coaster would be a single attraction and thus would not constitute an amusement park; and (5) the common law favors construing property restrictions in favor of the free use of land. ¶29 The record amply supports each of these findings. Indeed, the Neighbors do not appear to challenge, in a substantive way, any of such findings. Rather, at root, the Neighbors essentially ask us to reweigh the evidence and conclude that the mountain coaster is an Outdoor Commercial Recreation or Entertainment Establishment because, in the Neighbors’ view, the project more closely fits that definition than the definition of a Park and Recreation Facility. ¶30 Although the Neighbors’ argument is not without force, and indeed we might have reached a different conclusion than the BOCC were we deciding this 14 case in the first instance, under our applicable standard of review, we do not do so. Instead, our review is limited to whether the BOCC correctly construed the applicable Code provisions and, if so, whether it abused its discretion in applying those provisions to the facts before it. On the facts presented here, and given the substantial deference that we must afford the BOCC’s determination, see Stor-N-Lock Partners, ¶ 22, we cannot say that the BOCC abused its discretion in finding that the mountain coaster was a Park and Recreation Facility within the meaning of the Code. ¶31 In so concluding, we are not persuaded by the Neighbors’ contentions that (1) the removal of the requirement of non-commercial use from the definition of Park and Recreation Facilities was merely a housekeeping change that was intended to allow farmers’ markets to continue and (2) allowing commercial uses on private land was an unintended consequence of that legislative amendment. These contentions effectively ask us to rewrite the definition of Park and Recreation Facilities to preclude all non-commercial uses other than the existing farmers’ markets. This, however, we cannot do. See People v. Cali, 2020 CO 20, ¶ 17, 459 P.3d 516, 519 (“We do not add words to a statute or subtract words from it.”); Town of Erie v. Eason, 18 P.3d 1271, 1275 (Colo. 2001) (“To properly construe a municipal ordinance, we must turn to the rules of construction applying to statutory provisions.”). Nor can we presume that those who enacted the 15 amendment to the Code used language idly and with no intent that meaning should be given to the language used, which the Neighbors’ contention would essentially require us to do. See Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo. 2008). ¶32 We likewise are unpersuaded by the Neighbors’ argument that section 1.8(A)(1) of the Code required the governmental bodies below to impose the more restrictive use on the subject property, which here would have been an Outdoor Commercial Recreation or Entertainment Establishment classification. ¶33 Section 1.8(A)(1) provides: When the provisions of this Code are inconsistent with one another, or when the provisions of this Code conflict with provisions found in other ordinances, codes or regulations adopted by the Town of Estes Park or Larimer County, the more restrictive provision shall govern unless the terms of the provisions specify otherwise. ¶34 Here, although the definitions of a Park and Recreation Facility and of an Outdoor Commercial Recreation or Entertainment Establishment arguably overlap, we perceive nothing in those provisions that are inconsistent with one another. Nor do we see any conflict between those provisions and any provisions found in other ordinances, codes, or regulations adopted by Estes Park or Larimer County. As a result, section 1.8(A)(I) does not apply in this case. 16 ¶35 For all of these reasons, we perceive no abuse of discretion by the BOCC in finding that the subject property should be classified as a Park and Recreation Facility.",analysis
+314,901901,1,1,"[¶ 2.] McBride engaged in a pattern of domestic violence against his girlfriend. This culminated in a vicious beating and stabbing that left her seriously injured. McBride was indicted for aggravated assault with a dangerous weapon, aggravated assault-physical menace, three counts of simple assault, grand theft, stalking and a part II information was also filed. Pursuant to a plea agreement, McBride entered a guilty plea to aggravated assault with a dangerous weapon. The plea agreement was open and McBride was aware his sentence could be up to a maximum of fifteen years in the penitentiary. McBride expressed concerns to his counsel about having to serve fifteen years in the penitentiary. After discussing the plea agreement and the exposure he faced for the charges, he agreed to accept the plea agreement. Counsel also discussed the possibility of a suspended sentence and although she indicated it was unlikely she argued for it at sentencing. The State advocated for the maximum term of imprisonment under the plea agreement and the circuit court sentenced McBride to fifteen years in the penitentiary. The sentencing judge did not inform McBride of his right to appeal. [1] [¶ 3.] Immediately after sentencing, McBride met with his attorney in the hallway outside the courtroom. Counsel testified that she briefly discussed the right to appeal with McBride and her notes reflected that she advised him of this right and that there were no issues for appeal. Counsel also testified that she and McBride were both emotional following the sentencing. She did not inform McBride he could challenge the sentence imposed. Counsel also never asked McBride if he wished to appeal. McBride testified that he had no recollection of any discussion concerning a right to appeal and it was his understanding that he could not appeal following a guilty plea. Both agree that the conversation following sentencing focused on seeking a reduction of sentence through a subsequent motion. The entire extent of this conversation was less than ten minutes. Thereafter, McBride sent a series of letters to counsel inquiring about having his sentence modified. Although counsel sent McBride a copy of the written judgment there were no further discussions concerning his right to appeal until thirteen months later when McBride asked counsel what he needed to do to file an appeal. This was after the motion to modify the sentence was denied. [¶ 4.] McBride filed a habeas corpus action contending he received ineffective assistance of counsel based on counsel's failure to adequately consult with him concerning his right to a direct appeal from the sentence imposed. McBride claims he would have appealed if he had been adequately advised of that right. The habeas court found that counsel did not adequately consult with McBride concerning the appeal. That finding is not challenged on appeal. Although the habeas court found that McBride admits he never told [counsel] he wished to appeal, the record demonstrates that counsel informed McBride he did not have any issues for appeal and counsel never asked him if he wished to appeal. McBride indicated he was not aware he had a right to appeal following his guilty plea and he provided no specific instructions to counsel concerning an appeal. [¶ 5.] The habeas court found McBride had not identified an appealable issue and that counsel was not constitutionally required to consult because [counsel] believed there were no nonfrivolous grounds for appeal. Therefore, under the circumstances and in the absence of a specific request to appeal, the habeas court determined McBride did not receive ineffective assistance of counsel. The habeas court denied relief and also a certificate of probable cause to appeal this issue. Because this Court has not previously addressed counsel's duty to consult with a client concerning the right to appeal as articulated by the United States Supreme Court in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), this Court issued a certificate of probable cause allowing appeal in this matter.",facts
+315,2498924,1,2,"¶ 10 Where the WSP has a statutory duty to file, tabulate, and analyze accident reports under RCW 46.52.060, does 23 U.S.C. § 409 protect the WSP against unconditional disclosure of those reports under the PRA because the data is also collected or compiled by the DOT pursuant to the federal hazard elimination program, 23 U.S.C. § 152?",issues
+316,2379044,1,1,"Mr. Buchanan and Mr. Tobar were friends who had gotten into an argument during an afternoon outing with other persons. After Mr. Buchanan returned to his home, Mr. Tobar knocked on Buchanan's door and was allowed to enter. Despite Tobar's stated intention to apologize, the argument flared again. Lilly Hodges, Mr. Buchanan's fiance who lived with him and their two children, witnessed the shooting. She testified that she had asked Tobar to leave but he refused. At some point she called Mr. Tobar's wife a name, and he then grabbed her and threatened to hit her. Ms. Hodges testified further that Buchanan had gone to the back room of their mobile home, gotten a rifle, and then returned to the front. Ms. Hodges had by then broken free. Buchanan again asked Tobar to leave, but Tobar advanced toward Buchanan who then shot Tobar. Mr. Buchanan did not deny the shooting. His testimony was similar to that of Ms. Hodges. She testified she heard two or three shots. Mr. Buchanan testified he blacked out after the first shot. He said he had no intention of killing Tobar but shot at him because Tobar was advancing on him and he felt fear for himself, Ms. Hodges, and the children. The weapon used was a .22 caliber semiautomatic rifle with a sawed off stock. Ronald Andrejack, a firearms and tool-mark examiner of the State Crime Laboratory, testified that it was necessary to pull the trigger of that rifle for each shot fired. Dr. David De Jong, Associate Medical Examiner with the Crime Laboratory testified that Mr. Tabor suffered five bullet wounds, two entered his front and three entered his back. Mr. Buchanan argues that the only evidence about premeditation and deliberation came from the only two witnesses to the shooting, Ms. Hodges and himself, and that no such intent could be found as a result of their testimony. Be that as it may, we hold the jury's decision is supported by the evidence of the nature of the weapon and the manner of its use. In determining whether there was premeditation and deliberation, the jury may consider the nature of the weapon used, the extent and location of the wounds inflicted, and Buchanan's actions. Tillman v. State, 300 Ark. 132, 777 S.W.2d 217 (1989); Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). Given the five bullet wounds, their location in Mr. Tobar's body, and the nature of the weapon used, we cannot say there was no question of fact for the jury to decide, and we have been given no convincing argument or citation of authority which might cause us to overturn its decision with respect to Mr. Buchanan's intent when he fired the fatal shots.",sufficiency of the evidence
+317,6499237,1,7,"¶71 The petitioners bring us two nondelegation claims supported by a proposal for how we should analyze nondelegation questions going forward. I do not endorse a broader nondelegation framework at this time because doing so is unnecessary to resolve the claims before us. Based on the historical record, I conclude the legislature did not impermissibly delegate legislative power to local health officers by authorizing them to issue orders under Wis. Stat. § 252.03. I also conclude the petitioners' claim that Dane County Ordinance § 46.40(2) violates local nondelegation principles fails because the ordinance does not delegate, or redelegate as the dissent frames it, legislative power at all. ¶72 I close with a word to litigants. Regardless of judicial philosophy, every member of this court is interested in what the text says and what the historical evidence reveals about the text.53 Therefore, parties who come to us advancing legal theories grounded in the Wisconsin Constitution should make every effort to present arguments focused on the original understanding of our constitution.54 While such briefing is 53 See majority/lead op., ¶¶38-39 (relying on historical evidence from Wisconsin's founding era). 54 See Halverson, 395 Wis. 2d 385, ¶¶22, 24. 17 No. 2021AP1343 & 2021AP1382.bh always welcome, arguments of this type are especially helpful when analyzing novel claims or considering challenges to our precedent. This is not a new invitation; it is made in earnest.55 55 James, 397 Wis. 2d 517, ¶62 (Hagedorn, J., concurring). 18 Nos. 2021AP1343 & 2021AP1382.rgb ¶73 REBECCA GRASSL BRADLEY, J. (dissenting). 'Law is the ultimate science,' Paul quoted. Thus it reads above the Emperor's door. I propose to show him law. Frank Herbert, Dune 284 (Penguin Books 2016) (1965). ¶74 Our republic and our state were founded on the fundamental idea that the people possess inherent rights, they form governments for the primary purpose of protecting those rights, and governments may exercise only those powers the people consent to give them.1 Under our state constitution, the people of Wisconsin authorized particular elected officials to exercise power over them. But the people never consented to that power being given away. ¶75 This case involves the power to make the rules by which the people will be bound, a power the people have entrusted to state and local legislatures alone. Not surprisingly, when the people consented to submitting to the rules that will govern society, they carefully confined the exercise of such awesome power to those whom they elect. Should others attempt to rule over the people, their actions are beyond the law, even if they bear the imprimatur of a legislative body. Legislators have no power to anoint legislators; only the people do. 1Echoing the Declaration of Independence, the people of Wisconsin enshrined these first principles in the first section of the first article of our state constitution: All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed. Wis. Const. art. I, § 1. 1 Nos. 2021AP1343 & 2021AP1382.rgb The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be governed by laws made by such men, and in such forms, no body else can say other men shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those whom they have chosen, and authorized to make laws for them. The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands. . . . . The legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have. John Locke, Second Treatise of Government §§ 141–42 (C.B. McPherson ed. 1980) (1690). ¶76 The majority misunderstands first principles and ignores the plaintiffs' principal and most persuasive argument. In Article IV, Section 22 of the Wisconsin Constitution, a section the majority/lead opinion2 and the concurrence both cite but once in passing references,3 the people of Wisconsin Wis. 2 Sup. Ct. IOP III.G.5 (If . . . the opinion originally circulated as the majority opinion does not garner the vote of a majority of the court, it shall be referred to in separate writings as the 'lead opinion[.]'). The plaintiffs' main brief cites Article IV, Section 22 of 3 the Wisconsin Constitution so many times, the table of authorities does not provide specific page numbers for each instance in which it is cited, instead using the phrase, passim. The majority/lead opinion instead focuses on Article IV, Section 1 (which vests all legislative power in the senate and assembly). The plaintiffs' main brief cites that clause on a single page. Justice Brian Hagedorn complains the petitioners do not analyze the original meaning of this provision but he 2 Nos. 2021AP1343 & 2021AP1382.rgb authorized the state legislature to delegate certain powers to county boards. That section states, [t]he legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe. Wis. Const. art. IV, § 22. The original public meaning of this text, as confirmed by the historical record, reflects the founders' recognition of the non-delegation principle, on which the constitutional framers' vesting of separate powers in each branch was based. Because the people decide who may create the laws that will bind them, those to whom power has been delegated may not give it away. The people adopted an exception permitting the legislature to delegate lawmaking power to county boards (the members of which are elected), but those local governmental entities may not give the power to anyone else. See infra Part II. ¶77 This court has long held the Wisconsin Constitution does not permit county boards of supervisors to subdelegate lawmaking power. Although Article IV, Section 22 authorizes the initial delegation from the legislature to the county boards, the constitution does not authorize any subdelegation. Accordingly, this court has declared unconstitutional a statute enacted by the legislature authorizing a county board to delegate to the electors of the county a power by the Constitution expressly delegated to the county board itself. fails to undertake the analysis at all. Discerning original meaning requires hard work but is an essential element of our",conclusion
+318,4544371,1,4,"[3-5] A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. 25 When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 26 Whether an agency decision conforms to the law is by definition a question of law. 27 [6] The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 28",standard of review
+319,6335687,1,5,"After a careful review of the record, we conclude that the trial court did not abuse its discretion by granting the plaintiffs’ joint motion for additurs. Because the defendants declined to accept the trial court’s additur award; see footnote 7 of this opinion; a new trial is required.21 The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new trial as to causation and damages only. In this opinion McDONALD, D’AURIA and KAHN, Js.,",conclusion
+320,4518161,1,1,"This is an appeal from a judgment of the district court for Douglas County, confirming an arbitration award of $2,997,031 under the Federal Arbitration Act (FAA)1 and awarding attorney fees as a sanction under Neb. Rev. Stat. § 25-824 (Reissue 2016).",introduction
+321,2328476,1,2,"The trial court ruled that it had jurisdiction over AKA, but dismissed as to the individual appellees and the Foundation for lack of jurisdiction. The trial court's dismissal for lack of personal jurisdiction is reviewed de novo, but plaintiffs bear the burden of establishing personal jurisdiction over each defendant. See Holder v. Haarmann & Reimer Corp., 779 A.2d 264, 269 (D.C.2001). None of the individual appellees is a resident of the District of Columbia and the Foundation is a foreign corporation. Jurisdiction over them depends upon the application of the District's Long Arm Statute and, more particularly, the provision that the District's courts may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's [] transacting any business in the District of Columbia. D.C.Code § 13-423(a) (2001). When jurisdiction rests on this provision, only a claim for relief arising from acts enumerated in this section may be asserted against [the defendant]. D.C.Code § 13-423(b) (2001). As we have repeatedly reaffirmed and need not rehearse at length here, the breadth of the transacting business provision is coextensive with the due process clause of the Fifth Amendment. In other words, the defendant must have minimum contacts with the forum so that exercising personal jurisdiction over it would not offend traditional notions of fair play and substantial justice. Hence the defendant must have purposefully directed [its] activities at residents of the forum. This means that the non-resident defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there. Gonzalez v. Internacional de Elevadores, S.A., 891 A.2d 227, 234 (D.C.2006) (alterations in original) (quotation marks and citations omitted). [U]nder the due process clause, the minimum contacts principle requires us to examine the quality and nature of the nonresident defendant's contacts with the District and whether those contacts are voluntary and deliberate or only random, fortuitous, tenuous and accidental. Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 329 (D.C.2000) (en banc). The allegations in the case before us focus in large part on wrongdoing with respect to the 2008 meeting of the Boule, that is, the failure to obtain the alleged requisite Boule approval for the challenged expenditures and the suppression of any discussion of these expenditures at the Boule meetings. The Boule sessions were held in the District of Columbia over the course of a full week. They dealt with the management of a District of Columbia corporation, the entity to which the Boule actions were directed. It appears that all of the named appellees voluntarily participated in the Boule sessions or the actions relating thereto. In these circumstances, the participants could reasonably anticipate being required to defend their actions in the courts of the District without offending traditional notions of fair play and substantial justice. And [o]nce . . . the claim is related to acts in the District, § 13-423 does not require that the scope of the claim be limited to activity within this jurisdiction. Shoppers Food Warehouse, supra, 746 A.2d at 326 (internal quotation marks omitted) (quoting Cohane v. Arpeja-California, Inc., 385 A.2d 153, 158-59 (D.C.1978)). The trial court erred in dismissing the action as to the individual appellees for want of jurisdiction. [3] Jurisdiction over the Foundation, however, is another matter. No acts of wrongdoing in the District are alleged against the Foundation. Rather, the appellants rely on the assertion of general jurisdiction under D.C.Code § 13-334(a), relating to corporations doing business in the District. The appellants' scanty assertions that the Foundation maintained a website, which was necessarily accessible to District residents, and received applications from and made grants to District residents, were hardly sufficient to establish general jurisdiction and the trial court correctly so ruled. Nor did the trial court abuse its discretion in denying the discovery motion as it related to the Foundation. See FC Inv. Grp. LC v. IFX Mkts., Ltd., 381 U.S.App.D.C. 383, 388-90, 529 F.3d 1087, 1093-94 (2008) (In order to engage in jurisdictional discovery, the plaintiff must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant. Such a request for jurisdictional discovery cannot be based on mere conjecture or speculation. (quotation marks and citation omitted)).",jurisdiction
+322,2632589,1,1,"¶1 The issue presented in this appeal is whether the City of Monticello (the City) adequately notified its residents in 1979 of a repurchase option retained by the City as part of an agreement covering the sale of the municipality's electrical power distribution system. The district court concluded that the notice provided by the City in 1979 was adequate and that, as a result, voters could have initiated a referendum on the decision to retain the option at that time. We affirm.",introduction
+323,4529505,1,1,"On June 9, 2014, Allan H. Abihai (“Abihai”), who was serving a life term of imprisonment for multiple felonies committed in 1984, left the Laumaka Work Furlough Center (“Laumaka”) in Honolulu and did not return. On June 29, 2014, Abihai was arrested at a former cellmate’s apartment in  FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER  Honolulu. He was later charged with escape in the second degree. In his jury trial on the escape charge, Abihai raised a choice of evils defense, contending he left Laumaka because he was threatened he would be hurt if he testified in an upcoming federal criminal trial involving a prison gang. The jury was instructed on the choice of evils defense, then convicted Abihai of escape in the second degree. The Circuit Court of the First Circuit (“circuit court”) imposed a five-year prison term for the escape conviction, to run concurrent to his life sentence for the 1984 felonies, and denied him credit for time served. Abihai raised two points of error on appeal to the ICA: (1) that trial counsel was ineffective for substantially impairing his choice of evils defense by failing to elicit certain testimony from his witnesses; and (2) that the circuit court erred when it denied him credit for time served on the sentence imposed for the escape conviction. The ICA affirmed the circuit court’s judgment of conviction and sentence. Abihai raises the same issues on certiorari. For the reasons below, we resolve Abihai’s points of error as follows: (1) Because the record on appeal is insufficient to determine whether there has been ineffective assistance of counsel, we affirm Abihai’s conviction without prejudice to a subsequent Hawaiʻi Rules of Penal Procedure (“HRPP”) Rule 40 petition on the 2  FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER  ineffective assistance of counsel claim; and (2) the ICA erred in affirming the circuit court’s decision to deny Abihai credit for time served on his escape conviction. The circuit court’s June 14, 2017 judgment of conviction and sentence is therefore affirmed, but the ICA’s September 6, 2018 judgment on appeal is vacated, and this matter is remanded to the circuit court for calculation of Abihai’s presentence detention credit consistent with this opinion.",introduction
+324,1659442,1,5,"In Heins, this court abrogated the common-law distinction between business invitees and licensees and the duty of care owed them. Prior to Heins, landowners owed invitees a duty of reasonable care to keep the premises safe for the use of the invitee, see Neff v. Clark, 219 Neb. 521, 363 N.W.2d 925 (1985), and a greater duty was owed to an invitee than was owed to a licensee. A licensee was defined as a person who was privileged to enter or remain upon the premises of another by virtue of the possessor's express or implied consent but who was not a business visitor. Heins v. Webster County, supra . The duty owed by an owner or occupant of a premises to a licensee was to refrain from injuring the licensee by willful or wanton negligence or designed injury, or to warn him, as a licensee, of a hidden danger or peril known to the owner or occupant but unknown to or unobservable by the licensee, who was required to exercise ordinary care. Id. In Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996), we held that a landowner must exercise reasonable care toward all lawful visitors, and we set forth several factors to be considered in evaluating whether reasonable care has been exercised. Among the factors to be considered are (1) the foreseeability or possibility of harm; (2) the purpose for which the entrant entered the premises; (3) the time, manner, and circumstances under which the entrant entered the premises; (4) the use to which the premises are put or are expected to be put; (5) the reasonableness of the inspection, repair, or warning; (6) the opportunity and ease of repair or correction or giving of the warning; and (7) the burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection. Id. We retained a separate classification for trespassers because we concluded that one did not owe a duty to exercise reasonable care to those not lawfully on one's property. We expressly stated that our holding did not mean that owners and occupiers of land were now insurers of their premises. Id. Heins did not abrogate the elements necessary to establish liability on the part of a possessor of land for injury caused to a lawful visitor by a condition on the land. A possessor of land is subject to liability for injury caused to a lawful visitor by a condition on the land if (1) the possessor defendant either created the condition, knew of the condition, or by the exercise of reasonable care would have discovered the condition; (2) the defendant should have realized the condition involved an unreasonable risk of harm to the lawful visitor; (3) the defendant should have expected that a lawful visitor such as the plaintiff either (a) would not discover or realize the danger or (b) would fail to protect himself or herself against the danger; (4) the defendant failed to use reasonable care to protect the lawful visitor against the danger; and (5) the condition was a proximate cause of damage to the plaintiff. See, Derr v. Columbus Convention Ctr., 258 Neb. 537, 604 N.W.2d 414 (2000); Chelberg v. Guitars & Cadillacs, 253 Neb. 830, 572 N.W.2d 356 (1998). The several factors described in Heins regarding reasonable care are to be considered under subsection (4) above. The Court of Appeals erred in its analysis of Heins. In a premises liability case involving a slip-and-fall accident, it is incumbent upon the plaintiff to show that the accident was a result of the defendant's negligence. The Court of Appeals found that Fleming had not established the standard of care used by similar facilities to inspect its floors and did not establish the meaning of the term regularly inspected. The court therefore concluded that Fleming did not present sufficient evidence to make a prima facie showing that it had exercised reasonable care, thereby requiring Herrera to rebut the evidence. A plaintiff in a premises liability case is required to adduce evidence showing that there was a negligent act on the part of the defendant and that such act was the cause of the plaintiff's injury. See King v. Crowell Memorial Home, 261 Neb. 177, 622 N.W.2d 588 (2001). An allegation of negligence is insufficient where the finder of fact must guess at the cause of the accident. Id. While circumstantial evidence may be used to prove causation, the evidence must be sufficient to fairly and reasonably justify the conclusion that the defendant's negligence was the proximate cause of the plaintiff's injury. Id. A person who alleges negligence on the part of another bears the burden to prove such negligence by direct or circumstantial evidence. See Bargmann v. Soll Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998). The mere fact that an injury or accident occurred does not raise a presumption of negligence. See, id.; Holden v. Urban, 224 Neb. 472, 398 N.W.2d 699 (1987). At the hearing on its motion for summary judgment, Fleming offered the deposition of Herrera. In her deposition, Herrera stated she did not know how long the water had been on the floor. Fleming's store director stated in his affidavit that no one had reported water on the restroom floor and that he did not know how long the water had been there. The store had a policy of keeping the floors clean, and the floors were regularly inspected for spills. From this evidence, no reasonable inference could be drawn as to how long the water had been on the floor. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. R.W. v. Schrein, 264 Neb. 818, 652 N.W.2d 574 (2002). A prima facie case for summary judgment is shown by producing enough evidence to demonstrate that the movant is entitled to a judgment in its favor if the evidence were uncontroverted at trial. At that point, the burden of producing evidence shifts to the party opposing the motion. Durkan v. Vaughan, 259 Neb. 288, 609 N.W.2d 358 (2000). In a premises liability case, the plaintiff must establish that the defendant created the condition, knew of the condition, or by the exercise of reasonable care should have discovered or known of the condition. Herrera did not allege that Fleming created this condition but that Fleming knew or should have known of the water on the restroom floor. As the party moving for summary judgment, Fleming established that no one knew how long the water had been on the floor. There was no evidence or reasonable inference that Fleming created the condition, knew of the condition, or should have known of the condition. If these facts remained uncontroverted, Fleming was entitled to a judgment as a matter of law. Therefore, the burden shifted to Herrera. The burden having been shifted to Herrera, she failed to produce any evidence from which a reasonable inference could be drawn that Fleming knew or by the exercise of reasonable care should have known of the water on the floor. Thus, the district court correctly determined that Fleming was entitled to judgment as a matter of law.",analysis
+325,2519474,1,3,"
+¶ 23 WSFB claims that taxes enacted in Parts I and II of ESHB 2314 increase general fund revenues in excess of the expenditure limit for fiscal year 2006. WSFB claims, therefore, that these taxes are ineffective without prior voter approval under former RCW 43.135.035(2)(a) of the TPA, which provides that taxes raising general fund revenues in excess of the state expenditure limit . . . shall not take effect until approved by a vote of the people. The State argues that the 2006 amendment raised the fiscal year 2006 expenditure limit by $250 million, thus increasing that limit beyond the additional revenues raised by ESHB 2314 and defeating WSFB's claim. Precise figures for the revenues generated by ESHB 2314 and the fiscal year 2006 expenditure limit are not critical to this case. It is undisputed that if the fiscal year 2006 expenditure limit was increased by $250 million, WSFB's claim that ESHB 2314 raised revenues in excess of that limit fails. ¶ 24 The trial court decided this case on summary judgment. We review rulings on summary judgment de novo. Berrocal v. Fernandez, 155 Wash.2d 585, 590, 121 P.3d 82 (2005). Only legal questions are before the court. We review questions of law de novo. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002).
+¶ 25 Our primary duty in interpreting any statute is to discern and implement the intent of the legislature. State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003). The legislature's intent in enacting the 2006 amendment is clear. The 2006 amendment revised former RCW 43.135.025(6), the provision that indicates how the state expenditure limit is calculated. The 2006 amendment's language provides, [i]n calculating the expenditure limit for fiscal year 2006, the calculation shall be the expenditure limit established by the state expenditure limit committee in November 2005 adjusted as provided by this chapter and adjusted to include [certain specified appropriations]. Former RCW 43.135.025(6) (emphasis added). This language expressly adopts as the expenditure limit for fiscal year 2006 the amount calculated by the ELC at its November 2005 meeting, subject to adjustment as provided in chapter 43.135 RCW. The limit calculated by the ELC at its November 2005 meeting included the $250 million increase. The State argues that [t]his direct and explicit amendment to the statute defines the general fund spending limit for fiscal year 2006 and thereby defeats WSFB's claim. State's Opening Br. at 25. We agree. ¶ 26 We find no barrier to the legislature enacting the 2006 amendment and revising former RCW 43.135.025(6) as it did. [T]he legislature's power to enact a statute is unrestrained except where, either expressly or by fair inference, it is prohibited by the state and federal constitutions. State ex rel. Citizens v. Murphy, 151 Wash.2d 226, 248, 88 P.3d 375 (2004); accord State ex rel. Heavey v. Murphy, 138 Wash.2d 800, 809, 982 P.2d 611 (1999); State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wash.2d 175, 180, 492 P.2d 1012 (1972); State v. Fair, 35 Wash. 127, 133, 76 P. 731 (1904). `Insofar as legislative power is not limited by the constitution it is unrestrained.' Cedar County Comm. v. Munro, 134 Wash.2d 377, 386, 950 P.2d 446 (1998) (quoting Moses Lake Sch. Dist. No. 161 v. Big Bend Cmty. Coll., 81 Wash.2d 551, 555, 503 P.2d 86 (1972)). ¶ 27 Each duly elected legislature is fully vested with this plenary legislative power. `A legislative assembly, when established, becomes vested with all the powers and privileges which are necessary and incidental to a free and unobstructed exercise of its appropriate functions.' State ex rel. Robinson v. Fluent, 30 Wash.2d 194, 203-04, 191 P.2d 241 (1948) (quoting Ex parte McCarthy, 29 Cal. 395 (1866)). `Plenary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception.' Fair, 35 Wash. at 132-33, 76 P. 731 (quoting People ex rel. Wood v. Draper, 15 N.Y. 532, 543 (1857)). ¶ 28 Implicit in the plenary power of each legislature is the principle that one legislature cannot enact a statute that prevents a future legislature from exercising its law-making power. As this court has recognized, there is a general rule that one legislature cannot abridge the power of a succeeding legislature, and succeeding legislatures may repeal or modify acts of a former legislature. [23] Gruen v. State Tax Comm'n, 35 Wash.2d 1, 54, 211 P.2d 651 (1949), overruled on other grounds by State ex rel. Wash. State Fin. Comm. v. Martin, 62 Wash.2d 645, 384 P.2d 833 (1963). [A]bsent contractual protection or some other form of constitutional restriction, nothing prevents one legislature from amending the work of a previous legislature. Kristen L. Fraser, Method, Procedure, Means, and Manner: Washington's Law of Law-Making, 39 GONZ. L.REV. 447, 478 (2003-2004) (footnotes omitted). ¶ 29 The state expenditure limit is a creature of statute, as are the laws that govern its calculation. The legislature is free to amend the expenditure limit and the process by which it is calculated. The legislature exercised this prerogative when it enacted the 2006 amendment. When the legislature enacts laws, it speaks as the chosen representative of the people. Clark v. Dwyer, 56 Wash.2d 425, 353 P.2d 941 (1960). It is neither our prerogative nor our function to substitute our judgment for the duly elected legislature's determination that the 2006 amendment was in the best interests of Washington State. Therefore, we are compelled to give the 2006 amendment its intended effect. ¶ 30 It is immaterial that former RCW 43.135.025(6), the target of the 2006 amendment, has its origins in an initiative. [A]n initiative measure . . . is as much a legislative act as is [a statute]. Love v. King County, 181 Wash. 462, 469, 44 P.2d 175 (1935). When the people exercise their initiative power, they exercise the same power of sovereignty as the Legislature does when enacting a statute. Amalgamated Transit Union Local 587 v. State, 142 Wash.2d 183, 204, 11 P.3d 762, 27 P.3d 608 (2000). The people cannot, by initiative, prevent future legislatures from exercising their law-making power. [24] A law passed by initiative is as subject to the legislative power of future legislatures as is any other statute. Thus, the fact that former RCW 43.135.025(6) originated as an initiative does not impede the legislature's ability to amend that statute. ¶ 31 Nor is the 2006 amendment invalid because it operates retroactively. Unquestionably, the Legislature has the power to enact a retrospective[ [25] ] statute, unless the statute contravenes some constitutional inhibition. Lawson v. State, 107 Wash.2d 444, 454, 730 P.2d 1308 (1986). Barring a constitutional limitation, an amendment may operate retroactively if `the legislature so intended' or `it is curative.' McGee Guest Home, Inc. v. Dep't of Soc. & Health Servs., 142 Wash.2d 316, 324-25, 12 P.3d 144 (2000) (quoting State v. Cruz, 139 Wash.2d 186, 191, 985 P.2d 384 (1999), superseded by statute on other grounds as stated in State v. Pillatos, 159 Wash.2d 459, 150 P.3d 1130 (2007)). ¶ 32 It is undisputed that the legislature intended the 2006 amendment to operate retroactively. This intent is implicit in the language and timing of the 2006 amendment. The 2006 amendment directs the process for calculating the expenditure limit for fiscal year 2006 through an enactment that took effect in March 2006, nine months after the start of that fiscal year on July 1, 2005. ¶ 33 The 2006 amendment is also curative in nature. An amendment that `clarifies or technically corrects an ambiguous statute' is curative. McGee Guest Home, 142 Wash.2d at 325, 12 P.3d 144 (quoting In re F.D. Processing, Inc., 119 Wash.2d 452, 461, 832 P.2d 1303 (1992)). The Legislature's intent to clarify a statute is manifested by its adoption of the amendment `soon after controversies arose as to the interpretation of the original act.' McGee Guest Home, 142 Wash.2d at 325, 12 P.3d 144 (internal quotation marks omitted) (quoting Johnson v. Cont'l W., Inc., 99 Wash.2d 555, 559, 663 P.2d 482 (1983)). The legislature enacted the 2006 amendment within months of WSFB initiating this action, and the 2006 amendment clarifies the meaning of former RCW 43.135.025(6) with respect to the fiscal year 2006 expenditure limit, the subject of that action. ¶ 34 Applying the 2006 amendment retroactively is not prescribed by separation of powers principles. [T]he legislature is precluded by the constitutional doctrine of separation of powers from making judicial determinations. City of Tacoma v. O'Brien, 85 Wash.2d 266, 271, 534 P.2d 114 (1975). [S]eparation of powers problems are raised when a subsequent legislative enactment is viewed as a clarification and applied retroactively, if the subsequent enactment contravenes the construction placed on the original statute by this court. Overton v. Econ. Assistance Auth., 96 Wash.2d 552, 558, 637 P.2d 652 (1981) (citing Johnson v. Morris, 87 Wash.2d 922, 557 P.2d 1299 (1976)). The 2006 amendment does not contradict a construction placed on former RCW 43.135.025 by any court. When the legislature enacted the 2006 amendment, not even the trial court had announced its construction of former RCW 43.135.025. ¶ 35 Nor is the legislature prohibited from pass[ing] a law that directly impacts a case pending in Washington courts. Port of Seattle v. Pollution Control Hearings Bd., 151 Wash.2d 568, 625, 90 P.3d 659 (2004). Litigation often brings to light latent ambiguities or unanswered questions that might not otherwise be apparent. United States v. Morton, 467 U.S. 822, 835 n. 21, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984). The legislature violates separation of powers principles by prescribing new rules to be applied to pending litigation only when doing so infringes on a judicial function by `imped[ing] upon the court's right and duty to apply new law to the facts of this case,' `dictat[ing] how the court should decide a factual issue,' or `affect[ing] a final judgment.' Pollution Control Hearings Bd., 151 Wash.2d at 626, 90 P.3d 659 (quoting Haberman v. Wash. Pub. Power Supply Sys., 109 Wash.2d 107, 143-44, 744 P.2d 1032, 750 P.2d 254 (1987)). A statutory amendment that is a `facially neutral law for the court to apply to the facts before it,' [does] not violate the separation of powers. Id. (quoting Haberman, 109 Wash.2d at 144, 750 P.2d 254). ¶ 36 WSFB's contention that the retroactivity of the 2006 amendment violates due process is without merit. The legislature may not give an amendment retroactive effect where the effect would be to interfere with vested rights. Lawson, 107 Wash.2d at 454-55, 730 P.2d 1308. But WSFB provides neither argument nor authority to support its novel theory that the citizens of Washington have a vested right to vote on taxes that are expected to raise general fund revenues in excess of the expenditure limit. This court has stated: [a] vested right, entitled to protection from legislation, must be something more than a mere expectation based upon an anticipated continuance of the existing law; it must have become a title, legal or equitable, to the present or future enjoyment of property, a demand, or a legal exemption from a demand by another.  Id. at 455, 730 P.2d 1308 (alteration in original) (internal quotation marks omitted) (quoting In re Marriage of MacDonald, 104 Wash.2d 745, 750, 709 P.2d 1196 (1985)). No one has a vested right in any general rule of law or policy of legislation which gives an entitlement to insist that it remain unchanged for one's own benefit. Johnson, 99 Wash.2d at 563, 663 P.2d 482. Washington voters' statutory right to approve taxes that raise revenues in excess of the state expenditure limit is a mere expectation—it is not a vested right entitled to due process protections from subsequently enacted legislation. ¶ 37 WSFB also argues that the 2006 amendment is inoperative because it violates article II, section 37 of the Washington Constitution. Article II, section 37 requires legislation which revises or amends other acts to set them forth at full length; legislation which fails to do this will be held invalid. [26] Wash. Ass'n of Neighborhood Stores v. State, 149 Wash.2d 359, 373, 70 P.3d 920 (2003) (emphasis added). WSFB contends that the 2006 amendment violates this requirement because it does not amend former RCW 43.135.025(5), which establishes the ELC and grants it authority to determine the state expenditure limit. But the 2006 amendment sets forth the statute it amends, former RCW 43.135.025, in full, including section 5. See LAWS OF 2006, ch. 56, § 7. The constitutional requirements of article II, section 37 are satisfied. ¶ 38 Also citing former RCW 43.135.025(5), WSFB argues that the 2006 amendment is invalid in light of the ELC's exclusive power to determine the state expenditure limit. That is a very strong reading of former RCW 43.135.025(5), which does not restrict the legislature's own power to make decisions regarding the expenditure limit. [27] However, assuming without deciding that WSFB's proposed construction is correct, the 2006 amendment nonetheless remains valid. The 2006 amendment does not contravene the ELC's authority—to the contrary, it adopts as the expenditure limit for fiscal year 2006 the limit established by the ELC at its November 2005 meeting. ¶ 39 Finally, WSFB argues that in order for the voter approval requirement of former RCW 43.135.035(2)(a) to have any meaning, the challenged taxes must be measured against an estimated limit projected by the ELC in November 2004, because only that calculation was available prior to the enactment of the taxes. Giving effect to the 2006 amendment, WSFB further contends, will thwart the TPA's purpose to provide for voter approval of tax increases. This argument takes us full circle to the foundational principles on which this analysis is grounded. The legislature has plenary power to enact, amend, or repeal a statute, except as restrained by the state and federal constitutions. See, e.g., Murphy, 151 Wash.2d at 248, 88 P.3d 375. The state expenditure limit and the TPA are creatures of statute, which the legislature is free to amend. When it enacted the 2006 amendment, the legislature, speaking as the elected representative of the people, exercised this prerogative. Because it is not our function to substitute our judgment for that of the legislature in enacting the 2006 amendment, we give the 2006 amendment its intended effect. ¶ 40 `Principles of judicial restraint dictate that if resolution of an issue effectively disposes of a case, we should resolve the case on that basis without reaching any other issues that might be presented.' Hayden v. Mut. of Enumclaw Ins. Co., 141 Wash.2d 55, 68, 1 P.3d 1167 (2000) (internal quotation marks omitted) (quoting State v. Peterson, 133 Wash.2d 885, 894, 948 P.2d 381 (1997) (Talmadge, J., concurring)). We therefore decline to reach the other issues raised in this case, including (1) the validity of other legislative actions affecting the fiscal year 2006 expenditure limit and that of the ELC's actions at its November 2005 meeting, (2) the constitutionality of the former RCW 43.135.035(2)(a) voter approval requirement, and (3) the legislative and executive privileges issue.",analysis
+326,4522345,1,1,"This case requires us to interpret Iowa Code section 657.11(5), a litigation-cost-shifting provision relating to animal feeding operations: If a court determines that a claim is frivolous, a person who brings the claim as part of a losing cause of action against a person who may raise a defense under this section shall be liable to the person against whom the action was brought for all costs and expenses incurred in the defense of the action. Iowa Code § 657.11(5) (2013). A group of property owners filed a petition alleging that certain confined animal feeding operations (CAFOs) operated and supported by the defendants constituted a nuisance. Because the plaintiffs had failed to exhaust farm mediation, they had to dismiss their initial lawsuit. The plaintiffs refiled. Later, two of the plaintiffs voluntarily dismissed their claims a second time, resulting in an adjudication against them on the merits. See Iowa R. Civ. P. 1.943. The defendants sued by these two plaintiffs moved for costs and expenses pursuant to Iowa Code section 657.11(5), and the district court granted their motions. The two plaintiffs now appeal. They argue: (1) two voluntary dismissals do not mean they had “a losing cause of action,” (2) their claims were not frivolous, and (3) the district court improperly assessed certain costs and expenses. On our review, we hold that these plaintiffs had a losing cause of action, that the district court did not abuse its discretion in finding their claims frivolous, and that the district court’s apportionment of costs and expenses was appropriate. Accordingly, we affirm the judgment of the district court. 3",introduction
+327,1915313,1,3,"Whether a dedication of land for private use failed under the law governing the creation of plats is a question of law. We review de novo questions of law. Cardinal Mooney High School v. Michigan High School Athletic Ass'n, 437 Mich. 75, 80, 467 N.W.2d 21 (1991).",standard of review
+328,3166164,2,1,"
+Wells Fargo argues that even though the district court did not consider the issue, this Court may affirm the district court’s rulings on the ground that Houpts lack standing as the real party of interest. Houpts contend that since this argument is raised for the first time on appeal it should not be considered. While it is true that “[g]enerally, issues raised for the first time on appeal will not be considered,” Arambarri v. Armstrong, 152 Idaho 734, 738, 274 P.3d 1249, 1253 (2012), issues of standing are jurisdictional, and “they can be raised at any time, including for the first time on appeal.” Id. Indeed, “this Court has a duty to raise the issue of standing sua sponte.” Campbell v. Parkway Surgery Center, LLC, 158 Idaho 957, 962, 354 P.3d 1172, 1177 (2015). Thus, we will consider the merits of Wells Fargo’s contention that Houpts lack standing as the real party in interest. Idaho’s real party in interest rule is found in the Idaho Rules of Civil Procedure and states in relevant part: Every action shall be prosecuted in the name of the real party in interest. . . . No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. I.R.C.P. 17(a). The purpose of this rule is to “prevent forfeiture when determination of the proper party is difficult or when an understandable mistake has been made in selecting the party plaintiff.” Conda Partnership, Inc. v. M.D. Constr. Co., 115 Idaho 902, 904, 771 P.2d 920, 922 (Ct. App. 5 1989). Consequently, when interpreting this rule we have stated that “[l]iberal construction should be given to this rule and courts should ‘further the policy favoring the just resolution of actions— providing litigants their day in court.’ ” Hayward v. Valley Vista Care Corp., 136 Idaho 342, 348, 33 P.3d 816, 822 (2001) (quoting Conda, 115 Idaho at 904, 771 P.2d at 922). Wells Fargo contends that once Houpts filed their bankruptcy petition in 2011, any claim Houpts had automatically became an asset of the bankruptcy estate that only the trustee could assert. In support of their argument Wells Fargo relies on McCallister v. Dixon, 154 Idaho 891, 303 P.3d 578 (2013), and Mowrey v. Chevron Pipe Line Co., 155 Idaho 629, 315 P.3d 817 (2013). In McCallister and Mowrey, the plaintiffs did not list their claims for damages in their bankruptcy schedules and then later, after their bankruptcy proceedings closed, attempted to bring suit. This Court ruled that the plaintiffs in both cases were judicially estopped from bringing their undisclosed claims and that the bankruptcy trustees, and not the plaintiffs, were the real parties in interest. We noted in McCallister that “once [the plaintiff] filed for bankruptcy, the potential [] claim he had against Respondents was no longer [the plaintiff’s] to assert. It became an asset of the bankruptcy estate for the bankruptcy trustee to assert.” 154 Idaho at 898, 303 P.3d at 585. In Mowrey, we stated that when a plaintiff has knowledge of a claim during the pendency of his bankruptcy the claim becomes “an asset of the bankruptcy estate, and [] a claim for the bankruptcy trustee alone to assert.” 155 Idaho at 635, 315 P.3d at 823. Here, like the plaintiffs in McCallister and Mowrey, Houpts had knowledge of their claims against Wells Fargo during the pendency of their bankruptcy.4 Thus, Houpts were not the real party in interest at the time they filed their Complaint. But, because Wells Fargo has not objected to Houpts’ standing as the real party in interest until this time, under I.R.C.P. 17(a), the action cannot be dismissed until a reasonable time has been allowed for the Houpts to cure the defect through “ratification . . . by, or joinder or substitution of,” the real party in interest. Accordingly, under I.R.C.P. 17(a), Houpts must be allowed the opportunity to cure any defect in the real party of interest. Yet, here, unlike in McCallister and Mowrey, the bankruptcy trustee has, since the original filing of the Complaint, specifically abandoned his interest in the property. Consequently, Houpts, unlike the plaintiffs in McCallister and Mowrey where the bankruptcy estates did not abandon their 4 Wells Fargo initiated the nonjudicial foreclosure proceedings on October 18, 2010. Houpts filed their bankruptcy schedules and amended schedules on February 16, 2011, and April 1, 2011, respectively. Houpts filed their Complaint in this action on June 22, 2012. The bankruptcy case closed on September 25, 2013. Based on these facts, Houpts had knowledge of their claims against Wells Fargo during the pendency of the bankruptcy proceedings, and no later than June 22, 2012, when they filed their Complaint. 6 interests in the plaintiffs’ claims, are now, in fact, the real party in interest and any such attempted cure would only result in Houpts seeking “ratification . . . by, or joinder or substitution of,” themselves. Therefore, even though Houpts may not have been the real party in interest at the time of filing—they are now. Requiring Houpts to start over would only result in needless waste. See, e.g., Mullaney v. Anderson, 342 U.S. 415, 417 (1952) (“To dismiss the present petition and require the [] plaintiffs to start over in the District Court would entail needless waste and runs counter to effective judicial administration—the more so since, with the silent concurrence of the defendant, the original plaintiffs were deemed proper parties below.”); Newman–Green, Inc. v. Alfonzo– Larrain, 490 U.S. 826, 836–37 (1989) (“[R]equiring dismissal after years of litigation would impose unnecessary and wasteful burdens on the parties, judges, and other litigants waiting for judicial attention. Appellate-level amendments to correct jurisdictional defects may not be the most intellectually satisfying approach to the spoiler problem, but, as Judge Posner eloquently noted, because ‘law is an instrument of governance rather than a hymn to intellectual beauty, some consideration must be given to practicalities.’ ” (citation omitted) (quoting Newman–Green, Inc. v. Alfonzo–Larrain, 854 F.2d 916, 925 (7th Cir. 1988))). Accordingly, in the interest of judicial economy and our policy favoring “the just resolution of actions [by] providing litigants their day in court” we allow Houpts’ claims to proceed. 2. The District Court had Jurisdiction to Award Wells Fargo the Proceeds of the Stipulated Sale Houpts argue that under Idaho Code section 6-101 Wells Fargo should not have been allowed to collect on its lien without first “exhausting the security.” Further, Houpts argue that they did not give implied or express consent for the court to distribute the funds from the Stipulated Sale to Wells Fargo. The district court ruled that Idaho Code section 6-101 was inapplicable and that Houpts gave at least implied consent for the district court to distribute the proceeds of the Stipulated Sale. We agree with the district court.
+Often referred to as the “one action” rule, Idaho Code section 6-101(1) states that “there can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate . . . .” However, Idaho Code section 6-101(3) explicitly states that for the purposes of section 6-101: 7 [A]n “action” does not include any of the following acts or proceedings: .... (e) For the exercise, pursuant to section 45-1505, Idaho Code, of a power of sale conferred pursuant to section 45-1503, Idaho Code; .... (k) Relating to any proceeding in bankruptcy . . . ;",jurisdiction
+329,1182082,1,2,"James filed a complaint for divorce on July 30, 1986, after which Judy filed an answer and counterclaim. The decree, filed on August 2, 1988, provided, among other things, that James pay $320.00 in monthly child support and assume sole liability for Visa charge accounts with PriMerit Bank and Chase Manhattan Bank. On September 15, 1988, James filed for bankruptcy and included the community debts he had agreed to assume. [1] As a result, Judy was left solely and personally liable for the PriMerit and Chase Manhattan Visa accounts. Judy subsequently filed for spousal support. Following an evidentiary hearing, the district court filed an order granting Judy spousal support. The district court specifically found that James' promise to hold Judy harmless was an obligation characterized as being in the nature of alimony, maintenance and support, and that Judy would have been inadequately supported absent James' agreement to accept sole liability for the community debts. Accordingly, James was ordered to pay $150.00 per month to Judy until the sum of $3,429.00 shall be paid by such payments on the PriMerit Visa debt, [2] and to remain personally liable to Judy for the Chase Manhattan Visa debt, which totaled $1,145.00.",facts
+330,4471409,1,1,"On appeal from a district court’s dissolution of marriage, the Nebraska Court of Appeals reversed the determinations - 358 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports BURGARDT v. BURGARDT Cite as 304 Neb. 356 that a portion of the husband’s 401K and proceeds from an inheritance constituted nonmarital property.1 We disapprove of two imperatives articulated by the Court of Appeals: nonmarital property must be proved by documentary evidence and its value must be “definitively” established. Because we cannot say the district court abused its discretion in setting off property as nonmarital in accordance with the husband’s testimony, we reverse the decision of the Court of Appeals and remand the cause with direction.",introduction
+331,1585722,1,2,"Mississippi as well as Louisiana has adopted the Uniform Child Custody Jurisdiction Act (UCCJA). The Mississippi Legislature passed the Act in 1982, Ch. 414, Laws 1982, Miss. Code Ann. § 93-23-1, et seq., and Louisiana adopted it in 1978. La. Rev. Stat. Ann. § 13:1707, et seq. The chancellor, no doubt relying solely upon the fact that the original custody decree had been rendered in his court, did not believe the UCCJA applied to this case. In this he was manifestly in error. The first question the chancellor should have addressed was whether Mississippi was the proper state to exercise jurisdiction under Miss. Code Ann. § 93-23-5 (Supp. 1985). Mississippi apparently was not the child's home state when William filed his petition because she had lived with her mother in Louisiana for approximately two years. There is nothing in the record to suggest there was any other basis for the chancellor to assume jurisdiction under this section. Moreover, when a chancellor is apprised of a pending proceeding in another state, Miss. Code Ann. § 93-23-11 requires him to stay the custody proceedings and communicate with the court of the other state before assuming jurisdiction. Merely filing a petition does not mean a court has assumed jurisdiction under Miss. Code Ann. § 93-23-11. Ordinarily there must be some order of the court indicating it has assumed jurisdiction following filing of a pleading. See: Owens By and Through Mosley v. Huffman, 481 So.2d 231, 243 (Miss. 1985); Vanneck v. Vanneck, 49 N.Y.2d 602, 427 N.Y.S.2d 735, 738, 404 N.E.2d 1278, 1281 (1980); Parltow v. Parltow, 37 Md. App. 191, 376 A.2d 1134, 1139 (Md. Ct. Spec. App. 1977). It is not clear when the Louisiana court assumed jurisdiction. On December 20, 1984, the Hinds County Chancery Court granted William permission to set up a trust account for child support payments. The first time the chancellor addressed any merits in this custody dispute was January 30, 1985, and even this was limited to a hearing on William's contempt motion. It appears from the record that the Louisiana court may not have fully adhered to Louisiana's UCCJA, although it may well have been the more appropriate forum. Louisiana was the home state of the Castille Elizabeth, and she was physically present within their court's jurisdiction. Of course, it is not the prerogative of any court of this state to question the action to be taken by a court of a sister state when it appears their courts failed comply with their own law. However, we do have authority to decline full faith and credit to a judgment of another state when their proceedings were not substantially in accord with the jurisdictional requirements of the UCCJA. See: Owens, 481 So.2d at 247. The record does not reveal whether process was ever served upon William by the Louisiana court or whether that court was informed of the Mississippi proceedings at the time it entered its order modifying the original decree. There is also no indication in the record whether the Louisiana court held a hearing as contemplated by Owens to determine the best interest of this child. This cause must be reversed and remanded for proceedings consistent with the UCCJA. Upon remand before considering the actions taken by the Louisiana court, the chancellor should first determine whether the Mississippi chancery court has authority to act under Miss. Code Ann. § 93-23-5 (Supp. 1985). In the event this section gives him authority to exercise jurisdiction, he must then determine which state, Mississippi or Louisiana, is the more appropriate and convenient forum under Miss. Code Ann. § 93-23-13 (Supp. 1985). And finally, even if the requirements of these two sections would otherwise be sufficiently present to give the chancery court jurisdiction, in view of the posture of this case in the Louisiana court, the chancellor under the Act is further required to determine whether any modification of the original custody decree by the chancery court is foreclosed by an order or judgment of the Louisiana court. See: Miss. Code Ann. § 93-23-11; -17; -25; -27; -29 (Supp. 1985). Because all the statutes cited are quite plain and unambiguous, there is no need for further explanation by this court. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. WALKER, C.J., ROY NOBLE LEE, P.J., and DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur.",jurisdiction
+332,1129112,1,1,"Defendant, Kyle Joseph Zmich, was adjudged guilty of murder in the first degree, A.R.S. §§ 13-1101 and -1105, and aggravated assault, a class 3 felony, A.R.S. §§ 13-1204(A)(1), (B) and -1203(A)(1). Defendant was sentenced to life imprisonment without possibility of parole for twenty-five years on the murder charge and to seven and one-half years imprisonment on the aggravated assault charge. A.R.S. §§ 13-701, -702, -703, -604(G). The sentences were to be served concurrently. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. §§ 13-4031 and -4033.",jurisdiction
+333,4556508,1,1,"¶1 Erik Jensen suffered a cardiac arrest after undergoing abdominal surgery at LDS Hospital. His heart did not beat for over fifteen minutes, and he suffered brain damage as a result. Just under five years later, he filed this medical malpractice claim against LDS Hospital. ¶2 LDS Hospital requested a bifurcated trial to first determine if Jensen had missed the applicable two-year statute of limitations. The jury found that he had. And the trial court entered judgment against Jensen. JENSEN v. IHC HEALTH SERVICES Opinion of the Court ¶3 Jensen appeals the judgment, arguing that the trial court erred in its jury instruction defining the “discovery of legal injury,” which starts the running of the statute of limitations in medical malpractice actions. ¶4 We conclude the instructions as a whole were correct. We affirm.",introduction
+334,1161619,1,4,"The district court properly dismissed the co-plaintiffs because they were not real parties in interest. The court abused its discretion in denying the plaintiffs' motion to amend because it incorrectly applied the law regarding timeliness of amendments. The district court also erred by interpreting the meaning of an ambiguous document on summary judgment. We affirm the dismissal of the co-plaintiffs, vacate the denial of the motion to amend, vacate the judgment, and remand for proceedings consistent with this opinion. Because of the mixed results, we award no costs. No attorney fees are awarded. Chief Justice TROUT, Justices SILAK, SCHROEDER, and WALTERS, concur.",conclusion
+335,1189073,1,1,"The amended complaint alleged that Kaiser contracted with Union Oil for engineering, procurement and construction services for a uranium ore processing mill. Kaiser subcontracted with Centric for the construction of pre-engineered metal buildings to house the mill facilities and equipment. These buildings were to be lined with fiberglass panels. Centric eventually procured the buildings and the liner panels from Kirby through Kirby's franchisee, Drake. The panels were manufactured and sold to Kirby by Reichhold, and were not flame retardant in accord with specifications prepared by Kaiser. Gardner-Zemke, Electric Services and M.M. Sundt were all subcontractors on the jobsite the day a fire broke out and consumed one of the buildings lined with the fiberglass panels, and Boyles was a welder who, the record indicates, was the one responsible for starting the fire. The plaintiffs charge that the fire would not have occurred if the fiberglass panels had been flame retardant. The various defendants were sued on theories of negligence, breach of warranty, breach of contract and strict liability in tort. The trial judge granted motions which eliminated all of plaintiffs' claims for breach of contract, breach of warranty and strict liability, and granted the summary judgment to one contractor-defendant, Electric Services Co. The case then went to trial against Kirby, Centric and Gardner-Zemke on negligence theories only, with the jury returning a verdict for $8,392,216.90. Kirby does not contest the jury's finding of negligence, and outlines the issues for our review as follows: A. Plaintiffs did not sustain their burden of proof with respect to damages. B. The judgment of the trial court was not entered in conformity with the verdict of the jury and the Wyoming Comparative Negligence Act. C. Even if the Wyoming Contribution Among Tortfeasors Act was pertinent to calculation of the verdict, the [trial] court did not properly apply the statute.",facts
+336,1891504,2,2,"In his next issue on appeal, Simmons argues that the trial court erred in determining that it had jurisdiction to try Simmons because the State admitted it had no knowledge of exactly where the crimes occurred. In contrast, the State points out that jurisdiction is distinct from venue, and a circuit court has jurisdiction to adjudicate a first-degree murder case. Further, the State notes that venue is sufficiently proven if the jury can reasonably infer from the evidence that the crime occurred in the county where the trial occurs. [13] The circuit courts have exclusive original jurisdiction over all felonies. Art. V, § 5(b), Fla. Const.; § 26.012(2)(d), Fla. Stat. (2003). A person can be prosecuted in this state for a crime if the offense is committed either wholly or partly within this state. § 910.005(1)(a), Fla. Stat. (2003). Because a circuit court has original jurisdiction over felonies, including murder, we find that the trial court properly denied Simmons' motion to dismiss for lack of jurisdiction. As to venue: Venue need not be established beyond a reasonable doubt. If the evidence raises a violent presumption that the offense was committed within the county, or if the evidence refers to localities and landmarks at or near the scene of the alleged offense, known or probably familiar to the jury, from which they may reasonably infer that the offense was committed in the county, it will be sufficient. Lowman v. State, 80 Fla. 18, 85 So. 166, 167 (1920). In this case, it could reasonably be inferred that the felonies were committed in Lake County. The evidence in the trial court tended to show that eyewitnesses observed Tressler in Simmons' car screaming for help in Lake County on the night of December 1, 2001. Tressler's body was discovered in Lake County on the morning of December 3, 2001. While it is possible that the murder and sexual battery could have occurred in a different county, it is reasonable for a jury to infer that the crimes occurred in Lake County.",jurisdiction
+337,4247223,1,1,"Alleyne v. United States In Alleyne, the defendant (Alleyne) was charged with using or carrying a firearm in relation to a crime of violence, as well as other federal offenses, arising from the robbery of a store manager. 570 U.S. at 103. The applicable statute provided that anyone who uses or carries a firearm in relation to a crime of 6. Our decision in Falcon did not address the applicability of Alleyne to chapter 2014-220 because neither party raised the issue. -9- violence shall be sentenced to a minimum of five years in prison. Id. However, if the firearm is brandished, the statute mandated a minimum sentence of seven years’ incarceration. Id. at 104. The jury convicted Alleyne and indicated on the verdict form that he used or carried a firearm; however, the jury did not indicate a finding that the firearm was brandished. Id. The trial court found that the evidence supported a finding of brandishing and imposed a seven-year sentence on this count. Id. The United States Court of Appeals for the Fourth Circuit affirmed. Id. On certiorari review, the United States Supreme Court vacated the Fourth Circuit’s judgment with respect to the sentence on the count of using or carrying a firearm in relation to a crime of violence and remanded for resentencing. Id. at 117-18. The Supreme Court held that any fact that increases the mandatory minimum sentence for an offense is an “element” which must be submitted to a jury and found beyond a reasonable doubt. Id. at 108. In reaching this holding, the Supreme Court relied upon Apprendi v. New Jersey, 530 U.S. 466 (2000), in which it held that any fact that increases the statutory maximum sentence is an “element” of the offense to be found by a jury. Alleyne, 570 U.S. at 106; see also Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). - 10 - The Supreme Court explained that “Apprendi’s definition of ‘elements’ necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment.” Alleyne, 570 U.S. at 108. The Court further stated: [I]t is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment. Elevating the low end of a sentencing range heightens the loss of liberty associated with the crime: the defendant’s “expected punishment has increased as a result of the narrowed range” and “the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish.” Apprendi, supra, at 522, 120 S. Ct. 2348 (THOMAS, J., concurring). Why else would Congress link an increased mandatory minimum to a particular aggravating fact other than to heighten the consequences for that behavior? This reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury. [n.2] [N.2.] Juries must find any facts that increase either the statutory maximum or minimum because the Sixth Amendment applies where a finding of fact both alters the legally prescribed range and does so in a way that aggravates the penalty. Importantly, this is distinct from factfinding used to guide judicial discretion in selecting a punishment “within limits fixed by law.” Williams v. New York, 337 U.S. 241, 246 (1949). While such findings of fact may lead judges to select sentences that are more severe than the ones they would have selected without those facts, the Sixth Amendment does not govern that element of sentencing. Id. at 113 (citations omitted). - 11 - The Supreme Court rejected the contention that, because the seven-year sentence could have been imposed without the finding of brandishing, the Sixth Amendment right to trial by jury was not violated: [T]he essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact. It is obvious, for example, that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction. Similarly, because the fact of brandishing aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, regardless of what sentence the defendant might have received if a different range had been applicable. Id. at 114-15. Section 775.082(1)(b) The relevant portion of section 775.082(1), Florida Statutes, provides: (b)1. A person who actually killed, intended to kill, or attempted to kill the victim and who is convicted under s. 782.04 of a capital felony, or an offense that was reclassified as a capital felony, which was committed before the person attained 18 years of age shall be punished by a term of imprisonment for life if, after a sentencing hearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. If the court finds that life imprisonment is not an appropriate sentence, such person shall be punished by a term of imprisonment of at least 40 years. A person sentenced pursuant to this subparagraph is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(a). - 12 - 2. A person who did not actually kill, intend to kill, or attempt to kill the victim and who is convicted under s. 782.04 of a capital felony, or an offense that was reclassified as a capital felony, which was committed before the person attained 18 years of age may be punished by a term of imprisonment for life or by a term of years equal to life if, after a sentencing hearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. A person who is sentenced to a term of imprisonment of more than 15 years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(c). (Emphasis added.) Thus, a finding that a juvenile offender actually killed, intended to kill, or attempted to kill the victim results in a minimum sentence of forty years’ imprisonment under subsection (1)(b)1. Without this finding, the trial court is not required to impose a minimum sentence. See § 775.082(1)(b)2., Fla. Stat. Further, under section 921.1402, a finding of actual killing, intent to kill, or attempt to kill entitles a juvenile offender to a sentence review in twenty-five years, whereas without the finding, the juvenile offender is entitled to a sentence review in fifteen years (provided the trial court imposes a sentence greater than fifteen years). § 921.1402(2)(a), (c), Fla. Stat. Because a finding of actual killing, intent to kill, or attempt to kill “aggravates the legally prescribed range of allowable sentences,” Alleyne, 570 U.S. at 115, by increasing the sentencing floor from zero to forty years and lengthening the time before which a juvenile offender is entitled to a sentence review from fifteen to twenty-five years, this finding is an - 13 - “element” of the offense, which Alleyne requires be submitted to a jury and found beyond a reasonable doubt. See id. at 108.7 The Verdict In this case, the verdict form did not separate out the theories of first-degree murder; therefore, it is unclear whether the jury found Williams guilty of premeditated murder, felony murder, or both. Further, with respect to the offense of first-degree murder, there was no interrogatory on the verdict form as to whether Williams discharged a firearm.8 Based upon the jury instructions given, it cannot be determined from the general verdict form whether the jury found beyond a reasonable doubt that Williams actually killed, intended to kill, or attempted to kill Brookins. First, with respect to actual killing, as part of the instruction on premeditated first-degree murder, the jury received an instruction on principals, which allowed it to find Williams guilty even if he did not actually shoot Brookins. The jury was advised: If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did if, one, the defendant had a conscious intent that the criminal act be done; and, 7. We recede from Falcon to the extent it concludes this determination is to be made by a trial court. 8. The lesser included offenses contained interrogatories. - 14 - two, the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to commit—to actually commit the crime. Moreover, as part of the felony-murder instruction, the jury was instructed based both upon whether Williams was the actual killer or whether someone else shot Brookins: To prove the crime of first-degree felony murder, the State must prove the following three elements beyond a reasonable doubt: 1. That James Vincent Brookins is dead. 2. The death occurred as a consequence of and while Rodrick Williams was engaged in the commission of a robbery, an attempted robbery, kidnapping, or an attempted kidnapping. 3. That Rodrick Williams was a person who actually killed James Vincent Brookins, or James Vincent Brookins was killed by a person other than Rodrick Williams but both Rodrick Williams and the person who killed James Vincent Brookins were principals in the commission of a robbery, an attempted robbery, kidnapping, or an attempted kidnapping. (Emphasis added.) Therefore, based upon the instructions given, the general guilty verdict for first-degree murder fails to demonstrate the jury found beyond a reasonable doubt that Williams actually killed Brookins. Whether the jury found beyond a reasonable doubt that Williams intended to kill Brookins cannot be determined from the verdict either. The jury was instructed under the premeditated theory of first-degree murder that “[k]illing with premeditation is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing.” Therefore, regardless of whether - 15 - Williams actually killed Brookins, or was a principal, a finding of intent to kill would have been inherent in a guilty verdict as to first-degree premeditated murder. However, the general verdict form that was used is problematic because the jury was instructed that “[i]n order to convict of first-degree felony murder, it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill.” The jury found Williams guilty of the underlying felony of kidnapping. However, with respect to that offense, the jury was instructed as follows: To prove the crime of kidnapping, the State must prove the following three elements beyond a reasonable doubt: 1. That Rodrick Williams forcibly or by threat confined or abducted or imprisoned James Vincent Brookins against his will. 2. Rodrick Williams had no lawful authority. 3. Rodrick Williams acted with intent to commit or facilitate commission of robbery or attempted robbery . . . . 4. Or inflict bodily harm upon or to terrorize the victim or another person. (Emphasis added.) Even if the jury found that Williams acted with the intent to inflict bodily harm upon Brookins,9 this does not equate to an intent to kill. 9. During the interrogation, Williams admitted to hitting Brookins with his hands. The jailhouse informant testified that Williams stated he struck Brookins with a gun. - 16 - Based upon the foregoing, and because of the general verdict form with respect to the charge of first-degree murder, there is no clear jury finding that Williams actually killed, intended to kill, or attempted to kill Brookins. Therefore, an Alleyne violation occurred. Harmless Error Neither this Court nor the United States Supreme Court has addressed whether Alleyne violations are subject to harmless error review. We conclude such violations can be harmless. In Apprendi, the Supreme Court held “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. In Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court explained: [T]he “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority. Id. at 303-04 (citations omitted) (quoting 1 Joel Prentiss Bishop, Criminal Procedure § 87, at 55 (2d ed. 1872)). In Washington v. Recuenco, 548 U.S. 212, 215 (2006), the Supreme Court held that Blakely violations are subject to harmless - 17 - error review. See also Galindez v. State, 955 So. 2d 517, 522-23 (Fla. 2007) (“[T]o the extent some of our pre-Apprendi decisions may suggest that the failure to submit factual issues to the jury is not subject to harmless error analysis, Recuenco has superseded them.”). Because Blakely derived from Apprendi, and Blakely errors are subject to harmless error review, we conclude that Alleyne violations can be harmless as well. In Galindez, after concluding that Apprendi violations are subject to harmless error review, this Court delineated the applicable consideration under the facts of that case: Count I charged that “on various occasions” in a four-month period, Galindez “committed an act defined as sexual battery” on a child “by placing his penis in union with . . . and/or penetrating the vagina of A.M. (a minor) with his penis.” Galindez claims that because the charge was made in the alternative (and therefore the jury did not specifically find that penetration was involved), the trial court could assess only 40 points for victim injury. . . . [F]or purposes of our harmless error analysis the issue is whether the failure to have the jury make the victim injury finding as to Count I contributed to the conviction or sentence—in other words, whether the record demonstrates beyond a reasonable doubt that a rational jury would have found penetration. At trial the young victim, then pregnant by Galindez, testified that she and Galindez engaged in sexual intercourse on multiple occasions over a period of several months. Galindez’s confession confirming these facts, including his admission that they repeatedly had sexual intercourse, was admitted at trial. Finally, Galindez’s defense at trial was that the twelve-year-old victim consented. Thus, Galindez did not dispute the facts of the sexual relationship at trial, and he did not contest them at resentencing, either. - 18 - 955 So. 2d at 523-24 (first alteration in original) (emphasis added) (citation omitted). We concluded that “[i]n light of the clear and uncontested record evidence of penetration,” the error was harmless beyond a reasonable doubt. Id. at 524. Based upon Galindez, the applicable question in evaluating whether an Alleyne violation is harmful with respect to section 775.082(1)(b) is whether the failure to have the jury make the finding as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim contributed to his sentence— stated differently, whether the record demonstrates beyond a reasonable doubt that a rational jury would have found the juvenile offender actually killed, intended to kill, or attempted to kill the victim. See Galindez, 955 So. 2d at 523. Application Based upon our review of the record in this case, the Alleyne violation cannot be deemed harmless. Unlike the defendant in Galindez, who did not dispute during trial that he and the victim engaged in sexual intercourse, Williams disputed both that he killed Brookins and that he was a willing participant in the murder. There was sharply conflicting evidence in the form of Williams’s statements during his interrogation that he hoped Brookins would live, and the testimony of the jailhouse informant who painted Williams as both an active participant in the plan to lure Brookins to the trap house and the actual killer. - 19 - In the light least favorable to Williams, the evidence reflects that (1) Parker called Williams and informed him that she had been robbed, and she believed Brookins “set her up”; (2) within a few hours of that call, Williams sent Parker a text message stating, “i cant talk cuz im round 2 many people but jus chill bae ima take care of yo problems jus give me the greenlight”; and (3) according to the informant, Williams helped devise the plan to lure Brookins to the trap house on the pretense of having gold teeth created and actively participated in the crimes against Brookins. This included striking Brookins with a firearm that Williams brought to the house; demanding the location of the safe while Brookins pleaded, “It doesn’t have to be like this. I thought we was better than this”; sending Parker to purchase duct tape; binding Brookins with the tape; waiting until the early morning hours to move Brookins to avoid being seen; placing Brookins in the trunk of a vehicle, bound and beaten but still alive; driving the vehicle to St. Johns County with Henderson in the passenger seat while Parker followed in a separate vehicle; wiping down the vehicle; and shooting Brookins twice. However, the jury could have rejected the informant’s testimony on the basis that he was a jailhouse informant who received a reduced sentence in exchange for his testimony, because certain aspects of his testimony did not make sense,10 or 10. The informant testified that Henderson, Parker, and Williams acquired approximately $300,000 from Brookins’s safe and divided it equally. According to the informant, Williams used a portion of his third of the money to purchase a - 20 - because the informant had been previously housed with codefendant Henderson, who, according to the informant, assisted him with having a criminal charge dropped. Nonetheless, Williams’s interrogation still paints an incriminating picture. Williams admitted the following: (1) when he arrived at the trap house, Henderson gave him a firearm; (2) once he saw Brookins, who was unconscious from being beaten, he stepped outside and covered a portion of his face with a shirt;11 (3) he told Brookins, “Just cooperate, bro, and . . . you won’t die”; (4) he struck Brookins with his hands; (5) while at the trap house, and after Brookins had been severely beaten and duct-taped, he smoked marijuana that had been removed from Brookins’s pocket; (6) he rode with Parker to the location where Brookins had parked a vehicle and then drove that vehicle back to the trap house; (7) he removed a scooter from the trunk of that vehicle to make room for Brookins; (8) for approximately forty-five minutes, he drove the vehicle with Brookins in the trunk to the rural road in St. Johns County while Parker and Henderson rode in a separate vehicle; and (9) upon arrival, he could hear Brookins in the trunk screaming. house for his mother and a vehicle. However, the informant testified immediately afterwards that Williams’s mother was evicted from the house for “falling behind in rent.” 11. When the detective suggested that Williams did this because he and Brookins knew each other and he “felt bad,” Williams agreed. - 21 - It can be argued that a juvenile who admits to participating in a kidnapping and homicide to this extent intended for the victim to be killed. The jury found Williams guilty of kidnapping Brookins; however, as previously discussed, intent to kidnap does not equal intent to kill, and the jury was instructed that to find Williams guilty of felony murder, the State need not prove Williams had a premeditated design or intent to kill. The jury could have believed that Williams intended to kidnap Brookins in an attempt to recover money or the drugs that had been stolen from Parker, a woman with whom he was having a sexual relationship, but that he neither shot Brookins nor intended for him to die. A review of the interrogation recording reflects that Williams stated he hoped and believed Brookins would live.12 Further, during closing statements, defense counsel argued that the fact that Williams placed a shirt over a portion of his face after seeing Brookins at the trap house demonstrated he believed Brookins would not be killed: Well, if he knows that Mr. Brookins is going to be murdered, why would you cover your face? He’s the only person there that could say anything about [Williams] being involved. You don’t cover 12. Williams made statements such as “[H]onestly, I was hoping that he would live,” “The plan was that . . . they was going to leave him alive,” “They telling me now at this point that they going to drop him off and leave him in the trunk . . . . [There’s] so much relief just going off in my body. I’m, like, okay, so he’s gonna live . . . . But little do we found out, when we get there [Henderson] kills him,” and “I was getting out of the car, and I heard [Brookins] still screaming or whatever. And I was, like, okay, he’s still living. So I was happy at that point . . . that he wasn’t dead.” - 22 - your face if you know somebody’s going to be murdered. That doesn’t make sense. Because the record fails to demonstrate beyond a reasonable doubt that a rational jury would have found that Williams actually killed, intended to kill, or attempted to kill Brookins, the Alleyne violation here was not harmless. Remedy Williams suggests two alternative remedies for the Alleyne violation that occurred: empanel a new jury to make the requisite finding or resentence him pursuant section 775.082(1)(b)2., the applicable provision where there is a finding that the juvenile offender did not actually kill, intend to kill, or attempt to kill the victim. Our precedent in the context of Apprendi/Blakely violations demonstrates the latter is the appropriate remedy. In Plott v. State, 148 So. 3d 90, 95 (Fla. 2014), the circuit court during resentencing imposed upward departure sentences without a jury determining the applicable factual basis for the departure, in violation of Apprendi and Blakely. We described the remedy as follows: We remand to the district court for the application of a harmless error analysis under Galindez, and, if it is determined not to be harmless, to remand the case for resentencing. Id. (emphasis added).13 13. On remand, the Second District determined the error was harmless. See Plott v. State, 165 So. 3d 33, 34 (Fla. 2d DCA 2015). - 23 - Because Alleyne derives from Apprendi, and resentencing is the proper remedy where a harmful Apprendi/Blakely violation has occurred, see Plott, 148 So. 3d at 95, we hold resentencing is the appropriate remedy for an Alleyne violation that is not harmless. Here, because the record fails to demonstrate beyond a reasonable doubt that a rational jury would have found Williams actually killed, intended to kill, or attempted to kill Brookins, he is entitled to be resentenced under section 775.082(1)(b)2. The dissent questions whether this remedy is necessary or appropriate, and suggests that nothing precludes the empaneling of a jury to make the factual determination. We are, however, hesitant to wade into “a thicket of potential and thorny double jeopardy issues.” United States v. Pena, 742 F.3d 508, 518 (1st Cir. 2014). In Pena, a case that involved guilty pleas to drug offenses, the United States conceded an Alleyne error occurred that was not harmless, but requested that a “sentencing” jury be empaneled to make a factual determination as to an element that, if found beyond a reasonable doubt, would authorize an enhanced mandatory minimum sentence. Id. at 509, 514.14 In declining this request, the United States Court of Appeals for the First Circuit first noted: 14. The element was death or serious bodily injury resulting from use of the drugs. Id. at 509. The defendant in Pena entered “a straight guilty plea to drug dealing but not to ‘death resulting.’ ” Id. - 24 - Decisions of the Courts of Appeals after Alleyne have remanded for resentencing by the court. We are not aware of any court that has been confronted with facts analogous to those here. But in at least nine circuit court cases that have found reversible Alleyne error, the sentence was vacated and remanded for resentencing by the district judge. We are aware of no case, and the parties have cited none, remanding for use of a sentencing jury after a reversible Alleyne error. Id. at 517-18 (footnote omitted). Further, with respect to double jeopardy concerns, the First Circuit stated: If this conviction were final, the constraint of double jeopardy would be clearer. It is also true that those double jeopardy safeguards do not usually apply to resentencing. But the effect of Alleyne and its predecessors is to preclude certain sentences from being imposed unless the elements supporting them have been proven to a jury beyond a reasonable doubt. The Supreme Court has not yet dealt with the double jeopardy issues in this context, much less in these transition cases where what was once thought to be a sentencing issue has been recognized instead to be an element of a crime. .... The prosecution’s proposed course of action here seeks to . . . obtain the benefit of the plea’s admissions to the essential elements of the two drug crimes, which are also among the essential elements . . . of the aggravated “death resulting” crime. Indeed, the prosecution’s brief is explicit that the sentencing jury would take the admissions of guilt from the plea for the other elements and then decide only the “death resulting” issue. Under the doctrine of constitutional avoidance, we do not decide the double jeopardy issues associated with the government’s request, but note them and avoid them. Id. at 518-19 (citation omitted). In light of the constitutional concerns presented by the Pena court with respect to empaneling a jury where a harmful Alleyne error has occurred, we conclude that resentencing pursuant to section 775.082(1)(b)2. is the more prudent course. - 25 -",analysis
+338,6342490,1,1,"This case presents an appeal from the denial of a petition to set aside a conviction pursuant to Neb. Rev. Stat. § 29-2264 (Cum. Supp. 2020). The petitioner, with the assistance of a publicly funded pro bono program at the University of Nebraska College of Law, has been pursuing set asides of several eligible convictions. All preceding petitions had been successful, and the State supported the present set aside request. The district court expressed concern at the hearing regarding a recent weapons conviction. It also voiced certain misunderstandings, corrected by the State, about the effects of - 370 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRUNSEN Cite as 311 Neb. 368 setting aside convictions and whether other judges had fully reviewed the petitioner’s criminal record. The court hypothesized that as a result of the petitioner’s crimes being set aside, he could, ultimately, commit a future act of domestic terrorism and the media would direct blame upon the courts for having simply “signed off” on the process. The court also questioned whether the petitioner’s representation by a publicly funded educational program was a good use of taxpayer money. The petitioner asserts the court’s ruling was based upon untenable and unreasonable reasoning and impermissible bias and, thus, was an abuse of discretion.",introduction
+339,2091881,1,2,"In the instant cause, the circuit court, pursuant to section 2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-1401(f) (West 2000)), vacated a prior judgment order entered on May 8, 2000, reasoning that the May 8 order awarding statutory attorney fees to Ford Credit was void ab initio because the law firms representing Ford Credit lacked Rule 721(c) registration with this court. At issue in this appeal is whether a law firm's failure to register as a professional service corporation with this court, pursuant to the requirement set forth in our Rule 721(c), renders the legal services provided by that law firm the unauthorized practice of law, nullifies the proceedings in which the firm participated, and causes the resulting judgments of such proceedings to be void. Our review of this issue is de novo. People v. Johnson, 206 Ill.2d 348, 359, 276 Ill.Dec. 399, 794 N.E.2d 294 (2002). Petitions for relief from judgments filed pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)) invoke[] the equitable powers of the circuit court, which should prevent enforcement of a    judgment when it would be unfair, unjust, or unconscionable. Smith v. Airoom, Inc., 114 Ill.2d 209, 225, 102 Ill.Dec. 368, 499 N.E.2d 1381 (1986). At issue in the instant cause is subsection (f) of section 2-1401, which provides: Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief. 735 ILCS 5/2-1401(f) (West 2000). Section 2-1401(f) codifies a common law rule allowing litigants to attack a void judgment at any time. See Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 104-05, 267 Ill.Dec. 58, 776 N.E.2d 195 (2002). In a petition to vacate a void judgment brought pursuant to subsection (f) of section 2-1401, the general rules pertaining to petitions filed under section 2-1401 — that they must be brought within two years of the order of judgment, that the petitioner must allege a meritorious defense to the original action, and that the petitioner must show that the petition was brought with due diligence—do not apply. Sarkissian, 201 Ill.2d at 104, 267 Ill.Dec. 58, 776 N.E.2d 195. Rather, [t]he allegation that the judgment or order is void substitutes for and negates the need to allege a meritorious defense and due diligence. Sarkissian, 201 Ill.2d at 104, 267 Ill.Dec. 58, 776 N.E.2d 195. A void order or judgment is, generally, one entered by a court without jurisdiction of the subject matter or the parties, or by a court that lacks the inherent power to make or enter the order involved. In re Estate of Steinfeld, 158 Ill.2d 1, 12, 196 Ill.Dec. 636, 630 N.E.2d 801 (1994); People v. Wade, 116 Ill.2d 1, 5, 107 Ill.Dec. 63, 506 N.E.2d 954 (1987). A void judgment is from its inception a complete nullity and without legal effect. In re Application of the Cook County Collector for Judgment & Sale Against Lands & Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1985, 228 Ill. App.3d 719, 731, 170 Ill.Dec. 649, 593 N.E.2d 538 (1991); In re Marriage of Allcock, 107 Ill.App.3d 150, 153, 62 Ill.Dec. 865, 437 N.E.2d 392 (1982). We have cautioned, however, that in declaring a prior order to be void, the court must be mindful that it is setting aside a final judgment based upon a collateral attack. Accordingly, we have recently held that `[b]ecause of the disastrous consequences which follow when orders and judgments are allowed to be collaterally attacked, orders should be characterized as void only when no other alternative is possible.' Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325, 341, 264 Ill. Dec. 283, 770 N.E.2d 177 (2002), quoting In re Marriage of Vernon, 253 Ill.App.3d 783, 788, 192 Ill.Dec. 668, 625 N.E.2d 823 (1993). In its submission to this court, Ford Credit contends that the lower courts erred in holding that the judgment order awarding Ford Credit statutory attorney fees was void ab initio. According to Ford Credit, the appellate court majority improperly equated a law firm's failure to register with this court pursuant to Rule 721(c) with the unauthorized practice of law. Ford Credit notes that the sole claim raised by defendant in the circuit court to support his argument that the attorney fees award is void and should be vacated is that the law firms hired by Ford Credit did not register with this court under Rule 721. The circuit court held, and the appellate majority agreed, that this defect alone was sufficient to void the previously entered judgment order. Ford Credit argues that there are several points upon which the appellate court should be reversed. First, Ford Credit notes that in arriving at its ruling, the appellate majority improperly relied upon Remole Soil Service, Inc. v. Benson, 68 Ill.App.2d 234, 215 N.E.2d 678 (1966), a case which Ford Credit asserts is factually inapposite to the matter at bar. Ford Credit additionally contends that, by relying upon Remole, the appellate majority failed to follow its own factually relevant precedent. Ford Credit notes that only a few months prior to filing its ruling in the instant cause, the appellate court decided Joseph P. Storto, P.C. v. Becker, 341 Ill. App.3d 337, 275 Ill.Dec. 153, 792 N.E.2d 384 (2003), wherein the court ruled that a law firm's failure to register pursuant to our Rule 721(c) did not result in the voiding of a contract for attorney fees. Second, Ford Credit observes that the appellate majority failed to consider that the judgment award for statutory attorney fees was in its own favor as the prevailing party in the consumer fraud action, and was not awarded to its law firms. Third, Ford Credit notes that, at all times during this litigation, it was represented by attorneys who were duly licensed to practice law in this state. As such, Ford Credit contends, there was no unauthorized practice of law by any lawyer involved in this case. In addition, Ford Credit asserts that the lower courts failed to consider the fact that the law firm of Schulz & Associates, P.C., was properly registered with this court on April 9, 2002, the date on which the circuit court entered its decision to void the attorney fees judgment order. Finally, Ford Credit contends that the judgment order awarding statutory attorney fees was not void, because there was no claim that the circuit court lacked jurisdiction over either the subject matter or the parties. As such, Ford Credit concludes, defendant's motion to vacate the judgment order awarding attorney fees was an improper collateral attack. In response, defendant asserts that the circuit court properly granted his motion to vacate the judgment order awarding Ford Credit statutory attorney fees, and that the action of the circuit court was properly affirmed by the appellate majority. In his submission to this court, defendant contends that by failing to advise the circuit court that their law firms lacked registration with this court pursuant to Rule 721(c), Ford's attorneys had committed a fraud on the court. Defendant contends that all work performed on behalf of Ford Credit and itemized in the fee petition occurred while the law firms lacked the required registration, and that Illinois statutes and Rule 721 prohibit the collection of legal fees by a corporation that has failed to obtain a certificate of registration. As a result, defendant contends, the judgment order awarding attorney fees to Ford Credit is void as against public policy. In his brief to this court, defendant further urges this court to hold that the fee award to Ford was void because it exceeded the trial court's inherent power and authority by infringing on the exclusive authority of the Illinois Supreme Court to regulate the practice of law in Illinois by professional service corporation law firms. Defendant concludes by arguing that because Ford Credit had no right to recover attorney fees paid to professional service corporations which were not authorized to practice, the circuit court did not acquire subject matter jurisdiction to adjudicate such a claim for fees nor to enter judgment thereon in favor of Ford. We reject each of defendant's arguments. This court has the inherent power to define and regulate the practice of law in this state. In re Anastaplo, 3 Ill.2d 471, 475, 121 N.E.2d 826 (1954); People ex rel. Chicago Bar Ass'n v. Goodman, 366 Ill. 346, 349-50, 8 N.E.2d 941 (1937). More specifically, the power to prescribe rules governing attorney conduct, and to discipline attorneys for violating those rules, rests solely in this court. People ex rel. Brazen v. Finley, 119 Ill.2d 485, 494, 116 Ill.Dec. 683, 519 N.E.2d 898 (1988). To this end, our court has promulgated rules which set forth detailed regulations for the study of law and which govern the admission of applicants to our state bar. See 134 Ill.2d Rs. 701 through 720. This court has also created a comprehensive scheme to regulate attorneys and discipline them for misconduct. As part of this regulatory scheme, we have promulgated rules of professional conduct for state-licensed attorneys (See 134 Ill.2d Rs. 1.1 through 8.5), and have constituted an Attorney Registration and Disciplinary Commission (ARDC) (134 Ill.2d R. 751), and created the office of an Administrator (134 Ill.2d R. 752) to supervise [t]he registration of, and disciplinary proceedings affecting, members of the Illinois bar. 134 Ill.2d R. 751(a). In addition, this court has promulgated detailed rules which prescribe the appropriate discipline when the Rules of Professional Conduct are violated. See 134 Ill.2d Rs. 751 through 775; 137 Ill.2d Rs. 776, 777; 188 Ill.2d R. 778; 155 Ill.2d R. 780. This court has also created a procedural framework within which the ARDC performs its duties to investigate complaints of misconduct against licensed attorneys, hold hearings on those complaints, and provide review of the findings with respect to those complaints. 166 Ill.2d R. 753. The above-described regulatory rules which govern the admission of lawyers to our state bar, regulate the practice of law and the conduct of lawyers, and prescribe discipline for lawyer misconduct are intended to safeguard the public and assure the integrity of our legal system. These regulatory provisions assure that only those individuals who are fit and qualified to practice law will be licensed in this state, that those individuals will practice law ethically and with competence, and that any infractions of the Rules of Professional Conduct will be investigated and discipline will be imposed if appropriate. In contrast to the regulatory rules discussed above, the provisions contained in our Rule 721 do not have as their primary purpose the protection of the public safety. Rather, Rule 721 is designed to permit duly licensed lawyers the business option of organizing in professional service corporations as a means of providing them with limited liability protection. Under the Corporation Practice of Law Prohibition Act (705 ILCS 220/0.01 et seq. (West 2000)), a corporation is prevented from practicing law. However, with the passage of the Professional Service Corporation Act (805 ILCS 10/1 et seq. (West 2000)), licensed professionals were afforded the choice of organizing their practices in a corporate form. By enacting the Professional Service Corporation Act, the legislature intended to provide for the incorporation of an individual or group of individuals to render the same professional service or related professional services to the public for which such individuals are required by law to be licensed    while preserving the established professional aspects of the personal relationship between the professional person and those he serves professionally. 805 ILCS 10/2 (West 2000). Section 7 of the Professional Service Corporation Act requires that the corporations organized and incorporated under this Act must render professional services only through its officers, employees and agents who are duly licensed    to render such professional services within this State. 805 ILCS 10/7 (West 2000). Section 16 of the Professional Service Corporation Act specifically applies to attorneys at law and provides: [T]he provisions of this Act shall be applicable to attorneys at law only to the extent and under such terms and conditions as the Supreme Court of Illinois shall determine to be necessary and appropriate. 805 ILCS 10/16 (West 2000). It is through Rule 721 that this court allows duly licensed lawyers the option to organize their law firms under one of several statutory vehicles providing limited liability, including professional service corporations. Paragraph (a) of Rule 721 requires that each corporate shareholder and any employee engaged in the practice of law must be licensed to practice law, and that the entity shall do nothing which, if done by an individual attorney, would violate the standards of professional conduct applicable to attorneys licensed by this court. 166 Ill.2d R. 721(a)(3). [1] Paragraph (b) of this rule requires that the corporation, and the attorneys practicing through this entity, must abide by the standards of professional conduct applicable to attorneys licensed by this court. 166 Ill.2d R. 721(b). Paragraph (c) requires each corporation or association that seeks to practice law to register with this court. See 166 Ill.2d R. 721(c). Specifically, Rule 721(c) provides: (c) No corporation or association or limited liability company shall engage in the practice of law in Illinois, or open or maintain an establishment for that purpose in Illinois, without a certificate of registration issued by this court. The initial registration application requires a fee of $50 (166 Ill.2d R. 721(e)), and annual renewals must be accompanied by a $40 fee (166 Ill.2d R. 721(f)). Finally, any violation of this rule by the entity is a ground for the court to terminate or suspend the right of the [entity] to practice law or otherwise to discipline it. 166 Ill.2d R. 721(b). In the matter before us, defendant's sole claim in the circuit court to support his argument that the judgment order awarding attorney fees to Ford Credit is void and must be vacated is that the law firms representing Ford Credit throughout the litigation were not registered with this court pursuant to Rule 721(c). The circuit court held, and the appellate majority agreed, that this defect alone rendered the previously entered judgment order void, as the law firm's failure to register under Rule 721(c) equated with the unauthorized practice of law. We reject this analysis. We hold that a correct interpretation of the scope and purpose of our Rule 721(c) was set forth in Joseph P. Storto, P.C. v. Becker, 341 Ill. App.3d 337, 275 Ill.Dec. 153, 792 N.E.2d 384 (2003), a decision which the appellate court below acknowledged but refused to follow. The Storto case also involved the question of a law firm's failure to register with this court pursuant to Rule 721(c). That case arose from an attorney fees dispute between the plaintiff law firm and its former client. After the parties ended their attorney-client relationship, the firm filed suit against the client seeking unpaid fees. The defendant client moved for summary judgment, arguing that because the firm was not properly registered with this court pursuant to Rule 721(c), the contract for legal fees was void as a matter of public policy, and she was entitled to judgment as a matter of law. The trial court granted the motion, holding that because the law firm was not properly registered under Rule 721(c), it was without authority to provide legal services and the contract it had entered into with the client was invalid. On appeal, the appellate court reversed. The Storto court observed that although Rule 721(c) requires that professional service corporations register with this court, the rule also lacks civil or criminal penalties for noncompliance. [C]riminal or civil penalties would indicate that the licensing requirements were enacted because they have a significant impact on public health or safety. Storto, 341 Ill.App.3d at 344, 275 Ill.Dec. 153, 792 N.E.2d 384. Because Rule 721(c) fails to include civil or criminal liability for the failure to register, the Storto court held that this indicated that the registration requirement was not promulgated for the protection of the public safety. Storto, 341 Ill.App.3d at 344, 275 Ill.Dec. 153, 792 N.E.2d 384. In addition, the Storto court reasoned that this conclusion was supported by the fact that a law firm generally does not incorporate to benefit its clients or to advance the public welfare. [Citation]. Rather, a law firm incorporates to enjoy certain tax benefits and to reduce its potential civil liability. Storto, 341 Ill.App.3d at 344, 275 Ill.Dec. 153, 792 N.E.2d 384. Accordingly, the Storto court determined that, because Rule 721(c) was not enacted for the protection of the public, the contractual obligations owed to a professional service corporation law firm which lacked registration under Rule 721(c) could not be voided absent a showing of prejudice resulting from the failure to register. Storto, 341 Ill.App.3d at 342-44, 275 Ill.Dec. 153, 792 N.E.2d 384. Under the circumstances presented in that case, the court concluded that allowing the client to escape her contractual obligations would be disproportionate to the wrong committed by the law firm. Storto, 341 Ill.App.3d at 343, 275 Ill.Dec. 153, 792 N.E.2d 384. We adopt the analysis of Rule 721 set forth by the court in the Storto decision. We hold that a violation of the registration requirement contained in Rule 721(c) does not lead to the conclusion that the lawyers of the unregistered firm lacked either the authority or the competence to practice law. We emphasize that there is a fundamental difference between an unlicensed individual representing a party in legal proceedings or performing activities traditionally considered to be the practice of law and duly licensed attorneys who happen to belong to a law firm that has not filed its registration and paid its fees pursuant to Rule 721(c). The material inquiry in assessing whether there has been an unauthorized practice of law is whether the individual who acts on behalf of a client is duly licensed by this court, as it is only individuals—and not corporations —who are granted the privilege to practice law. When unlicensed individuals engage in the practice of law, the public is at risk of harm. In contrast, when a law firm fails to comply with the registration requirement in our Rule 721(c), it is the noncomplying firm that is harmed, not the public. By failing to register, the law firm loses its right to invoke the corporate protections of limited liability that are set forth in Rule 721. This reality further underscores that the registration requirement in Rule 721(c) was not enacted to safeguard the public welfare, but to benefit those law firms seeking the tax and limited liability advantages of incorporation. Therefore, duly licensed attorneys who belong to a firm that lacks Rule 721(c) registration do not, by virtue of the unregistered nature of the firm, engage in the unauthorized practice of law. Cf. People v. Brigham, 151 Ill.2d 58, 175 Ill.Dec. 720, 600 N.E.2d 1178 (1992) (defendant was not automatically deprived of his sixth amendment right to counsel because his attorney had failed to pay his annual registration dues with this court; counsel's oversight of nonpayment did not diminish his competency as an attorney). Accordingly, the appellate court erred in applying the nullity rule set forth in Remole Soil Service, Inc. v. Benson, 68 Ill. App.2d 234, 215 N.E.2d 678 (1966), to a violation of the registration requirement of Rule 721(c). In affirming the circuit court's holding that the judgment order awarding Ford Credit attorney fees was null and void, the appellate court principally relied on Remole. We hold that Remole is factually inapposite to the cause before us. In Remole, an Illinois corporation initiated a lawsuit in small claims court against the defendant. The suit was filed and tried to judgment by the corporation's office manager, who was an unlicensed attorney. Thereafter, the defendant filed a motion with the court to find the corporation and its office manager in contempt for practicing law without a license. The circuit court denied the motion. On appeal, the appellate court reversed. The Remole court cited the rule that, generally, corporations are prohibited from the practice of law, and determined that the corporation in that case violated that rule when its office manager filed and tried the corporation's lawsuit. It is clear that the office manager was engaged in the practice of law. We find nothing in the statutes, case law, or Supreme Court Rules which directly or by reasonable implication permits a business corporation to prosecute or defend its own suits in our courts, on any level except through a licensed attorney. It necessarily follows that the plaintiff and its sales manager are in technical contempt of court. Remole, 68 Ill.App.2d at 239, 215 N.E.2d 678. The Remole court then held that `[p]roceedings in a suit by a person not entitled to practice are a nullity, and the suit may be dismissed. If the cause has proceeded to judgment, the judgment is void and will be reversed.' Remole, 68 Ill.App.2d at 239, 215 N.E.2d 678, quoting 7 C.J.S. Attorney & Client § 16b. Applying the nullity rule to the facts before it, the Remole court held that because the legal proceedings in that case were instituted without authority, they violated the law. Therefore, the court concluded, the judgment resulting from such proceedings was void. Accordingly, the appellate court in Remole instructed the circuit court to vacate the judgment against the defendant and to the dismiss the suit at the corporation's cost. Although the nullity rule set forth by the court in Remole remains valid law, its application to the facts in the instant cause by the appellate court is misplaced. We note that the nullity—or voidness— rule is well established in our courts. See, e.g., Pratt-Holdampf v. Trinity Medical Center, 338 Ill.App.3d 1079, 1083, 273 Ill. Dec. 708, 789 N.E.2d 882 (2003); Ratcliffe v. Apantaku, 318 Ill.App.3d 621, 626, 252 Ill.Dec. 305, 742 N.E.2d 843 (2000); Berg v. Mid-America Industrial, Inc., 293 Ill. App.3d 731, 737, 228 Ill.Dec. 1, 688 N.E.2d 699 (1997); City of Chicago v. Witvoet, 12 Ill.App.3d 654, 655-56, 299 N.E.2d 128 (1973). This rule is grounded in the fact that there are risks to individual clients and to the integrity of the legal system inherent in representation by an unlicensed person: The purpose of the nullity rule is    to protect litigants against the mistakes of the ignorant and the schemes of the unscrupulous and to protect the court itself in the administration of its proceedings from those lacking requisite skills. Janiczek v. Dover Management Co., 134 Ill.App.3d 543, 546, 89 Ill. Dec. 673, 481 N.E.2d 25 (1985), citing City of Chicago v. Witvoet, 12 Ill.App.3d 654, 655-56, 299 N.E.2d 128. Accordingly, it is well settled that the effect of a person's unauthorized practice on behalf of a party is to require dismissal of the cause or to treat the particular actions taken by the representative as a nullity. Pratt-Holdampf, 338 Ill.App.3d at 1083, 273 Ill.Dec. 708, 789 N.E.2d 882; see also People v. Dunson, 316 Ill.App.3d 760, 764, 250 Ill. Dec. 77, 737 N.E.2d 699 (2000); Blue v. People, 223 Ill.App.3d 594, 596, 165 Ill.Dec. 894, 585 N.E.2d 625 (1992). In the instant cause, the appellate court erroneously held that the circumstances at bar were similar to the facts presented in Remole, and, therefore the nullity rule likewise applied in this matter. The appellate majority reasoned as follows: [T]he firm was not properly registered with the supreme court when it obtained the attorney fees award. Like the plaintiff in Remole, it performed legal services without authorization and in violation of the law. The general rule of dismissal applies under such circumstances. Accordingly, we agree with the trial court's declaration that the order was void ab initio.  344 Ill.App.3d at 1072, 280 Ill.Dec. 9, 801 N.E.2d 954. We reiterate our holding that duly licensed attorneys who practice with a law firm that lacks Rule 721(c) registration do not, by virtue of the unregistered nature of the law firm, engage in the unauthorized practice of law. In the instant matter, there is no dispute that the attorney representing Ford Credit throughout these proceedings was duly licensed to practice law and in good standing with this court. Therefore, it was error for the lower courts to hold that the nullity rule applied to void the award of attorney fees to Ford Credit for the legal services rendered by this attorney. [2] The goals of protecting the public and ensuring the integrity of the court system which underpin the invocation of the nullity rule were not implicated by the facts in the instant cause. In sum, we hold that the appellate court erred in affirming the judgment of the circuit court that the failure of the law firms representing Ford Credit in this litigation to register as professional service corporation law firms with this court pursuant to Rule 721(c) rendered the legal services provided by the firms' attorneys the unauthorized practice of law. As stated, there is a fundamental difference between an unlicensed individual engaging in the practice of law and a duly licensed lawyer who practices with an unregistered firm. A duly licensed attorney who belongs to a firm that lacks Rule 721(c) registration does not, by virtue of the unregistered nature of the firm, engage in the unauthorized practice of law. Because Ford Credit was at all times represented by a duly licensed attorney in good standing with this court, the judgment award granting Ford Credit statutory attorney fees should not have been vacated as void.",analysis
+340,1603191,1,1,"When evaluating the assessment of costs, our review is for abuse of discretion. Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229, 238 (Iowa 1996); Dodd v. Fleetguard, Inc., 759 N.W.2d 133, 137 (Iowa Ct.App.2008). An abuse of discretion occurs when a court's exercise of discretion is clearly erroneous. IBP, Inc. v. Burress, 779 N.W.2d 210, 214 (Iowa 2010). In determining whether an abuse of discretion exists with regard to the assessment of costs, we consider the relative success of the parties on the merits. Robbennolt, 555 N.W.2d at 238. Further supporting the standard that success controls the assessment of costs is Iowa Rule of Appellate Procedure 6.1207, which provides that [a]ll appellate fees and costs shall be taxed to the unsuccessful party, unless otherwise ordered by the appropriate appellate court. Rule 6.1207 is consistent with the rules governing assessment of costs in actions before the district courts, as Iowa Code section 625.1 (2007) also provides that [c]osts shall be recovered by the successful against the losing party.",standard of review
+341,2590319,1,3,"[¶5] Our standard of review in cases involving termination of parental rights has been stated as follows: Due to the tension between the fundamental liberty of familial association and the compelling state interest in protecting the welfare of children, application of statutes for termination of parental rights is a matter for strict scrutiny. As part of this strict scrutiny standard, a case for termination of parental rights must be established by clear and convincing evidence. Clear and convincing evidence is that kind of proof that would persuade a trier of fact that the truth of the contention is highly probable. Rigorous though this standard may be, we apply our traditional principles of evidentiary review when a party challenges the sufficiency of the evidence supporting termination. Thus, we examine the evidence in the light most favorable to the party prevailing below, assuming all favorable evidence to be true while discounting conflicting evidence presented by the unsuccessful party. MN v. Department of Family Servs., 2003 WY 135, ¶ 5, 78 P.3d 232, 234 (Wyo. 2003) (internal citations omitted).",standard of review
+342,4515832,1,4,"[1] An appellate court may, at its option, notice plain error. 1 [2] We review the trial court’s decision on a motion to withdraw as counsel for an abuse of discretion. 2 [3] Trial courts have broad discretion with respect to sanctions involving discovery procedures, and their rulings thereon will not be reversed in the absence of an abuse of discretion. 3 [4] The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 4 [5] Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. 5 When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. 6 With regard to the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test 1 Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018). 2 State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013). 3 State v. Hatfield, 304 Neb. 66, 933 N.W.2d 78 (2019). 4 In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019). 5 State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019). 6 Id. - 258 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SIERRA Cite as 305 Neb. 249 articulated in Strickland v. Washington, 7 an appellate court reviews such legal determinations independently of the lower court’s decision. 8 [6] In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. 9",standard of review
+343,1711397,1,2,"¶ 9. The Court of Appeals held that the trial court did not have authority to grant the out-of-time appeal because a request to reopen the time to appeal is to be filed with the trial court within 180 days of entry of the judgment or order or within seven days of receipt of such notice [of entry of judgment], whichever is earlier. Deloach, 856 So.2d at 389, citing M.R.A.P. 4(h). ¶ 10. The Court of Appeals also held that there was a second bar to its jurisdiction. The trial court granted Deloach thirty days to perfect the out-of-time appeal by an order signed by the trial judge on July 19, 2001. The notice of appeal was not filed until August 24, 2001. The Court of Appeals stated: We do not understand how the attorney knew she was appointed yet did not know the out-of-time appeal had been granted since the two orders were signed on the same day and filed the same day. Even if the trial judge had authority to grant an out-of-time appeal, the deadline for perfecting the appeal had passed when the notice of appeal was filed. 856 So.2d at 389. ¶ 11. In a recent opinion by this Court, it was recognized that: Whether a trial court has authority to remedy the failure to file timely a notice after the time set by the rules for filing a notice of appeal had expired is doubtful. Coleman v. State, 804 So.2d 1032, 1037 (Miss.2002). However, we may grant an out-of-time appeal `where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.' Jones v. State, 355 So.2d 89, 90 (Miss.1978). We may suspend Rules 2 and 4 `when justice demands' to allow an out-of-time appeal in criminal cases. Fair v. State, 571 So.2d 965, 966 (Miss.1990). McGruder v. State, 886 So.2d 1, 2 (Miss.2003). ¶ 12. In McGruder, this Court found that McGruder had done nothing to delay the perfection of his appeal. Id. at 2. His trial counsel was untimely in the filing of McGruder's Motion for JNOV. Once his new counsel was appointed, all post-trial filings and the perfection of the appeal were timely. This Court found that justice demanded that the out-of-time appeal filed by McGruder's new counsel be considered on the merits. Id. (citing Fair, 571 So.2d at 967). We reversed the Court of Appeals' judgment to dismiss as untimely and remanded the case for a decision on the merits. Id. ¶ 13. In the instant case, the record is not clear as to why no formal appeal was ever filed after Deloach's May 20, 1997, conviction. The trial court's July 20, 2003, order, which granted the out-of-time appeal, gives some insight that there may have been an agreement to drop Deloach's remaining charges if Deloach agreed not to appeal the Count I conviction. ¶ 14. What is clear from the record is that the same day Deloach's conviction and sentence were entered, he filed an affidavit of indigency stating that he was unable to pay the costs of the Supreme Court Clerk and that he wanted to prosecute an appeal to the Supreme Court of the State of Mississippi, of said conviction.... The motions Deloach filed in this Court seeking the appointment of appellate counsel and the status of his appeal further indicate his desire for an appeal. These facts, coupled with the trial court's correct finding that no in-court waiver of appeal had been made, are enough to determine from the record that Deloach was not at fault for failing to file a formal notice of appeal from his May 20, 1997, conviction. ¶ 15. The Court of Appeals was not wrong in its analysis of this case under M.R.A.P. 4(h). However, this Court, as well as the Court of Appeals, may suspend the requirements or provisions of any of these rules in a particular case ... on its own motion and order proceedings in accordance with its direction; provided, however, in civil cases the time for taking an appeal as provided in Rules 4 and 5 may not be extended. M.R.A.P. 2(c) (emphasis added). This case involves a direct appeal in a criminal case, and we are not precluded from extending the time for a direct appeal. ¶ 16. In light of this Court's previous ruling in McGruder, and the extraordinary circumstances encountered by Deloach, we hold that M.R.A.P. 2 and 4 are suspended in this case to allow Deloach an out-of-time appeal.",analysis
+344,1293038,1,1,"Plaintiff was shot and seriously wounded during an armed burglary at plaintiff's home. He filed an action against the state alleging that the state was liable to him by reason of negligent supervision of the burglar, who was on parole. The state moved to dismiss on various grounds. The trial court granted the motion to dismiss and a divided court of appeals affirmed on the ground that plaintiff had failed to file a claim against the state within the twelvemonth period prescribed by A.R.S. § 12-821. We granted review pursuant to Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. and have jurisdiction pursuant to Ariz. Const. art 6, § 5(3).",jurisdiction
+345,4378545,2,1,"“The existence of jurisdiction is a question of law that this court reviews de novo under the right/wrong standard.” Bailey v. Duvauchelle, 135 Hawaiʻi 482, 488, 353 P.3d 1024, 1030 (2015) (brackets omitted) (quoting Amantiad v. Odum, 90 Hawaiʻi 152, 158, 977 P.2d 160, 166 (1999)).",jurisdiction
+346,2553651,1,3,"The defendant was convicted on three counts of AFSA, stemming from his sexual penetration of A.G. on the night she returned from North Conway. To convict the defendant of these offenses as charged, the jury had to find that the defendant was a member of the same household as the victim. See RSA 632-A:2, I(j)(1) (A person is guilty of the felony of aggravated felonious sexual assault if such person engages in sexual penetration with another person ... [when] ... the victim is 13 years of age or older and under 16 years of age and ... the actor is a member of the same household as the victim.). At the close of the State's evidence, the defendant moved to dismiss the AFSA charges on the grounds that there was insufficient evidence that he was a member of A.G.'s household. The trial court denied the motion. On appeal, the defendant asserts that the trial court's ruling was legally erroneous. To successfully challenge sufficiency of the evidence, a defendant must prove that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Evans, 150 N.H. 416, 424, 839 A.2d 8 (2003). The term household member is not defined in the statute. The trial court did not define household member for the jury, but instead instructed that the term was self-explanatory. We have previously declined to define the term. See State v. Hearns, 151 N.H. 226, 855 A.2d 549 (2004); State v. Paglierani, 139 N.H. 37, 648 A.2d 209 (1994). In Hearns, we upheld the use of a jury instruction that stated: A household is a group of persons living in the same residence maintaining a single economic unit. Household members include any person who is a member of and participates and contributes to the maintenance of the household. Such a definition may include children who are under parental-type control of a person other than a parent. Such a definition would not include a [boarder] or a tenant in a rooming house. Hearns, 151 N.H. at 234-35, 855 A.2d 549 (quotation omitted). The dictionary provides this definition of household: those who dwell under the same roof and compose a family: a domestic establishment; specif: a social unit comprised of those living together in the same dwelling place. Webster's Third New International Dictionary 1096 (unabridged ed. 2002). Having reviewed the record, we conclude that there was ample evidence that at the relevant time the defendant was a member of the same household as A.G. He participated in and contributed to the maintenance of the household. Both he and his son spent every night at A.G.'s home. The defendant was in an intimate relationship with A.G.'s mother, Lisa, and occasionally drove her to work. He cooked or helped with the cooking in the evening. The defendant's son slept in A.G.'s room, in the same bed as her brother. The defendant took the two boys to day camp in the mornings while Lisa was at work. Lisa testified that he was basically taking care of the kids. He told Lisa that he would pay half the purchase price of a necklace for A.G. He took A.G. on an outing to Hampton Beach. The defendant told Detective Riel that he was trying to be a father figure to A.G. and had given her gifts because her father did not treat her well. In arguing to the contrary, the defendant focuses on the facts that he and Lisa concealed the nature of their relationship from the children and that A.G. was absent from the home for most of the time that the defendant was staying there. We are not persuaded. The defendant and his son were nightly residents, not occasional visitors, at the Cypress Street apartment. Further, as we recognized in Paglierani, the short duration of a victim's presence in the household is not dispositive. Paglierani, 139 N.H. at 39, 648 A.2d 209. The victim in that case was a fifteen-year-old ward of the state who attended a boarding school and spent the Thanksgiving and Christmas holidays in the defendant's home. Id. at 38, 648 A.2d 209. We concluded that a reasonable jury could have found that the victim was a member of the defendant's household because she was subject to parental-like control while with the defendant's family. Id. at 39, 648 A.2d 209. In sum, we hold that there was sufficient evidence to support a conclusion, beyond a reasonable doubt, that the defendant and the victim were members of the same household. Affirmed.",sufficiency of the evidence
+347,2755001,1,1,"¶1 On petition for writ of extraordinary relief, petitioners Lana Mawhinney, Christine McClory, and James Whitehead (collectively, Petitioners) ask us to order the City of Draper (City) to certify their petition for referendum. Specifically, they seek to refer Resolution No. TRSSD 14-02 (Resolution) to the voters of the Traverse Ridge Special Service District (District) in the November 2014 general election. The Resolution, enacted on June 24, 2014, levies a tax on the property within the District. MAWHINNEY v. DRAPER CITY Opinion of the Court ¶2 The City refused to certify the petition, asserting that the tax levy was a nonreferable administrative action and that the subjurisdictional referendum statute, pursuant to which the petitioners sought the referendum, unconstitutionally limits the number of Draper City residents who are entitled to vote on the issue. We grant Petitioners’ requested relief because the Resolution was improperly rejected by the City. The Resolution, which levies a tax, is properly referable to the voters because it is legislative in nature. And we are unpersuaded by the City’s constitutional challenge to the subjurisdictional referendum statute.",introduction
+348,4557595,1,5,"For the foregoing reasons, we affirm the judgment of the district court. Affirmed. 61 See Gartner, supra note 43. 62 See Garza, supra note 43.",conclusion
+349,2049141,1,7,"For the reasons set forth in this opinion, we reverse and vacate the Superior Court's grants of summary judgment in favor of David. We remand this case to the Superior Court. Chief Justice SUTTELL did not participate. Justice INDEGLIA took no part in the consideration or decision of this appeal.",conclusion
+350,2621417,1,2,"Respondent Richardson Construction, Inc., was a general contractor on a project for the White Pine County School District. Richardson subcontracted with Theobald to provide labor, materials, equipment, and other services for the project. The subcontract provided that [t]he Final payment of retention will be paid to Subcontractor 30 days after receipt of retention from the Owner. During construction, additional costs were allegedly incurred as a result of extras, changes, delays, failures to provide access, and changes in the scope of the project. As a result, White Pine refused to pay Richardson the final payment and retention, and Richardson refused to pay Theobald until White Pine paid Richardson. Theobald sued Richardson in April 1995 for breach of contract and unjust enrichment. Richardson, however, chose to arbitrate its dispute with White Pine and moved for a stay of litigation with Theobald while it pursued the arbitration. Richardson argued that the first lawsuit was premature because it had thirty days after receiving the final payment and retention to pay Theobald, it had not received payment, and it would pay Theobald after it had received payment from White Pine. Theobald opposed the motion, arguing that the money Richardson owed under the contract was immediately due and payable. The district court denied Richardson's motion in March 1997. Nevertheless, instead of pursuing its claims, Theobald cooperated with Richardson in Richardson's arbitration with White Pine, providing documentation regarding charges owed to Theobald. Theobald then waited for the arbitration between Richardson and White Pine to be resolved so that Richardson could pay Theobald. Theobald and Richardson did not agree to extend the time for Theobald to bring the action to trial under NRCP 41(e). Richardson and White Pine settled in December 1997. In February 2002, Theobald became aware of the settlement and requested payment from Richardson, which refused to pay. In March 2003, nearly eight years after it filed its complaint, Theobald moved for summary judgment against Richardson. Richardson moved to dismiss the lawsuit based on NRCP 41(e) for failure to prosecute. As the lawsuit had not been prosecuted within NRCP 41(e)'s five-year requirement, the district court dismissed the lawsuit. The district court did not indicate whether it dismissed the lawsuit with or without prejudice. [2] Theobald did not appeal or ask for modification of that order. Instead, it filed a second complaint against Richardson in July 2003. Theobald again alleged breach of contract and unjust enrichment. Richardson moved to dismiss, arguing that Theobald was barred from further litigation because dismissal of the first lawsuit was not without prejudice and the statute of limitations had run. In response, Theobald cited Home Savings and argued that the previous district court abused its discretion when it did not dismiss the first lawsuit without prejudice because Richardson led Theobald to believe that it would be paid when Richardson was paid. Contrary to its earlier argument opposing Richardson's motion to stay the district court proceedings, Theobald also argued that Richardson's obligation to pay Theobald did not arise until White Pine paid Richardson. The district court dismissed the second complaint based on both NRCP 41(e) and the statute of limitations. Theobald appeals, arguing that, under Home Savings, a district court may consider whether the previous district court abused its discretion when it dismissed an earlier lawsuit without mentioning prejudice, and may refuse to apply the doctrine of res judicata if it determines that the earlier lawsuit should have been dismissed without prejudice.",facts
+351,2785779,1,6,"The majority's approval of the exercise of judgment instructions given in these cases rests on the belief that it is supported in Washington law and has not been shown to be incorrect or harmful. Majority at 3. I disagree with both of these propositions. This type of instruction has long been criticized, including by this court, and efforts to temper its language have not remedied its core deficiencies. I will first address the history of the exercise of judgment instruction, which demonstrates that it is argumentative and confusing, and then turn to why this court should exercise its authority to reject it. The Exercise of Judgment Instruction Is Rooted in the Discredited Error in Judgment Instruction and Has Not Been Broadly Endorsed in Washington The exercise of judgment instn1ction is a relic of a discredited theory of liability, one that sought to hold a doctor to a lesser duty than any other person. It is a refinement of the error in judgment instruction, which required a jury to consider whether a health care provider exercised judgment in good faith. Dinner v. Thorpe, 54 Wn.2d 90, 97-98, 338 P.2d 137 (1959). In our earliest -2- Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent) review of the error in judgment instruction, we rejected the good faith language, finding it misleading in suggesting good faith could absolve a physician of liability, irrespective of negligence. Id. at 98. We considered a different iteration of the error in judgment instruction, minus the good faith language, in Samuelson v. Freeman, 75 Wn.2d 894, 454 P.2d 406 (1969). The instruction advised the jury that if, having properly informed himself [of a patient's condition], [the physician] reache[d] a wrong conclusion, he is not liable for errors in judgment. Id. at 896. We did not rule on whether the instruction standing alone was an incorrect statement of law; instead, we held that when given alongside several other instructions on the subject of the standards of care and skill required of medical practitioners, id. at 896, taken as a whole the instructions were argumentative, overemphasized the physician's immunities, and markedly diminished his responsibilities. Id. at 897. Ordering a new trial, we cautioned against giving supplemental instructions that so emphasized one party's position over the other's as to be palpably unfair. !d. We noted this problem was unlikely to recur on remand in light of newly published pattern instructions that defined the standard of care with fairness and reasonable brevity. Id. Significantly, the pattern instructions at the time did not include an error of judgment instruction, which was added in 1990. 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL: 1994 POCKET PART 105.08 cmt. at 106-08 (3d ed. 1989) (WPI) (explaining that while the main volume -3- Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent) acknowledges the existence of the instruction but offers no recommended language, the committee in the 1990 pocket part first offered pattern language). 1 We returned to the error in judgment instruction in Miller III, 91 Wn.2d 155.2 There we considered language instructing the jury that a physician is not liable for an honest error of judgment where he or she exercised the requisite degree of care and skill in arriving at the judgment. Id. at 160. We observed that [c]ertainly Dr. Kennedy was called upon to exercise his professional judgment in performing the delicate surgery of a kidney biopsy and held the trial court did not err in giving the instruction. !d. We later disapproved of the honest error language to the extent that it 'muddle[d] the jury's understanding of the burden imposed upon a plaintiff in a malpractice action' by suggesting the plaintiff must prove a 'dishonest mistake' or 'bad faith error.' Watson v. Hockett, 107 Wn.2d 158, 165, 727 P.2d 669 (1986) (quoting Teh Len Chu v. Fairfax Emergency Med. Assocs., 223 Va. 383, 386, 290 S.E.2d 820 (1982)). Absent the offending language, we noted, such an instruction could be given in a proper case, but it must 1 Today the error of judgment instruction appears as WPI 105.08, see 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL (6th ed. 2012). The pattern instructions do not carry the force or weight of decisional law and indeed are frequently amended or revised in response to decisiona11aw or statute. See id. cmt. at 612 (explaining that the error of judgment instruction was reformulated in response to decisiona11aw); see also State v. Austin, 59 Wn. App. 186, 194 n.4, 796 P.2d 746 (1990) (encouraging the committee on jury instructions to adopt language reflecting a chan~e in a governing statute). Miller I is the Court of Appeals decision Miller v. Kennedy, 11 Wn. App. 272, 522 P.2d 852 (1974), reversing the trial court's decision. Miller II is our per curiam affirmation of the Court of Appeals decision, Miller v. Kennedy, 85 Wn.2d 151, 530 P.3d 334 (1975). Miller III is our review of the trial court's decision following the remand from the Court of Appeals. -4- Fergen, et al. v. Sestero, M.D., et al., 88819-1 (Stephens, J. Dissent) be given with caution. Id. In particular, it should not be given unless the evidence shows the physician exercised reasonable care and was in fact confronted with a choice among competing therapeutic techniques or among medical diagnoses. Id. In Christensen v. Munsen, 123 Wn.2d 234, 249, 867 P.2d 626 (1994), we rejected a claim that the error of judgment instruction constituted a comment on the evidence but again reiterated that the instruction applies only in the limited circumstance when a health care provider chooses among acceptable alternatives. We also noted that it supplements the standard of care and can only be given with a proper standard of care instruction. Id. As this brief overview makes clear, our precedent can hardly be described as a ringing endorsement of the error or exercise of judgment instruction. In just a handful of cases, we have examined the most argumentative aspects of earlier versions of the instruction, with the result that the instruction has been tweaked, whittled, revised, and prodded into its current form. We have not examined any version of this instruction in 20 years and have never directly considered the exercise of judgment instruction at issue in these cases. While we noted the seeming acceptance of the error in judgment principle in 1986, Watson, 107 Wn.2d at 165, we have not had an opportunity to consider cases since then that show a trend toward rejecting it. See, e.g., Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320, 331 (2000) (reversing West Virginia precedent and collecting -5- Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent) cases from other states to show that courts increasingly are veering away from the use of these instructions based on the potential for jury confusion). 3 I share the concern expressed by our Court of Appeals, which in 2001 commented: If the Supreme Court chooses to revisit the line of cases that bind us, it seems fair to add that we see no independent reason for giving a separate error of judgment instruction. It appears to us that the standard instructions are adequate to allow argument on the topic without undue emphasis or risk of confusion. In this sense, the error of judgment instruction adds little while risking unnecessary confusion. Ezell v. Hutson, 105 Wn. App. 485, 491, 20 P.3d 975 (2001); see also Fergen v. Sestero, 174 Wn. App. 393, 398, 298 P.3d 782 (2013) (deferring to this court the task of redefining when the instruction should apply, if at all). For the reasons more fully explained below, we should take this opportunity to disapprove of gtvmg a supplemental exercise of judgment instruction in medical negligence cases. The Exercise ofJudgment Instruction Is Confusing, Unfair, and Inconsistent with the Modern Practice of Giving Only Basic, Neutral Instructions Jurors have a difficult job. We expect them to understand and apply legal principles served up to them in a brief formal incantation. Joseph H. King, Jr., Reconciling The Exercise of Judgment and the Objective Standard of Care in Medical Malpractice, 52 OKLA. L. REv. 49, 64 (1999). The plight of jurors is 3 The instruction at issue in Pleasants included the term honest error, and many of the cases cited in the opinion rejected instructions with the type of good faith language this court has criticized. See 543 S.E.2d at 329-31 & n.27. -6- Fergen, eta!. v. Sestero, MD., eta!., 88819-1 (Stephens, J. Dissent) even worse than one writer's analogy to a law school class in which the entire course consisted of a verbatim reading of the rules followed by an examination. As another writer states, '[i]t is all too easy for those of us who are lawyers or judges to forget what the world looked like before we entered law school.' !d. at 64-65 (alteration in original) (footnotes omitted). Appreciating the difficulties jurors face, the art of instructing the jury should focus on identifying a basic, neutral set of instructions. Supplemental instructions generally cut against this goal. In many areas of the law this court has rejected instructions-some quoting verbatim from court opinions-that emphasized one party's point of view. See, e.g., Turner v. City of Tacoma, 72 Wn.2d 1029, 1034, 435 P.2d 927 (1967) (describing parties' competing supplemental instructions as slanted and stating [t]hat we may have used certain language in an opinion does not mean that it can be properly incorporated into a jury instruction). We have long ascribed to the philosophy that when it comes to instructing a jury, less is more. Laudermilk v. Carpenter, 78 Wn.2d 92, 100,457 P.2d 1004 (1969). As the court inLaudermilkexplained: It has, for some years, been the policy of our Washington system of jurisprudence, in regard to the instruction of juries, to avoid instructions which emphasize certain aspects of the case and which might subject the trial judge to the charge of commenting on the evidence, and also, to avoid slanted instructions, formula instructions, or any instruction other than those which enunciate the basic and essential elements of the legal rules necessary for a jury to reach a verdict. Under this theory, counsel has been free, and, indeed, has the responsibility, to argue to the jury, the refinements of these rules within the factual framework of his case. Detailed instructions, such as those proposed here, though once common, -7- Fergen, et al. v. Sestero, M.D., et al., 88819-1 (Stephens, J. Dissent) are now deemed to be instructions which point up, underline, or buttress portions of counsel's argument. Id. at 100-01. In every case to have considered an error of judgment instruction, this court has recognized this type of instruction serves to emphasize the defendant's theory of the case. It has been variously described as unnecessary, misleading, confusing, and argumentative. At best, the instruction is unhelpful, simply restating the standard of care instruction, but from the defendant's perspective. 4 At worst, it misdirects a jury away from the question of reasonable care to focus attention on whether the health care provider made a choice. It tempts the jury into viewing professional or clinical judgment as a free-standing consideration in the question before it, akin to an affirmative defense. 5 And insofar as [t]he exercise of professional judgment is an inherent part of the care and skill involved in the practice of medicine, Miller, 91 Wn.2d at 160, the instruction may lead juries to conclude a defensible choice is synonymous with a nonnegligent choice. 4 We have recognized that the instruction is not necessary for a defendant in a civil malpractice case to argue a defense theory; it is at most a supplementary instruction, and a trial judge does not commit error by refusing to give it. See Seattle W Indus., Inc. v. David A. Mowat Co., 110 Wn.2d 1, 9, 750 P.2d 245 (1988); 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CNIL 105.07 cmt. at 611 (6th ed. 2012). The majority acknowledges this, majority at 14 n.4, but at the same time suggests a defendant may be entitled to the exercise of judgment instruction, id. at 17. The problem is, the majority never tells us when this will be the case. 5 Underscoring this proposition is amici Washington State Medical Association (WSMA) and Washington State Hospital Association's (WSHA) insistence that the exercise of judgment is a defense. Br. of Amici Curiae WSMA & WSHA at 14. An affirmative defense admits the elements of the claim but offers an excuse or justification for the act. -8- Fergen, eta!. v. Sestero, M.D., eta!., 88819-1 (Stephens, J. Dissent) The cases before us demonstrate how this instruction can misdirect a jury's consideration of a plaintiffs claim. The claims in these cases were not premised on negligence in choosing diagnosis (or treatment) A over diagnosis (or treatment) B. The plaintiffs claimed the physicians fell below a reasonable standard of care in failing to do steps 1, 2, 3, 4, and 5 before choosing A over B. But the exercise of judgment instruction bolstered Dr. Sestero 's argument that he was not negligent in choosing to disregard a diagnosis of cancer and Appukuttan's medical team's argument that it was not negligent in choosing to rule out compartment syndrome. For example, in closing argument, Dr. Sestero's counsel told the jury, I want to talk to you a little bit about standard of care and judgment. ... [Plaintiffs experts] are willing to come and criticize Dr. Sestero for not considering this nub in the ankle to be a cancer. 12 Verbatim Report of Proceedings (VRP) (Fergen) at 2197-98. Counsel discussed the exercise of judgment instruction: And that gets to this issue of judgment, the judgment instruction, I believe its Instruction Number 18 that Judge Sypolt has given you. The law is that a physician is not liable for an error in judgment in making a diagnosis if, in arriving at that judgment, he followed an appropriate standard of care. So in the judgments that Dr. Sestero did, you have to reflect on this: Did he blow the patient off according to the contemporaneous record? Not at all. !d. at 2203. On rebuttal, Fergen's counsel attempted to push back against this focus on a choice between diagnoses: I'm not asking you to hold Dr. Sestero accountable for discovering Ewing sarcoma. That's never been a part of this case, and they have tried very -9- Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent) hard to leave you with that impression. We're not saying that. We're just saying he should have done more than he did. Id. at 2217. In the end, the jury was left to sort out the parties' disagreement by reading the instructions, which included a particular instruction focusing on the physician's selection of one of two or more alternative diagnoses. Clerk's Papers at 3198 (Instruction 18). Similarly, in Appukuttan' s case, defense counsel emphasized the exercise of judgment instruction, arguing: This instruction number 10, I want you to review that too as well because there are two different diagnoses. There was all over the records you'll see the diagnosis of hematoma; it's been talked about at length. And what this says, if there are two reasonable ways to pursue something, the judge has instructed you, it's in the instructions, a physician is not liable for pursuing one of those or a treatment option, even if you believe in hindsight that the patient had compartment syndrome at the time, as long as it is reasonable, then he is not liable. VRP (Appukuttan) (Dec. 3, 2012) at 72. To be clear, I do not fault counsel for making arguments that focused on the defense theory of the case. It was their absolute right, indeed obligation, to do so. But the slanted focus of the exercise of judgment instruction gave the defense theory an unfair advantage, essentially stamping it with the judge's approval. In addition to being slanted and argumentative, the exercise of judgment instruction potentially confuses the jury with respect to the factual issues it must resolve. Based on the instruction, a jury could believe it does not need to resolve disputes over the standard of care so long as the evidence shows the health care providers chose to follow one standard over another. After all, there is no division -10- . Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent) in the presentation of the evidence or in the closing arguments between disputes over the standard of care and questions of professional judgment. So, if the experts disagree over what the health care provider should have done, and the evidence shows the provider chose option A over option B, the instruction suggests there is no liability. Of course, we can never know exactly how the exercise of judgment instruction affected deliberations in a particular case. The jury's thought process inheres in its verdict. But, it is important to recognize the risk of confusion this instruction presents in any medical negligence case, including these. The majority cannot elucidate a workable rule for a trial judge to decide when the risk of giving this instruction is too great. The majority acknowledges that we have said the instruction must be given 'with caution.' Majority at 10 (quoting Watson, 107 Wn.2d at 165). It explains that this court has attempted to limit the introduction of the instruction to situations where the doctor uses judgment to choose between alternative treatments or diagnoses. Id. (citing Miller III, 91 Wn.2d at 160). But, at the same time the majority characterizes this requirement as one that must be broadly construed, suggesting it is a low bar that must be satisfied for the court to hold that a physician made a choice between treatments or diagnoses. !d. at 1213. Nothing more must be shown than that the health care provider was engaged in an 'exercise of professional judgment' in treatment or diagnosis. !d. at 14 (quoting Miller III, 91 Wn.2d at 160). The Miller III court acknowledged that the exercise of professional judgment is simply a physician practicing medicine. 91 -11- Fergen, eta!. v. Sestero, M.D., eta!., 88819-1 (Stephens, J. Dissent) Wn.2d at 160 (The exercise of professional judgment is an inherent part of the care and skill involved in the practice of medicine.). If there is a backstop in the majority opinion to giving this instruction, I cannot divine it. 6 In fairness to the majority, its inability to articulate a workable rule is merely symptomatic of the basic infirmity of the exercise of judgment instruction. Perhaps the only saving grace for trial judges is the standard of review. While we have not found an abuse of discretion where a trial court gave the instruction, neither have we found reversible error where the trial court refused to do so. See Watson, 107 Wn.2d at 167. I believe the only way to achieve consistency is to disapprove of this instruction entirely. The Court Should Categorically Disapprove of the Exercise ofJudgment Instruction Preliminarily, I am not convinced that our authority to reject the giving of an error or exercise of judgment instruction depends on meeting the incorrect and harmful test. In re Right to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970) (announcing the test for overruling stare decisis). Standards for instructing juries evolve over time, and our precedent cannot be characterized as broadly endorsing this instruction. No one contends that the exercise of judgment instruction is a misstatement of law or that the law of medical negligence itself 6 The majority suggests the instruction would be inappropriate in a challenge that focuses on the inadequate skills of the physician. Majority at 14. If this narrow subset of cases is the only category in which the instruction would not apply, I still cannot agree that the instruction can be given in a manner faithful to our directive that it be applied with caution. -12- Fergen, et al. v. Sestero, M.D., et al., 88819-1 (Stephens, J. Dissent) must be changed. Rather, we are asked to consider the risks attendant to this instruction and to provide guidance to lower courts on how to fairly instruct juries in medical negligence cases. Even if we must overrule precedent in order to reject this instruction, it is not difficult to meet the incorrect and harmful test here. This court in Stranger Creek emphasized that precedent is not an absolute impediment to change and that stability should not be confused with perpetuity. 77 Wn.2d at 653. As explained, the exercise of judgment instruction is slanted, argumentative, and confusing to juries. Our precedent has consisted mainly of partial rejections of the worst language in earlier versions of the instruction. Since our last consideration of the instruction 20 years ago, several courts have reconsidered its value and have veered away from its use. Additionally, our legislature has framed the elements of medical negligence in RCW 7. 70.030 and .040, providing even stronger reason for following the modem practice of eschewing supplemental instructions in favor of simply outlining the statutory elements.7 To the extent that prior cases have refused to find error in either the giving or the refusal to give an exercise of judgment instruction, the existing precedent merely perpetuates an inconsistent application of the law at the trial court level and provides absolutely no guidance. 7 I do not agree with Appukuttan's suggestion that RCW 7.70.030 and .040 preempt WPI 105.08 or that the instruction is inconsistent with the statute. See Br. of Appellant (Appukuttan) at 11-18. My point is simply that the codification of the elements of a medical negligence claim reinforces the value of limiting jury instructions to those that provide the legal framework for the jury's deliberations. See Laudermilk, 78 Wn.2d at 100 (cautioning against giving instructions other than those which enunciate the basic and essential elements of the legal rules necessary for a jury to reach a verdict). -13- Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent) Our precedent is harmful for many of the same reasons, but also for the fact that is has resulted in the creation of a pattern instruction that we should expect will be requested in most medical negligence cases. Our admonition that the instruction should be given with caution has proved to be futile and will be even less effective in light of the low bar set by the majority. Majority at 12-13. Trial judges will rightly complain that while we continue to wring our hands about the risks of giving an exercise of judgment instruction, we offer little help in deciding when it should and should not be given. Finally, I believe it shows a harmful effect of this type of instruction that it serves to bolster one party's theory of the case. We are told that the instruction is almost always associated with a defense verdict. See Reply Br. of Appellant (Appukuttan) at 10 (arguing the instruction is tantamount to directing a defense verdict). While we do not have the benefit of a scientific study measuring the effects of the error of judgment instruction on deliberating juries, we should consider the concerns raised in the reported cases in weighing the costs and benefits of continuing to allow this instruction. I believe the time has come to recognize that the risks of misdirecting or confusing the jury outweigh any possible benefit to giving this slanted, argumentative instruction. I would be equally dubious of any instruction that overemphasized the plaintiff's point of view, by 'point[ing] up,' 'underlin[ing],' or 'buttress[ing]' portions of counsel's argument. Laudermilk, 78 Wn.2d at 101. We should send the clear message to trial courts that jury instructions should enunciate the basic legal elements of -14- Fergen, et al. v. Sestero, M.D., et al., 88819-1 (Stephens, J. Dissent) medical malpractice and that WPI 105.08 is not an appropriate supplement to the instructions. The Erroneous Instruction in These Cases Requires Reversal The remaining question is whether the instructions given in these cases created a sufficient risk of prejudice as to require reversal. Fergen and Appukuttan argue for reversal on the ground that the instructions were legally erroneous and unsupported by the evidence. Pet'rs' Suppl. Br. (Fergen) at 19-20; Br. of Appellant (Appukuttan) at 24. Respondents' counsel in Fergen notes that the prejudice recognized in prior versions of the instruction that used terms such as honest error is not present in the current language. Br. ofResp'ts (Fergen) at 4243. Courts that have disapproved of use of an exercise of judgment instruction have separately examined whether giving the instruction in the particular case resulted in reversible error. See Pleasants, 543 S.E.2d at 330-32 & n.27 (finding error harmless in light of other instructions correctly stating the law; collecting similar cases); Yates v. Univ. of W. Va. Bd. of Trs., 209 W. Va. 487, 549 S.E.2d 681, 691-92 & n.19 (2001) (finding reversible error based on reasonable probability the instruction influenced jury's verdict; collecting similar cases). The question is not particularly well developed in this case, as the briefing focuses on the merits of the exercise of judgment instruction itself. Certainly, the erroneous instruction did not stand in isolation; it supplemented proper standard of care -15- Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent) instructions. Thus, if the test is simply whether the instructions as a whole properly advised the jury of the relevant law, they did. On the other hand, as in the Yates case, there is a reasonable probability that the exercise of judgment instruction influenced the jury's verdict insofar as it incorrectly focused attention away from the general negligence standard, and its effect was amplified by several references to it in closing argument. Cf Yates, 549 S.E.2d at 691 & n.18. However, it did not contain the loaded phrase 'reasonable and honest mistake of judgment' that marred the West Virginia instruction. Id. at 690. While the question of prejudice presents a close call in these cases, I believe it is unrealistic to conclude that the error of judgment instruction did not influence the jury verdicts. Looking at the instructions as a whole is not itself a sufficient way to measure prejudice when we are dealing with a supplemental instruction. Such instructions do not undermine the proper statements of the law in the basic instructions, but they overemphasize one party's point of view. Given the risks inherent in this slanted, argumentative instruction, it is reasonably probable that the instruction confused the jury as to the nature of the plaintiffs' claims as well as their burden in proving negligence. As described above, it clearly bolstered defense counsels' arguments in closing that focused on the different possible diagnoses. While we can never know if the jury would have reached the same verdict in the absence of the erroneous instruction, neither can we say it did not -16- Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent) play a significant role in these trials. Accordingly, I believe giving the instruction constituted reversible error and would remand for new trials.",analysis
+352,2135181,1,1,"An at-will employee may generally not recover damages for a discharge, but when the discharge occurs for reasons contrary to public policy we have recognized an exception. In Springer v. Weeks & Leo Co., 475 N.W.2d 630, 632 (Iowa 1991) ( Springer II ), for example, we recognized a right of action for a discharge in retaliation for an employee's filing a workers' compensation claim. K-Products contends that the evidence was insufficient on both the retaliation claim and the plaintiff's damages. The plaintiff submitted evidence of tardy payment of workers' compensation benefits by K-Products, disparaging comments by company officials concerning claims for workers' compensation, and the testimony of several employees that they had been harassed following their filing of workers' compensation claims. Also, evidence that K-Products gave inconsistent reasons for her discharge supported the plaintiff's theory, and there was testimony by the company's doctor that he believed the company was intentionally slowing things down in processing workers' compensation claims. As to the sufficiency of the evidence on damages, there was testimony that the plaintiff was depressed and even attempted suicide following her termination. She had applied for other jobs but was denied employment, presumably because she had been fired at K-Products. We believe that the evidence, when viewed in the light most favorable to the verdict, is sufficient to generate fact issues on the question of retaliation, proximate cause, and damages.",sufficiency of the evidence
+353,1709733,1,1,"Appellant, Penny M. Hartwig, was stuck by two used hypodermic needles that were negligently placed in an ordinary trash receptacle in the medical clinic she was cleaning. Hartwig brought a negligence action against appellees, Oregon Trail Eye Clinic, Dr. Judson C. Martin, and Dr. Thomas J. Roussel (Clinic), seeking to recover damages for, inter alia, the anxiety and mental suffering that resulted from her fear of testing positive for human immunodeficiency virus (HIV) and contracting acquired immunodeficiency syndrome (AIDS) as a result of the Clinic's negligence. The trial court sustained the Clinic's pretrial motion in limine and prohibited Hartwig from presenting evidence to the jury regarding her mental anguish because the court determined that in order to recover damages for mental anguish, Hartwig was required to prove actual exposure to HIV, not merely potential exposure. After the jury returned a $3,000 verdict for Hartwig's physical pain and suffering, Hartwig filed a motion for new trial. Upon denial of the motion for new trial, Hartwig appealed. The question presented by this case is whether a plaintiff who sustains a minimal physical injury, such as a needle stick, when such physical injury was caused by the defendant's negligence, may recover damages for anxiety and mental suffering occasioned by the plaintiff's fear of testing HIV positive and contracting AIDS, absent a showing of actual exposure to blood or body fluid infected with HIV. For the reasons that follow, we answer this question in the affirmative, and we accordingly reverse the order of the trial court denying Hartwig's motion for new trial and remand Hartwig's causes of action for a new trial limited solely to the issue of damages.",introduction
+354,2628764,1,2,"18 RCW 4.20.020 establishes two tiers of beneficiaries in a wrongful death suit. The first tier includes the decedent's wife, husband, state registered domestic partner, child or children, including stepchildren. If there are no first tier beneficiaries, the wrongful death action may be maintained for the benefit of the parents, sisters, or brothers, who may be dependent upon the deceased person for support. RCW 4.20.020. As part of the original code of Washington, the wrongful death statute has always required second tier beneficiaries to demonstrate their dependence on the decedent. Rem.Rev.Stat. §§ 183, 183-1. ¶ 9 The words dependent and support are not defined in the statute. In what appears to be the first case interpreting the meaning of dependency this court wrote: [W]e would not give [the statute] such a strict construction as to say it means wholly dependent, or that the parent must have no means of support or livelihood other than the deceased, such a construction being too harsh and not in accordance with the humane purpose of the act. Nevertheless, there must be some degree of dependency, some substantial dependency, a necessitous want on the part of the parent, and a recognition of that necessity on the part of the child. Bortle v. N. Pac. Ry., 60 Wash. 552, 554, 111 P. 788 (1910). ¶ 10 The need for substantial dependency expressed in Bortle has been further defined as a term having relation to the circumstances of the plaintiff. Mitchell v. Rice, 183 Wash. 402, 407, 48 P.2d 949 (1935) (claimant father was in a difficult financial situation and unable to sustainably support self); Estes v. Schulte, 146 Wash. 688, 689, 264 P. 990 (1928) (claimant sister's only income was from funds contributed by decedent). The dependency must be based on the situation existing at the time of decedent's death and not on promises of future contributions. Grant v. Libby, McNeill & Libby, 145 Wash. 31, 37, 258 P. 842 (1927). The dependency cannot, however, be created on the basis of emotional support alone. See Philippides v. Bernard, 151 Wash.2d 376, 384-85, 88 P.3d 939 (2004) (interpreting RCW 4.24.010 to hold that the legislature's creation of a new support requirement for parents of minors that included emotional support did not abolish the financial support requirements for second tier beneficiaries in RCW 4.20.020). ¶ 11 Under these guidelines, courts have generally allowed claims by beneficiaries who can demonstrate they had a need for the decedent's regular contributions of support. Estes, 146 Wash. at 689, 264 P. 990 (though the amounts varied, decedent provided monetary contributions regularly over a course of years); Mitchell, 183 Wash. at 406-07, 48 P.2d 949 (decedent gave various sums of money at regular intervals to father over the course of the two years preceding his death). Courts have generally disallowed claims where the claimant cannot identify evidence suggesting that they needed or were dependent upon [decedent's] services. Masunaga v. Gapasin, 57 Wash.App. 624, 629, 790 P.2d 171 (1990) (emphasis omitted); see also David C. Cummins, Comment, Damages in Washington Wrongful Death Actions, 35 Wash. L.Rev. 441, 449-50 (1960) (Contributions which may be characterized as casual gifts do not achieve the required status.). ¶ 12 All parties in this case agree that Washington courts have long interpreted dependent for support to require a showing of financial dependence. Resp'ts' Pet. for Review at 14; Suppl. Br. of Resp't at 2. To be certain, a majority of wrongful death suits by second tier beneficiaries involve assessments of the monetary contributions made by decedents to the parties asserting claims. However, until now, no Washington court has explicitly held that financial dependence must be assessed on the basis of monetary contributions alone. We are asked to do so in this case. [1] ¶ 13 When interpreting a statute we look first to the plain language. State v. Armendariz, 160 Wash.2d 106, 110, 156 P.3d 201 (2007). Further, readings well grounded in prior judicial constructions are given weight. Fed. Commc'ns Comm'n v. Pacifica Found., 438 U.S. 726, 740, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). The operative phrase in RCW 4.20.020 is: who may be dependent upon the deceased person for support. (Emphasis added.) The statute does not define dependent or support so we turn to the dictionary. Garrison v. Wash. State Nursing Bd., 87 Wash.2d 195, 196 550 P.2d 7 (1976). [D]ependent is defined as unable to exist, sustain oneself, or act suitably or normally without the assistance or direction of another or others. Webster's Third New International Dictionary 604 (2002). [S]upport is defined as [s]ustenance or maintenance; esp., articles such as food and clothing that allow one to live in the degree of comfort to which one is accustomed and [o]ne or more monetary payments to a current or former family member for the purpose of helping the recipient maintain an acceptable standard of living. Black's Law Dictionary 1577-78 (9th ed.2009). Plainly, the statute does not limit support to monetary contributions. ¶ 14 Cascade argues, however, that our prior construction of RCW 4.20.020 demonstrates that dependent for support must be read to require second tier beneficiaries to provide evidence of monetary contributions from the decedent. Specifically, Cascade argues that [t]he determination that `substantial financial dependence' is limited to the provision of money or income, and not merely services, is a holding well-grounded in Washington law. Resp. to Pet. for Review at 4. ¶ 15 While it is true that in many reported decisions proof of financial support involved monetary contributions, other cases support the view that providing services with an economic value may be considered as part of the dependency analysis under RCW 4.20.020. Mitchell, 183 Wash. at 407, 48 P.2d 949 (substantial dependency should be determined on the basis of the circumstances of the plaintiff); Cook v. Rafferty, 200 Wash. 234, 240, 93 P.2d 376 (1939) ([h]ad [the decedent] lived, she would have continued to contribute to the support of the family and continued to care for her parents[.] ... Mr. and Mrs. Cook suffered a pecuniary loss by reason of her death.). In Cook, the adult daughter lived with her mother and her invalid father; she also contributed to the expenses of the household. Id. at 239, 93 P.2d 376. Though the case does not detail the exact services she provided by caring for her parents, the court suggested that care for invalid parents amounted to a pecuniary loss when the adult child died. Id. at 240, 93 P.2d 376. Similarly, the Court of Appeals in Masunaga also recognized the possibility that parents could be dependent on an adult child's services for support. 57 Wash.App. at 628-29, 790 P.2d 171. [2] ¶ 16 Cascade, though, focuses on our statement in Philippides that `the value parents place on children in our society is no longer associated with the child's ability to provide income to the parents.' Resp. to Pet. for Review at 10 (emphasis in original omitted) (quoting Philippides, 151 Wash.2d at 390, 88 P.3d 939). Cascade reads too much into this language. The quoted language discusses a legislative change to the wrongful death proof requirements for parents of deceased minor children. Proof of financial dependence by parents of deceased adult children was discussed in Philippides only as a way to explain the statutory change distinguishing between the proof required by parents of minor children versus parents of deceased adult children who may qualify as second tier beneficiaries. 151 Wash.2d at 385, 88 P.3d 939 (holding proof of financial dependence was necessary because otherwise, [a]ll parents who claim to be dependent on their children's love would be able to recover under RCW 4.24.010 on an equal footing with the spouse and children of the decedent, the first tier beneficiaries under RCW 4.20.020). ¶ 17 Our holding in Philippides, requiring parents to show something more than emotional dependence on adult children, should not be read to preclude truly dependent parents from claiming beneficiary status. Notably, the jury instruction in this case explicitly excluded the everyday services a child would routinely provide and any emotional support Kristin [sic] may have provided her parents. Br. of Appellant, App., Tab 1 (instruction number 14). This was sufficient to properly guide the jury in considering the value of Kristen's services within the context of the Armantrouts overall financial dependence on her. Kristen Armantrout was able to support her blind, diabetic mother by providing valuable services in addition to a cash contribution. The jury decided that provision of these services, valued at $36,533 per year, combined with Kristen's contribution of her monthly disability check was sufficient to establish the Armantrouts' substantial dependence on Kristen for support. The instruction and the jury's subsequent finding of substantial financial dependence accurately employ the language of RCW 4.20.020 and our holdings in Bortle, Cook, Mitchell, and Philippides. ¶ 18 Reading the statute as Cascade argues, to require proof of a monetary contribution by the decedent, would lead to absurd results and unfair application of the long-standing legislatively created right to an action for wrongful death: parents who received monetary contributions from their adult child to purchase valuable services would qualify as statutory beneficiaries, but parents who received those exact same services from their adult child would not. Nothing in the statute indicates the legislature intended such a level of incongruity. ¶ 19 Cascade also warns that if we allow the value of services to be included in the dependency assessment, parents could qualify as second tier beneficiaries if they could show only that they were dependent on the services the child provided. Suppl. Br. of Resp't at 6. That is incorrect. Philippides clearly holds that parents cannot claim dependency on the basis of emotional support alone. 151 Wash.2d at 388, 88 P.3d 939. The facts of this case demonstrate the kind of services for which an economic value can be determined. The jury here considered the value of the services combined with Kristen's monthly contribution to determine that, in the context of their entire financial situation, the Armantrouts were substantially dependent on Kristen for support and would not otherwise have been able to pay for the services she provided. Resp'ts' Pet. for Review at 6-7; Pet'rs' Suppl. Br. at 10. By excluding the everyday services a child would routinely provide, the trial court clearly established the boundaries within which the jury would be allowed to consider the Armantrouts' financial dependence on valuable services. ¶ 20 We now hold that the trial court correctly stated the law: RCW 4.20.020 allows triers of fact to consider services that have a monetary value when assessing a claimant's dependency on the decedent for support. We reverse the Court of Appeals. WE CONCUR: GERRY L. ALEXANDER, C.J., SUSAN OWENS, CHARLES W. JOHNSON, MARY E. FAIRHURST, JAMES M. JOHNSON, RICHARD B. SANDERS, DEBRA L. STEPHENS and TOM CHAMBERS, JJ.",analysis
+355,6340457,1,5,"Here, our review is limited. No appeal was taken from the original award. Thus, unless the workers’ compensation statutes provide a basis for modification, Spratt cannot prevail. While, as Spratt essentially conceded at oral argument, he did not specifically mention § 48-162.01(7) in his modification pleading or in the hearing below, the compensation court clearly understood that the question of the statutory basis for Spratt’s requested relief was before it. Over several pages of a thoroughly written decision, the court discussed its perception that a statutory basis was lacking and the case of this 5 Williams v. Dobberstein, 182 Neb. 862, 157 N.W.2d 776 (1968). 6 Boring v. Zoetis LLC, 309 Neb. 270, 959 N.W.2d 795 (2021). 7 Herrington v. P.R. Ventures, 279 Neb. 754, 781 N.W.2d 196 (2010). - 269 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports SPRATT v. CRETE CARRIER CORP. Cite as 311 Neb. 262 court upon which it primarily relied. We will turn to that case later. We have said that appellate courts do not consider arguments and theories raised for the first time on appeal. 8 We have stated the same rule using a slightly different articulation: An appellate court will not consider an argument or theory that is raised for the first time on appeal. 9 But we have also stated that when an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition. 10 This rationale focuses on the submission of an issue. But here, the compensation court was presented with the issue of its statutory authority. Spratt could have provided greater assistance to the court by citing § 48-162.01(7). But the compensation court operates exclusively in the realm of workers’ compensation law. We do not view the absent citation below as an attempt to induce error or to gamble on a favorable result. 11 Our analysis of the issues presented on appeal begins by noting competing general principles, and then turns to the two questions directly addressed by the compensation court. Did the court have statutory authority to modify the original award to treat Spratt’s thoracic back? And, was modification precluded by a principle of finality? 1. Two Competing Principles This case highlights two competing general principles regarding the Nebraska Workers’ Compensation Act: (1) liberal statutory interpretation and (2) finality. 8 In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020). 9 Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733, 956 N.W.2d 692 (2021). 10 Id. 11 See id. - 270 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports SPRATT v. CRETE CARRIER CORP. Cite as 311 Neb. 262 [3] In light of the beneficent purpose of the act, the appellate courts have consistently given it a liberal construction to carry out justly the spirit of the act. 12 In doing so, we follow a principle which first used the words “beneficent” and “liberal” in 1932. 13 However, the idea can be traced back over a century. 14 It arose shortly after the adoption of the foundational statutory section. 15 But our workers’ compensation statutes also employ equally ancient principles of finality. One statute, closely following the form of its original enactment in 1913, 16 states in part, “All awards of compensation made by the compensation court, except those amounts payable periodically, shall be final and not subject to readjustment.” 17 Another statute, Neb. Rev. Stat. § 48-170 (Reissue 2021), more directly employs the principle of finality. It states, “Every order and award of the [compensation court] shall be binding upon each party at interest unless an appeal has been filed with the compensation court within thirty days after the date of entry of the order or award.” 18 The essence of this language is found in its original 1917 version. 19 Thus, we held in 1933 that an order denying compensation, except insofar as modified by the express terms of the act, was an 12 Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (2015) (internal quotation marks omitted). 13 See Maryland Casualty Co. v. Geary, 123 Neb. 851, 244 N.W. 797 (1932). 14 See Parson v. Murphy, 101 Neb. 542, 163 N.W. 847 (1917), overruled in part on other grounds, Meyer v. Nielsen Chevrolet Co., 137 Neb. 6, 287 N.W. 849 (1939). 15 See, Neb. Rev. Stat. § 48-101 (Reissue 2021); 1913 Neb. Laws, ch. 198, § 1, p. 579. 16 See 1913 Neb. Laws, ch. 198, § 41, p. 597. 17 Neb. Rev. Stat. § 48-140 (Reissue 2021). 18 § 48-170. 19 See 1917 Neb. Laws, ch. 85, § 29, p. 222. - 271 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports SPRATT v. CRETE CARRIER CORP. Cite as 311 Neb. 262 absolute bar to a subsequent action based upon the same cause of action. 20 [4] We recognize that yet another statute 21 provides a 14-day window for modification of an award and that the language of § 48-170 was amended at the time three-judge review panels were eliminated in 2011. 22 Thus, a rule of law we articulated in 2002 23 and another stated in 1997 24 must be restated in light of the current statutes: Subject to the power of the Nebraska Workers’ Compensation Court to modify or change its findings, order, award, or judgment before appeal and within 14 days after the date of such findings, order, award, or judgment, every order and award of the compensation court becomes conclusive and final unless an appeal has been filed within 30 days after the date of entry of the order or award. 25 The Legislature’s repeated use of temporal limitations emphasizes the importance of finality in workers’ compensation cases. These principles are reflected in the parties’ arguments here. Spratt encourages this court to liberally interpret the act to allow the modification of the original award. Crete seeks for this court to uphold a principle of finality to bar modification. Recognizing the tension between these principles of liberal statutory interpretation and finality, we turn to Spratt’s assignments of error. 2. Statutory Authority Spratt first assigns that the compensation court erred in finding that it did not have the statutory authority to modify the 20 See Gray v. Burdin, 125 Neb. 547, 250 N.W. 907 (1933). 21 Neb. Rev. Stat. § 48-180 (Reissue 2021). 22 See 2011 Neb. Laws, L.B. 151, § 7. 23 See Lopez v. IBP, Inc., 264 Neb. 273, 646 N.W.2d 628 (2002). 24 See Thach v. Quality Pork International, 253 Neb. 544, 570 N.W.2d 830 (1997). 25 See §§ 48-170 and 48-180. - 272 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports SPRATT v. CRETE CARRIER CORP. Cite as 311 Neb. 262 original award to treat Spratt’s thoracic back. Spratt asserts that the compensation court improperly relied on Dougherty v. Swift-Eckrich 26 and that § 48-162.01(7) authorized the compensation court to modify the original award. [5,6] The compensation court is a tribunal of limited and special jurisdiction and has only such authority as has been conferred on it by statute, 27 and its power cannot extend beyond that expressed in the statute. 28 Accordingly, the compensation court cannot modify an award unless it is statutorily authorized to do so. 29 (a) Dougherty v. Swift-Eckrich Spratt argues that the compensation court’s reliance on Dougherty v. Swift-Eckrich was improper, because it was abrogated by a statutory change to Neb. Rev. Stat. § 48-162.01(6) (Reissue 1998). 30 We agree. In Dougherty v. Swift-Eckrich, this court found that the compensation court did not have the statutory authority to modify an award to fix a clerical mistake. 31 The compensation court mistakenly awarded vocational rehabilitation serv­ ices based upon a quarter-based academic calendar instead of a semester-based academic calendar, which the injured employee’s educational institution used. 32 We explained that the act did not empower the compensation court to modify a previous award. 33 26 Dougherty v. Swift-Eckrich, supra note 2. 27 Smith v. Fremont Contract Carriers, 218 Neb. 652, 358 N.W.2d 211 (1984). 28 See Hofferber v. Hastings Utilities, supra note 2. 29 See, id; Dougherty v. Swift-Eckrich, supra note 2. See, also, e.g., Neb. Rev. Stat. § 48-141 (Reissue 2021). 30 See, Dougherty v. Swift-Eckrich, supra note 2; 1997 Neb. Laws, L.B. 128, § 4. 31 See Dougherty v. Swift-Eckrich, supra note 2. 32 See id. 33 See id. - 273 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports SPRATT v. CRETE CARRIER CORP. Cite as 311 Neb. 262 The Legislature responded to Dougherty v. Swift-Eckrich by adding language, first codified in § 48-162.01(6), to allow the compensation court to modify a previous award for physical, medical, or vocational rehabilitation services. 34 The Legislature explained that this language was added to ensure the compensation court may modify an award “for the purpose of restoring the employee to gainful and suitable employment or as otherwise required in the interest of justice. This change [was] sought as a result of [Dougherty v. Swift-Eckrich].” 35 Later legislation moved the language to subsection (7). 36 Crete does not dispute that Dougherty v. Swift-Eckrich was abrogated by a statutory change. Referring to that decision, we have said that “the Legislature amended § 48-162.01(7) to permit the [compensation court] to modify previously awarded physical, medical, or vocational rehabilitation services.” 37 Instead, Crete argues that the compensation court’s reliance on the abrogated case is insignificant, because the compen­ sation court nonetheless lacked statutory authority to modify the original award to treat Spratt’s thoracic back. It relies upon the familiar principle that a proper result will not be reversed merely because it was reached for the wrong reasons. 38 Thus, our resolution of this assignment of error turns upon the extent of authority conferred by § 48-162.01(7) (Reissue 2021). (b) § 48-162.01(7) Spratt asserts that the same statutory language that abrogated Dougherty v. Swift-Eckrich—now codified in 34 See 1997 Neb. Laws, L.B. 128, § 4. 35 Introducer’s Statement of Intent, L.B. 128, Committee on Business and Labor, 95th Leg., 1st Sess. (Jan. 27, 1997). See, 1997 Neb. Laws, L.B. 128, § 4; Dougherty v. Swift-Eckrich, supra note 2. 36 See 2000 Neb. Laws, L.B. 1221, § 11. 37 Hofferber v. Hastings Utilities, supra note 2, 282 Neb. at 233-34, 803 N.W.2d at 14. 38 See Thornton v. Grand Island Contract Carriers, 262 Neb. 740, 634 N.W.2d 794 (2001). - 274 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports SPRATT v. CRETE CARRIER CORP. Cite as 311 Neb. 262 § 48-162.01(7)—also authorized the compensation court to modify the original award to treat his thoracic back. 39 As we have already quoted above, § 48-162.01(7) states in pertinent part: The compensation court or judge thereof may also modify a previous finding, order, award, or judgment relating to physical, medical, or vocational rehabilitation services as necessary in order to accomplish the goal of restoring the injured employee to gainful and suitable employment, or as otherwise required in the interest of justice. Spratt’s argument relies solely on this quoted language. At oral argument, Spratt correctly conceded that the compensation court could not modify the original award under § 48-141 and that his alleged thoracic back injury was not a compensable consequence of his lumbar back injury. Crete argues that § 48-162.01(7) was inapplicable to Spratt’s request for modification and encourages us to adopt and apply the Court of Appeals’ decision in McKay v. Hershey Food Corp. 40 There, an injured employee sought modification of a prior award by the compensation court in order to obtain vocational rehabilitation services. However, the prior award had not included vocational rehabilitation services. Consequently, the Court of Appeals found that the compensation court did not have the statutory authority to modify the award to include vocational rehabilitation services, because it would be awarding a new category of services. The Court of Appeals concluded that the addition to § 48-162.01(7) “contemplates a modification of services previously granted and does not provide for a modification of a final order to grant entirely new services or benefits.” 41 39 See Dougherty v. Swift-Eckrich, supra note 2. 40 McKay v. Hershey Food Corp., 16 Neb. App. 79, 740 N.W.2d 378 (2007). 41 See id. at 88, 740 N.W.2d at 386. - 275 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports SPRATT v. CRETE CARRIER CORP. Cite as 311 Neb. 262 Crete analogizes Spratt’s request to the modification sought in McKay v. Hershey Food Corp. Crete asserts that if the compensation court had modified the original award to treat Spratt’s thoracic back, it would have wrongfully awarded Spratt new rehabilitation services—as distinguished from modifying previous services. We are not persuaded by Crete’s interpretation of § 48-162.01(7). First, McKay v. Hershey Food Corp. is distinguishable from the instant appeal. Spratt does not request that the compensation court award him a new category of services. Instead, Spratt seeks modification of medical rehabilitation services that the compensation court had already awarded him. In 1969, 42 the Legislature first expressed a goal, as the section now reads, “One of the primary purposes of the Nebraska Workers’ Compensation Act is restoration of the injured employee to gainful employment.” 43 During the legislative proceedings in 1969, a compensation court judge explained that “there is a difference between physical or medical rehabilitation and vocational rehabilitation.” 44 The legislation, the judge explained, “reinforces the distinction between physical and medical rehabilitation and vocational rehabilitation.” 45 The language of the original codification discussed both categories in subsection (3). 46 In 2005, § 48-162.01 was restructured to retain the entitlement to vocational rehabilitation in subsection (3) and to place the entitlement to physical and medical rehabilitation in subsection (6). 47 The power to modify 42 See 1969 Neb. Laws, ch. 388, § 1, p. 1357. 43 § 48-162.01(1). 44 Labor Committee Hearing, ch. 388, § 1, p. 1357, 80th Leg., 1st Sess. 3 (Feb. 12, 1969). 45 Id. 46 See § 48-162.01(3) (Reissue 1974). 47 See, 2005 Neb. Laws, L.B. 13, § 19; § 48-162.01 (Reissue 2021). - 276 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports SPRATT v. CRETE CARRIER CORP. Cite as 311 Neb. 262 remained codified in subsection (7). 48 Thus, the Legislature has clarified its language to carry out its original goal of maintaining the distinction between the two types of rehabilitation services: (1) medical and physical and (2) vocational. In McKay v. Hershey Food Corp., the injured worker sought modification to add vocational rehabilitation where none had been originally awarded. Here, Spratt seeks modification of the extent of medical and physical rehabilitation provided by the original award. Further, Crete’s argument is counterintuitive. In essence, Crete argues that the compensation court cannot modify an award to include any medical rehabilitation services that were not specifically included in the prior award, regardless of how similar the services were to those awarded in the prior award. Under this rationale, the compensation court would be incentivized to broadly include all hypothetical medical rehabilitation services (no matter how redundant or speculative) in order to ensure it can modify the award later if necessary. [7] Accordingly, we conclude that pursuant to § 48-162.01(7), where a prior award of the compensation court has provided medical or physical rehabilitation services, the compensation court may modify the award of such services to the extent the court finds such modification necessary in order to accomplish the goal of restoring the injured employee to gainful and suitable employment, or otherwise required in the interest of justice. Thus, the compensation court erred in its legal conclusion that it lacked the power to modify the original award to treat Spratt’s thoracic back. [8] We recognize that in adopting this language in § 48-162.01(7), the Legislature did not place a temporal limitation on the compensation court’s power to modify. An appellate court is not at liberty to add language to the plain terms of a statute to restrict its meaning. If a time limitation is to apply, it is up to the Legislature to impose one. 48 See id. - 277 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports SPRATT v. CRETE CARRIER CORP. Cite as 311 Neb. 262 3. Preclusion We next address whether Spratt’s request that the compensation court modify the original award is precluded as a matter of law. Spratt’s final four assignments of error assert that the entire gambit of preclusion doctrines—claim preclusion, issue preclusion, and the law-of-the-case doctrine—did not bar his request. Spratt also uses the terms “collateral estoppel” and “res judicata,” but they are duplicative. 49 In the past, this court has referred to claim preclusion and issue preclusion, respectively, as res judicata and collateral estoppel. 50 We have since moved away from that terminology and now utilize the terms “claim preclusion” and “issue preclusion.” 51 The compensation court relied upon issue preclusion. Crete concedes that issue preclusion does not apply here. Instead, it relies upon the law-of-the-case doctrine. Of the three preclusion doctrines, only the ­law-of-the-case doctrine may apply. As Crete submits in its brief, claim and issue preclusion are inapplicable to the instant appeal. Claim and issue preclusion are only applicable to matters raised in subsequent actions. 52 Here, there was no subsequent action. Spratt’s request for modification arose in the same action as the original award. 53 Therefore, this court need only address whether the law-of-the-case doctrine precluded Spratt’s request. [9-11] The law-of-the-case doctrine reflects the principle that an issue that has been litigated and decided in one stage of a case should not be relitigated at a later stage. 54 The ­law-of-the-case doctrine promotes judicial efficiency and pro- tects parties’ settled expectations by preventing parties from 49 See Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014). 50 See id. 51 See id. 52 See id. 53 See § 48-141. 54 County of Sarpy v. City of Gretna, 276 Neb. 520, 755 N.W.2d 376 (2008). - 278 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports SPRATT v. CRETE CARRIER CORP. Cite as 311 Neb. 262 relitigating settled issues within a single action. 55 Generally, absent extraordinary circumstances, a court should be reluctant to revisit its own prior decision or that of another court in a single case. 56 [12,13] Under the mandate branch of the ­law-of-the-case doctrine, a decision made at a previous stage of litigation, which could have been challenged in the ensuing appeal but was not, becomes the law of the case; the parties are deemed to have waived the right to challenge that decision. 57 However, an issue is not considered waived if a party did not have both an opportunity and an incentive to raise it in a previous appeal. 58 We conclude that the law-of-the-case doctrine does not bar the modification of the original award. Spratt did not have an incentive to appeal from the original award. The doctors’ medical diagnoses of Spratt’s injuries aligned with the medical rehabilitation services given under the original award. Spratt reasonably believed that he would receive the treatment necessary to rehabilitate his back. Spratt discovered that the awarded services were insufficient only after the time had lapsed to appeal from the original award. Prior to that discovery, Spratt had no purpose in appealing from the original award. [14] We emphasize that nothing in this opinion should be read to suggest how the compensation court should exercise its power pursuant to § 48-162.01(7), or to limit or preclude the court in making findings of fact. We have long said that on appellate review, the factual findings made by the trial judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong. 59 55 Id. 56 Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008). 57 County of Sarpy v. City of Gretna, supra note 54. 58 See id. 59 Lewis v. MBC Constr. Co., 309 Neb. 726, 962 N.W.2d 359 (2021). - 279 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports SPRATT v. CRETE CARRIER CORP. Cite as 311 Neb. 262",analysis
+356,2823812,1,2,"¶8         The general applicability of CRE 606(b) is a question of law that we review de novo. See Kendrick v. Pippin, 252 P.3d 1052, 1064 (Colo. 2011), abrogated on other grounds by Bedor v. Johnson, 2013 CO 4, 292 P.3d 924. But whether the jury was influenced by extraneous prejudicial information is a mixed question of law and fact; we accept the trial court’s findings of fact absent an abuse of discretion, but we review the court’s legal conclusions de novo. Id.",standard of review
+357,3134848,1,1,"Defendant was arrested on October 31, 1989, for possession of drugs. While in custody, he was questioned about a robbery and arson murder which occurred at McHugh’s tavern earlier that month. On the following day, defendant gave an assistant State’s Attorney a signed, handwritten statement admitting to the arson murder. Defendant was tried in the circuit court of Cook County and convicted of aggravated arson and first degree murder and sentenced to natural life imprisonment. On May 28, 1993, the appellate court reversed the convictions ( People v. Crane , 244 Ill. App. 3d 721 (1993)), finding that the testimony presented at the suppression hearing failed to establish probable cause for defendant’s arrest and, consequently, that the trial court erred when it denied defendant’s motion to suppress his confession. Defendant’s convictions were overturned and the matter was remanded for a new trial. The State petitioned this court for leave to appeal. We denied the petition on October 6, 1993. People v. Crane , 152 Ill. 2d 566 (1993). The State then filed a petition for a writ of certiorari with the United States Supreme Court. The appellate court’s mandate was recalled pending resolution of the State’s petition. 155 Ill. 2d R. 368. On February 28, 1994, the Unites States Supreme Court denied the State’s application. Upon receiving notification of the denial, the appellate court’s mandate should have been reissued. See 155 Ill. 2d R. 368. However, in this case the mandate was not transmitted to the circuit court until February 2, 1995. After the mandate was received, the case was placed on the circuit court docket. On March 15, 1995, defendant made his first appearance before the trial court. On that date, defendant’s attorney was unavailable and a continuance was granted to March 21, 1995. On March 21, 1995, defendant agreed to a May 31, 1995, trial date. On May 31, 1995, defendant answered ready and demanded trial. The case was continued on the State’s motion until July 31, 1995. On July 31, 1995, defendant moved for dismissal of the charges against him, alleging the State violated his constitutional right to a speedy retrial because “more than a reasonable length of time has elapsed since cert was denied by the U.S. Supreme Court.” Defendant also alleged his statutory right to a speedy retrial was violated because “more than 120 days has elapsed since [his] case was remanded.” On September 7, 1995, the trial court denied defendant’s motion for dismissal, giving no explanation for its decision. After other pretrial issues were resolved, defendant’s second trial commenced on October 15, 1996. (footnote: 1) Defendant again was found guilty of first degree murder and aggravated arson. He later was sentenced to a term of 75 years’ imprisonment on the murder conviction and a concurrent term of 30 years’ imprisonment for the aggravated arson. On appeal, the appellate court reversed defendant’s convictions. 307 Ill. App. 3d 816. Applying the balancing test set forth in Barker v. Wingo , 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), the appellate court ruled that defendant’s constitutional right to a speedy retrial had been violated. In assessing defendant’s claim, the appellate court held: the delay in bringing defendant to trial after his convictions were reversed–a period of 26 months until defendant moved for dismissal–was presumptively prejudicial; that defendant did not waive his right to a speedy trial by his inaction; and that defendant was severely prejudiced because he remained incarcerated during the entire 26-month period. In addition, the appellate court held the unexplained delay of 11 months, though not a deliberate attempt to circumvent defendant’s speedy-trial rights, was unjustified. Based on this unexcused “lengthy delay,” the appellate court concluded that defendant had been denied his constitutional right to a speedy trial and dismissed the indictment. We granted the State’s petition for leave to appeal. 177 Ill. 2d R. 315(a).",facts
+358,1652716,1,7,"Finally, Appellant asserts she was entitled to a directed verdict of acquittal because the Commonwealth failed to prove the element of intent necessary to convict her of complicity to murder. KRS 502.020(1); KRS 507.020(1)(a). It is elementary that intent may be inferred from the act itself or from the circumstances surrounding it. Tungate v. Commonwealth, Ky., 901 S.W.2d 41 (1995); Smith v. Commonwealth, Ky., 737 S.W.2d 683, 688 (1987); Lambert v. Commonwealth, Ky. App., 835 S.W.2d 299, 301 (1992). Appellant's confession of March 18, 1995, as corroborated by the location of the victim's body, the autopsy results, and the physical evidence obtained during the search of Appellant's residence, was sufficient to support her conviction of complicity to murder. For these reasons, the judgment of conviction and the sentence imposed upon Appellant by the Hart Circuit Court are affirmed. STEPHENS, C.J., and GRAVES, JOHNSTONE and WINTERSHEIMER, JJ., concur. STUMBO, J., dissents by separate opinion, with LAMBERT, J., joining that dissent.",sufficiency of the evidence
+359,1709152,1,3,The proper standard to employ in determining whether a worker who has received total and permanent disability benefits for 800 weeks continues to be totally and permanently disabled and thus entitled to compensation benefits is whether the worker's physical condition at the time comes within the statutory definition of total and permanent disability. MCL 412.10; MSA 17.160. We further hold that the setoff provision of MCL 412.11; MSA 17.161 is applicable to this post-800-week period. This case is remanded to the WCAB for proceedings consistent with this opinion.,conclusion
+360,2621419,1,2,"¶ 6 When a defendant enters a guilty plea, the sentencing court engages in a rule 11 colloquy with the defendant in order to establish that the defendant's guilty plea is truly knowing and voluntary and establish on the record that the defendant knowingly waived his or her constitutional rights. State v. Visser, 2000 UT 88, ¶ 11, 22 P.3d 1242 (internal quotation marks omitted). Therefore, the question we now face is what a sentencing judge must do to ensure that a plea is knowing and voluntary when the defendant has taken medicine to aid sleep and control moods. ¶ 7 We begin with the principle that [t]he use of narcotics does not per se render a defendant incompetent to stand trial, nor, presumably, to plead guilty. Manley v. United States, 396 F.2d 699, 700 n. 2 (5th Cir.1968) (emphasis in original) (citations omitted). It is, of course, the drug's effect and not the mere presence of the drug that matters. Thus, Mr. Oliver would be entitled to vacation of his plea and conviction if he proved that his mental faculties were so impaired by drugs when he pleaded that he was incapable of full understanding and appreciation of the charges against him, of comprehending his constitutional rights and of realizing the consequences of his plea. United States v. Malcolm, 432 F.2d 809, 812 (2d Cir.1970). ¶ 8 The challenge posed by this case is to determine what a sentencing judge must do to ensure that the drug ingested by a defendant has not appreciably impaired his or her power to understand the meaning and consequences of admitting guilt. The difficulty of meeting this challenge is diminished substantially by our recent encounter in State v. Beckstead, 2006 UT 42, 140 P.3d 1288, with the same issue, albeit with a different drug — alcohol. There, we refused to require a judge taking a rule 11 plea from a defendant who had been drinking to follow any prescribed script in aid of ascertaining whether the alcohol had rendered the defendant incapable of entering a guilty plea. Id. ¶ 16. We outlined, however, several general principles to assist judges who are faced with the defendant's possible drug impairment in a plea hearing. First among these is the injunction that a sentencing judge pursue a meaningful engagement with a defendant during the plea colloquy. Id. ¶ 18. Such an engagement with a defendant may feature many different approaches to accomplishing the task of reaching a conclusion about a defendant's capability to enter a knowing and voluntary plea. The Beckstead principles are equally applicable here. ¶ 9 Just as we grant a great deal of deference for factual determinations at trial because of the fact finder's vantage point in relation to witnesses and evidence, we believe that in most instances sentencing judges can best determine how to ascertain whether a plea is knowing and voluntary based on the specific interactions they have with the defendant before them. ¶ 10 Mr. Oliver suggests that if it is known that a defendant has consumed a psychotropic drug, the court must hold a hearing and invite the introduction of expert testimony to determine the drug's effect on the defendant. We agree with Mr. Oliver's assertion that when the defendant confirms that he has recently taken a drug, the court must inquire further into the defendant's capacity. See Miranda-Gonzalez v. United States, 181 F.3d 164, 166 (1st Cir.1999). This requirement, however, does not sweep as broadly as Mr. Oliver would like it to. As with Beckstead, we refuse to mandate specific procedures. Instead, we focus on whether the methods employed by the sentencing court resulted in a meaningful engagement between the court and the defendant that allowed the court to make an informed decision. ¶ 11 The critical question is whether the drugs—if they have a capacity to impair the defendant's ability to plea—have in fact done so on this occasion. United States v. Savinon-Acosta, 232 F.3d 265, 268 (1st Cir.2000). The court can make this determination most effectively by interacting with the defendant himself, by asking him questions concerning his mental state and ability to understand the procedures, and then weighing both the content of the responses offered as well as the demeanor and general coherence of the defendant that can be gleaned from his responses. In some instances, it may be beneficial for the court to ask specifically about the type and amount of drug consumed. But [j]udges are not pharmacists or doctors, id., so depending on the circumstance, that information may or may not be beneficial to the court. Therefore, we leave it up to the court's sound discretion to determine whether to pursue that line of inquiry. ¶ 12 Mr. Oliver argues that expert testimony is necessary to determine a defendant's capacity. We disagree. As with questions concerning the types and amount of drugs consumed, an expert may or may not be beneficial to the court. While experts will likely be capable of describing the general effect of a drug, that is no guarantee that the particular drug at issue had the particular effect on the defendant at the particular time that he was before the court. Such opinions would be of lesser importance than the actual observations of the court concerning whether the defendant in this case, as opposed to people generally, is capable of making a knowing and voluntary plea. ¶ 13 In this instance, the sentencing court's investigation was sufficient to meet the standard outlined above. The court asked about the purpose of the drug, how it affected Mr. Oliver, and whether he understood the proceedings. Mr. Oliver's counsel, with the approval of the court, then asked more in-depth questions about why Mr. Oliver took the pills and their effect on him. Mr. Oliver's answers were all coherent, lucid, and directly responsive to the questions asked. This interaction satisfies the requirement that the court's decision be based upon meaningful engagement with the defendant. Furthermore, when asked repeatedly if he understood the proceedings or if the drugs affected his ability to understand, he consistently stated that he did understand and that the medication had in no way affected his ability to make a knowing and voluntary plea. While the defendant's own assurances of his capacity are not conclusive, [c]ourts have commonly relied on the defendant's own assurance (and assurances from counsel) that the defendant's mind is clear. Id. at 269. ¶ 14 Our deference in this case is even greater than that allotted in Beckstead, 2006 UT 42, 140 P.3d 1288. While the presence of alcohol in a defendant's system can only decrease his ability to enter a knowing and voluntary plea, that is not necessarily the case with prescription medication. In most instances, including this one, when a mood-altering drug is given to a defendant by a physician, it is to improve the defendant's cognitive abilities. In other words, the fact that a defendant has undergone a medical evaluation and is receiving medication to treat a psychological infirmity is often evidence weighing in favor of a finding that the defendant is capable of entering a knowing and voluntary plea.",analysis
+361,2387623,1,1,"For his first point on appeal, appellant contends that the jury should not have been instructed on felony murder because the State did not present sufficient evidence to support that the murder occurred as a result of a burglary. Appellant was charged, in an amended information, with two alternative charges of murder. First, the State charged appellant with causing Ms. Byers's death while in the course of burglary or during the escape therefrom; second, the State charged appellant with purposely causing Ms. Byers's death. The trial court gave instructions on both offenses and the jury returned a general verdict of guilty. Appellant contends that it is impossible to know on which count he was convicted and, because there was not substantial evidence of a burglary the conviction should be reversed and dismissed. We note that the jury instructions provided for a general verdict, and that appellant did not seek instructions for a verdict on each of the specific charges and did not proffer instructions or make an objection to the case being submitted for a general verdict. Under these circumstances, we will examine the evidence relating to both counts to determine whether there is sufficient evidence to support the jury's verdict on each of the charges. See United States v. Nattier, 127 F.3d 655 (8th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1398, 140 L.Ed.2d 656 (1998). We note that pursuant to Ark.Code Ann. § 5-4-501, a conviction on either charge would support a life sentence. The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. On appeal, we will review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support the verdict. Davis v. State, 314 Ark. 257, 264, 863 S.W.2d 259, 262 (1993). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Only evidence supporting the verdict will be considered. Stewart v. State, 331 Ark. 359, 363, 961 S.W.2d 750, 752 (1998). It is important to note that we make no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. Davis, 314 Ark. at 264, 863 S.W.2d at 262. However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Whether the evidence excludes every hypothesis is left to the jury to determine. Id.",sufficiency of the evidence
+362,2543803,1,2,"
+¶ 10 The Warrs argue that under the merger doctrine, the warranty deeds transferring title to the lots to the plaintiffs extinguished any oral contracts between the Warrs and the plaintiffs regarding water. The Warrs assert that warranty deeds are, as a matter of law, final integrated agreements to convey property, and therefore any alleged agreement regarding the irrigation water rights is unenforceable if not conveyed by deed. The Warrs maintain that the plaintiffs have no claim to the irrigation water because the warranty deeds did not convey irrigation water rights. The plaintiffs counter that, based upon the collateral rights exception to the merger doctrine, the merger doctrine is inapplicable. They argue that because the parties did not intend performance of their agreement to be complete upon execution of the deed—the Warrs intended to deliver the irrigation rights later— the irrigation water was not part of the subject matter of the land title transaction, and the exception applies. The Warrs contend that the collateral rights exception cannot apply here because oral terms relating to title cannot be collateral. ¶ 11 Whether we even address this issue, however, depends on whether the issue was adequately preserved for appeal. That is, [the] trial court must be offered an opportunity to rule on an issue. Badger v. Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998) (citations omitted). Plaintiffs claim, as a preliminary matter, that the issue was not sufficiently raised before the trial court and preserved for appeal. The Warrs claim the issue was adequately preserved simply because the trial court ruled on it. We agree. By ruling on the question, the trial court demonstrated that the issue was brought to its attention, and the issue has been sufficiently preserved for our review. ¶ 12 The standard of review we apply here is a correctness standard. The applicability of the merger doctrine, that is, whether the warranty deeds conveying the lots to the plaintiffs were integrations of the parties' agreements that extinguished any other oral agreements regarding irrigation water rights, is a question of law that is reviewed for correctness, and we afford no deference to the trial court. See Dansie v. Hi-Country Estates Homeowners Ass'n, 1999 UT 62, ¶ 19, 987 P.2d 30; Secor v. Knight, 716 P.2d 790, 792 (Utah 1986). ¶ 13 The merger doctrine, as a general rule, declares `that on delivery and acceptance of a deed the provisions of the underlying contract for the conveyance are deemed extinguished or superseded by the deed.' Dansie, 1999 UT 62 at ¶ 19, 987 P.2d 30 (quoting Secor, 716 P.2d at 792). The doctrine applies when the acts to be performed by the seller in a contract relate only to the delivery of title to the buyer. Stubbs v. Hemmert, 567 P.2d 168, 169 (Utah 1977). Execution and delivery of a deed by the seller then usually constitute full performance [by the seller], and acceptance of the deed by the buyer manifests [the buyer's] acceptance of that performance even though the estate conveyed may differ from that promised in the antecedent agreement. Id. As a result, where the acts to be performed by the seller in a contract relate to the delivery of title, the deed is the final agreement and all prior terms are extinguished and unenforceable. Id. ¶ 14 There are certain exceptions to the application of the merger doctrine, however. Dansie, 1999 UT 62 at ¶ 19, 987 P.2d 30; Secor, 716 P.2d at 793. Under the collateral rights exception, if the original contract calls for performance of some act that is collateral to the conveyance of title, the contractual obligations are not extinguished, but instead survive the deed. Stubbs, 567 P.2d at 169, construed in Dansie, 1999 UT 62 at ¶ 20, 987 P.2d 30, and Secor, 716 P.2d at 793. The question, therefore, is whether the agreement to convey irrigation water rights was collateral to the agreement to convey title. ¶ 15 Whether the terms of the contract are collateral, or are part of the obligation to convey and therefore unenforceable after delivery of the deed, depends to a great extent on the intent of the parties with respect thereto. Stubbs, 567 P.2d at 169, cited in Dansie, 1999 UT 62 at ¶ 20, 987 P.2d 30. When seller's performance is intended by the parties to take place at some time after the delivery of the deed it cannot be said that it was contemplated by the parties that delivery of the deed would constitute full performance on the part of the seller, absent some manifest intent to the contrary. Stubbs, 567 P.2d at 169-70, quoted in Dansie, 1999 UT 62 at ¶ 20, 987 P.2d 30. ¶ 16 We conclude that the collateral rights exception applies here. Arguably the deeds could have conveyed irrigation water rights, with the Warrs perfecting ownership in the Bleazard litigation later, then having title pass to the plaintiffs through the doctrine of after-acquired title. See Utah Code Ann. § 57-1-10 (2000). However, it is undisputed by the parties that the Warrs planned on conveying title to the plaintiffs after the delivery of the deeds to the lots. More importantly, the trial judge found that the Warranty Deeds ... were not intended to be a complete integration of the parties' understanding. Thus, the intent of the parties as determined by the trial judge was to finalize the irrigation water bargain after title to the lots had been delivered. Specifically, the Warr's performance, delivery of the irrigation water rights, was intended by the parties to take place at some time after the delivery of the deed. Moreover, unlike Dansie where residential property covenants and restrictions, matters that burden the title, were not collateral because they related to the same subject matter as the deed, 1999 UT 62 at ¶ 21, 987 P.2d 30, in this case the irrigation water rights are not necessarily appurtenant to the lots but are separate rights, distinct from the subject matter of the deed, that the parties planned to have transferred by a subsequent deed at a later date. As a result, the collateral rights exception applies, meaning the merger doctrine does not extinguish the irrigation water agreement. The trial court did not err in concluding that the merger doctrine did not extinguish the agreement for irrigation water rights.
+¶ 17 The Warrs claim the trial court erred in admitting evidence regarding the oral assurances made by the Warrs to provide the plaintiffs with irrigation water because, they assert, the parol evidence rule prohibits the introduction of evidence relating to any oral agreements formed prior to the transfer of the deeds. The plaintiffs argue that the parol evidence rule is inapplicable here because the rule applies only where the parties execute a writing, and no writing regarding irrigation water rights was executed, or necessary to enforce the contract in question. Additionally, claim the plaintiffs, evidence relevant to the question of whether the warranty deeds were integrated agreements is admissible, and because the evidence received pertained to whether the warranty deeds were integrations of the parties' entire agreement, the trial court did not err. ¶ 18 Although the parol evidence rule developed at common law as a principle of contract interpretation and is not a creature of the formal rules of evidence, as its name suggests, it functions as a rule of evidence. West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1313 n. 2 (Utah Ct.App. 1991). Because the determination of whether to admit parol evidence is a question of law, we review for correctness; but at the same time, because a trial court must consider facts offered by the parties regarding whether they adopted a writing or writings as a complete integration of their agreement, we incorporate a clearly erroneous standard of review for these subsidiary factual determinations. Cal Wadsworth Constr. v. City of St. George, 898 P.2d 1372, 1378 (Utah 1995) (`[W]hether evidence is admissible is a question of law, which we review for correctness, incorporating a clearly erroneous standard of review for subsidiary factual determinations.' (citation omitted)). ¶ 19 The general rule is that in the absence of fraud, an apparently complete and certain agreement which the parties have reduced to writing will be conclusively presumed to contain the whole agreement; and that parol evidence of contemporaneous [or prior] conversations, representations or statements will not be received for the purpose of varying or adding to the terms of the written agreement. Eie v. St. Benedict's Hosp., 638 P.2d 1190, 1194 (Utah 1981) (citing B.T. Moran, Inc. v. First Sec. Corp., 82 Utah 316, 24 P.2d 384 (1933)). This general rule applies only to integrated contracts, though. Id. Thus, when presented with a written agreement that one of the parties insists is an integration, the court must consider whether the agreement is, in fact, integrated. `In determining the issue of the completeness of the integration in writing, evidence extrinsic to the writing itself is admissible ... to show the circumstances under which the agreement was made and the purpose for which the instrument was executed.' St. Benedict's Hosp., 638 P.2d at 1194 (quoting Bullfrog Marina, Inc. v. Lentz, 28 Utah 2d 261, 266, 501 P.2d 266, 270 (1972)). ¶ 20 In the instant case, the trial court was presented with a writing or writings that one of the parties insisted was an integration: The Warrs contended that the deeds conveying the subdivided lots to the plaintiffs were integrations of the parties' agreements; the plaintiffs disagreed. Consequently, in considering whether the deeds were, in fact, integrations of the parties' agreements, extrinsic parol evidence was admissible to determine whether the parties adopted the warranty deeds as a final expression of their agreements. Indeed, in evaluating the circumstances under which the agreements for irrigation water were made and the purpose for which deeds were executed, the court was required to admit and consider extrinsic parol evidence. The trial court determined that the Warranty Deeds by which the Plaintiffs' lots were conveyed were not intended to be a complete integration of the parties' understanding. We conclude that the trial court did not err in admitting parol evidence to determine that the parties did not adopt the warranty deeds as final expressions of their agreements regarding the irrigation water.
+¶ 21 The Warrs insist the statute of frauds, Utah Code Ann. §§ 25-5-1 to -9 (1998), bars enforcement of the plaintiffs' alleged contracts for irrigation water rights because, they claim, the contracts are for a real property interest. They note that section 25-5-1 requires interests in real property to be conveyed by act or operation of law, or by deed or conveyance in writing, and claim that because the irrigation water rights were never conveyed by deed, the plaintiffs have no such rights. The plaintiffs contend that their claims are not barred because the statute of frauds is inapplicable due to the doctrine of part performance. The Warrs counter that the equitable doctrine of part performance does not take the parties outside of the statute of frauds because the plaintiffs have not demonstrated sufficient part performance. They claim the alleged part performance, the purchase of the lots, is not exclusively referable to the contracts for water, and, therefore, the part performance exception to the statute of frauds does not apply. ¶ 22 Generally, a conveyance of real property is within the statute of frauds and unenforceable absent a writing. Martin v. Scholl, 678 P.2d 274, 275 (Utah 1983). However, the doctrine of part performance allows a court of equity to enforce an oral agreement, if it has been partially performed, notwithstanding the statute [of frauds]. Id.; Utah Code Ann. § 25-5-8 (1998) (Nothing in this chapter contained shall be construed to abridge the powers of courts to compel the specific performance of agreements in case of part performance thereof.). The question, therefore, is whether the oral agreement pertaining to the irrigation water rights was partially performed by the plaintiffs. ¶ 23 In previous cases involving the part performance exception to the statute of frauds, we have articulated the following standard of review: In an equity review of facts if the record shows a fair preponderance, or even if the evidence is balanced evenly, the trial court finding should be sustained. If the evidence is so vague and uncertain that the finding is obviously erroneous, there may be a new finding on review. Randall v. Tracy Collins Trust Co., 6 Utah 2d 18, 23, 305 P.2d 480, 483 (1956), quoted in Scholl, 678 P.2d at 275. The applicability of the statute of frauds is a question of law to be reviewed for correctness. However, because a trial court must consider facts offered by the parties regarding part performance of the agreement, we follow the above-articulated standard of review for these subsidiary factual determinations and will reverse only `[i]f the evidence is so vague and uncertain that the finding is obviously erroneous.' Scholl, 678 P.2d at 275 (quoting Randall, 6 Utah 2d at 23, 305 P.2d at 483). ¶ 24 The standard for sufficient partial performance in Utah is as follows: [1] the oral contract and its terms must be clear and definite; [2] the acts done in performance of the contract must be equally clear and definite; and [3] the acts must be in reliance on the contract. Such acts in reliance must be such that (a) they would not have been performed had the contract not existed, and (b) the failure to perform on the part of the promisor would result in fraud on the performer who relied, since damages would be inadequate. Reliance may be made in innumerable ways, all of which could refer exclusively to the contract. Scholl, 678 P.2d at 275 (quoting Randall, 6 Utah 2d at 24, 305 P.2d at 484). We have also indicated that evidence of partial performance must be strong, Scholl, 678 P.2d at 275, and we expressed the preference for acts-oriented rather than word-oriented evidence, id. at 275-76. In explaining the significance of exclusively referable part performance evidence, we stated: [A]cts of part performance must be exclusively referable to the contract in that the possession of the party seeking specific performance and the improvements made by him [or her] must be reasonably explicable only on the postulate that a contract exists. The reason for such requirement is that the equitable doctrine of part performance is based on estoppel and unless the acts of part performance are exclusively referable to the contract, there is nothing to show that the plaintiff relied on it or changed his [or her] position to his prejudice.... Scholl, 678 P.2d at 277 (quoting In re Roth's Estate, 2 Utah 2d 40, 44, 269 P.2d 278, 281 (1954)) (alterations in original). We also explained, however, that under certain circumstances the exclusively referable requirement may be relaxed. Scholl, 678 P.2d at 277-78. [T]he more conclusive the direct proof of the contract, the less stringent the requirement of exclusively referable acts. Id. at 278. ¶ 25 In the instant case, we conclude that the plaintiffs' performance removed the oral agreements from the statute of frauds. First, the oral contract and its terms are clear and definite. The trial court determined that [t]he inclusion of irrigation water in the purchase price of the plaintiffs' lots was a basis of the bargain [to purchase the lots]. Despite the fact that the parties' testimony regarding the irrigation water contracts conflicts (plaintiffs claim they paid for the water as part of the purchase price of the lots while the Warrs claim the water had to be bought for an additional sum), the trial court expressly noted,  The terms of the oral contracts were clear and definite, and Plaintiffs undertook acts of part performance which removed the oral contracts from the statute of frauds. (Emphasis added.) The trial court further noted that [t]here is also overwhelming independent evidence of the oral contracts in the affidavit filed by the Warrs in the Bleazard litigation, the representations made by the Warrs in their dealings with the Tooele Planning Commission, and the representations made by the Warrs in their communications with the State Engineer. For these reasons the trial court concluded that the exclusively referable requirement was relaxed. The Warrs have not persuaded us that the trial court's conclusion that the terms of the agreements—asserting that the plaintiffs paid for the irrigation water rights as part of the purchase price of the lots—are not clear and definite. ¶ 26 Second, the acts done in performance of the contract are equally clear and definite. The trial court found that the parties paid money for the irrigation water at the time they paid for their lots. Payment of additional consideration for the irrigation water rights constitutes performance of the plaintiffs' contractual obligation. ¶ 27 Third, the plaintiffs' acts were done in reliance on the contract. The plaintiffs paid for the irrigation water rights in reliance on the Warrs' representation that deeds to the water rights would be delivered. Payment of funds for the water rights would not have been made had the oral agreements not existed. Moreover, failure by the Warrs to perform their obligation would result in fraud on the plaintiffs who paid for the water rights. Inasmuch as the trial court's findings articulate conclusive and direct proof of the oral contracts for irrigation water, the exclusively referable requirement was appropriately relaxed by the trial court. ¶ 28 Finally, the Warrs have not persuaded us that the evidence regarding the terms of the parties' agreements for irrigation water is so vague and uncertain that the trial court's conclusion that the terms of the contract were clear and definite is obviously erroneous. To the contrary, the evidence as found supports the trial court's determination that the Warrs agreed to provide irrigation water to the plaintiffs and that the plaintiffs paid for the water as part of the purchase price of their respective lots. As a result, we affirm the trial court's determination that the oral contracts for irrigation water were outside of the statute of frauds based on the doctrine of part performance.
+¶ 29 The Warrs argue that any sale of irrigation water was void without Hazel Warr's approval. They claim that because Hazel is a joint owner of the Irrigation Water with Edward Warr, the water cannot be conveyed without her authority. The Warrs claim Hazel never authorized anyone to sell or convey her interest, and therefore those who allegedly promised the plaintiffs the water rights, Edward and Clayton Warr (the Warrs' son), lacked authority to sell Hazel's interest. Plaintiffs argue that Edward and Clayton had both actual and apparent authority to act as Hazel's agents and to sell her interest in the irrigation water. They argue that Hazel testified that Clayton was authorized to act on her behalf (actual authority), and they claim she made manifestations to third persons that they were her agents (apparent authority). Plaintiffs further assert that Hazel is estopped from arguing that she is not bound by promises made to the plaintiffs by her husband because she ratified the representations by remaining silent. The Warrs claim that any ratification cannot be inferred from silence because the law requires a writing to enforce agreements for property rights such as irrigation water rights and therefore any ratification of Edward's actions by Hazel must have been in writing. ¶ 30 We find this contention of the Warrs to be meritless. First, Hazel Warr herself was involved in the sale of the lots and negotiated with the plaintiffs regarding the irrigation water rights and price to be paid for the lots. Hazel herself testified that she discussed irrigation water rights with the plaintiffs when they bought the lots. Hazel testified that she was involved in negotiations with the Thomases. The Martinezes testified that she negotiated with them when they purchased their lot, and Wayne Reynolds testified that he negotiated the price of his lot with both Hazel and Edward. The Rubens also testified that Hazel was present when they negotiated the price for their lot, and Hazel testified that she signed documents on behalf of her husband in the sale to the Rubens. The Warrs' own affidavit submitted to the district court in the Bleazard litigation stated that  we filed an application,  we subdivided and platted, and  we have sold six of the eleven lots. Given Hazel Warr's first-hand involvement in the negotiations and sale of the lots, we conclude it is unnecessary to analyze whether Edward acted as her agent.
+¶ 31 The Warrs argue the four-year statute of limitations, Utah Code Ann. § 78-12-25 (1996), bars plaintiff's suit. The plaintiffs counter that the statute of limitations is tolled by the discovery rule. According to the plaintiffs, the Warrs misled them into believing they were trying to satisfy their obligation to provide irrigation water, thereby tolling the statute. Plaintiffs contend they had no reason to know they had a cause of action against the Warrs until late 1995 when they discovered the Warrs were not going to perform their alleged obligation of providing irrigation water. The Warrs respond that the statute is not tolled by the discovery rule because plaintiffs did not exercise due diligence to discover their cause of action. ¶ 32 The applicability of a statute of limitations and the applicability of the discovery rule are questions of law, which we review for correctness. See, e.g., Quick Safe-T Hitch, Inc. v. RSB Sys. L.C., 2000 UT 84, ¶ 10, 12 P.3d 577; Klinger v. Kightly, 791 P.2d 868, 869-70 (Utah 1990). However, the applicability of the statute of limitations and the discovery rule also involves a subsidiary factual determination—the point at which a person reasonably should know that he or she has suffered a legal injury. This is a question of fact. See, e.g., Sevy v. Sec. Title Co. of S. Utah, 902 P.2d 629, 634 (Utah 1995); Andreini v. Hultgren, 860 P.2d 916, 919 (Utah 1993) (The point at which a person reasonably should know that he or she has suffered a legal injury is a question of fact.) Accordingly, we review for correctness, incorporating a clearly erroneous standard of review for the subsidiary factual determination of when the plaintiffs should have known of their alleged legal injuries. ¶ 33 Generally, a cause of action accrues `upon the happening of the last event necessary to complete the cause of action.' Berenda v. Langford, 914 P.2d 45, 50 (Utah 1996) (quoting Myers v. McDonald, 635 P.2d 84, 86 (Utah 1981)). Thus, statutes of limitations begin running upon the happening of the last event necessary to complete the cause of action. Burkholz v. Joyce, 972 P.2d 1235, 1236 (Utah 1998). In certain instances, however, the discovery rule tolls the limitations period until facts forming the basis for the cause of action are discovered. Id. at 50-51. The discovery rule applies: (1) in situations where the discovery rule is mandated by statute; (2) in situations where a plaintiff does not become aware of the cause of action because of the defendant's concealment or misleading conduct; and (3) in situations where the case presents exceptional circumstances and the application of the general rule would be irrational or unjust, regardless of any showing that the defendant has prevented the discovery of the cause of action. Warren v. Provo City Corp., 838 P.2d 1125, 1129 (Utah 1992) (footnote citations omitted). Under the discovery rule, `the limitations period does not begin to run until the discovery of facts forming the basis for the cause of action.' Berenda, 914 P.2d at 51 (quoting O'Neal v. Div. of Family Servs., 821 P.2d 1139, 1143 (Utah 1991) (quoting Myers, 635 P.2d at 86)). ¶ 34 Plaintiffs' complaint alleges breach of oral contract and requests specific performance, or, in the alternative, damages. The limitations period for bringing a claim for breach of an oral contract is four years. Utah Code Ann. § 78-12-25(1) (1996). Plaintiffs filed their complaint on January 25, 1999. Essential to our decision, therefore, is when the last event necessary to complete the cause of action for breach of contract occurred, i.e., when plaintiffs were on notice that the Warrs were not going to provide irrigation water as agreed. If this event occurred four years or more prior to when the complaint was filed, we must determine whether the discovery rule tolled the statute of limitations. ¶ 35 The statute of limitations for plaintiffs' breach of contract action began to run in late 1995. The trial court found that [i]n late 1995, the Warrs began contacting the plaintiffs and informing them that they could now have their quitclaim deeds to the water rights, but that they would have to pay between $2,500 and $5,000 for them. Thus, the plaintiffs knew or should have known that the Warrs were not going to deliver the irrigation water rights as promised, thereby breaching the agreement, as of late 1995, when the Warrs demanded that plaintiffs pay additional consideration for the water. ¶ 36 Inasmuch as the plaintiffs filed their complaint in January 1999, and the trial court found that the statute of limitations began to run when the plaintiffs knew or should have known that the Warrs were not going to deliver the irrigation water rights as promised in late 1995, the plaintiffs filed their complaint within the four year period. We therefore need not determine whether the statute of limitations was tolled for plaintiffs' breach of contract action.
+¶ 37 The Warrs argue the Lewises lack privity of contract to sue the Warrs. They argue the quitclaim deed from the Crittendens to the Lewises is not an assignment of rights, and therefore, the Lewises have no contractual claim against the Warrs. Plaintiffs respond by arguing that the Lewises are successors to the Crittenden's claims because the Crittendens, by quitclaim deed, conveyed all of their interests in the irrigation water to the Lewises. ¶ 38 Whether the Lewises received, by assignment, the Crittendens' contractual claim to the irrigation water rights is a question of law that we review for correctness, incorporating a clearly erroneous standard of review for these subsidiary factual determinations. See, Winegar v. Froerer Corp., 813 P.2d 104, 107-08 (Utah 1991). ¶ 39 An assignment is interpreted as is any other contract. Id. at 108. In interpreting a contract, the intentions of the parties are controlling. Central Florida Investments, Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 12, 40 P.3d 599. When presented with a written instrument, we look first to the four corners of the agreement to determine the parties' intentions. Id. If the language within the four corners in unambiguous, the parties' intentions are determined from the plain meaning of the contractual language. Id. If the instrument is ambiguous, the court may look to extrinsic evidence. Id. ¶ 40 The Lewis-Crittenden deed is unambiguous. We note again that in October 1997, the Lewises purchased their lot from the Crittendens who initially purchased it from the Warrs. Supra, n. 6. Later, in December 1999, the Lewises bargained for and received, by quitclaim deed, not only all water rights which the Lewises had appurtenant to or associated with the lot but also any contractual claims the Crittendens had against the Warrs. The Lewis-Crittenden deed reads, in relevant part: [The Crittendens], Grantors, hereby quitclaim all Grantors' right, title and interest, in any and all water or water rights, including without limitation, all wells, springs, ditches and reservoirs, appurtenant to or associated with that certain real property ... whether decreed or undecreed, tributary or nontributary, surface or underground, appropriated or unappropriated, and all shares of stock in any water company, and all well permits, water services, contracts, and other evidences of any such water rights, to [the Lewises]. (Emphasis added.) It is clear that the deed assigned to the Lewises the Crittenden's contractual interest in the irrigation water rights. Accordingly, the Lewises are entitled to bring against the Warrs any contractual action the Crittenden's could have brought, including the instant claim for the irrigation water rights.
+¶ 41 The Warrs argue that the trial court's judgment requiring them to convey to plaintiffs by quitclaim deed sufficient water from their interest in the Rose Spring to irrigate each of their five-acre lots, i.e., 0.079 cfs for each lot is unreasonable because they cannot guarantee they will be able to provide this amount of water each season. Plaintiffs counter that the judgment was not excessive. Plaintiffs assert that based on the testimony offered at trial, the amount ordered will reasonably irrigate five acres, as the plaintiffs were promised when they purchased their respective lots, sufficient water to irrigate their land. ¶ 42 Specific performance is a remedy of equity which is addressed to the sense of justice and good conscience of the court, and accordingly, considerable latitude of discretion is allowed in [the trial court's] determination as to whether it shall be granted and what judgment should be entered .... Morris v. Sykes, 624 P.2d 681, 684 (Utah 1981); see also LHIW, Inc. v. DeLorean, 753 P.2d 961, 963 (Utah 1988). Specific performance as a remedy will stand and will not be upset on appeal in the absence of an abuse of discretion. Morris, 624 P.2d at 684. ¶ 43 Plaintiffs request specific performance; their complaint requests an Order of specific performance requiring the Warrs to convey to plaintiffs their respective shares (7.5 cfs.) of the Subject Water and to complete the delivery system from Rose Spring to the Rocky Top Subdivision. In awarding to plaintiffs sufficient water ... to irrigate each of their five-acre lots, i.e., 0.079 cfs for each lot, the trial court considered what it determined the Warrs' contracted to provide plaintiffs, testimony from a professional engineer regarding how much water would be needed to irrigate five acres, and deeds the Warrs had prepared to convey the water rights. The trial court found that [t]he Plaintiffs established ... that the Warrs intended, marketed, and sold the Plaintiffs' lots in the Rocky Top Subdivision with irrigation water sufficient to irrigate five acres, and that the irrigation water rights were to be included in the price of the lots. Mr. Vern Loveless, a professional engineer, testified that .079 cfs of water would irrigate four and three-quarters acres; the remaining quarter acre would be maintained with non-irrigation water. Based on this testimony, the trial court determined that [t]he amount of water necessary to irrigate five acres is .079 cfs, or twenty acre feet. Finally, the deeds prepared by the Warrs indicate that they intended to convey seven and nine tenths percent (7.9%) of Change Application No. a-12993 which represents 0.0079 cfs from Rose Spring AKA Bryan Springs. (Emphasis added). Even though awarding a percentage of flow may seem sensible, given this information weighed by the trial court, we cannot say that the trial judge exceeded the permitted scope of discretion in granting specific performance and in entering the judgment it did.",analysis
+363,1599564,1,1,"
+This case involves the issue of whether the assumption-of-risk doctrine, a defense available in a personal-injury action, is also available in a spouse's loss-of-consortium action. This Court concludes that permitting its availability would be consistent with established Mississippi case law. In reaching this conclusion, this Court is cognizant of the seemingly- unquestionable viability of the assumption-of-risk doctrine in actions involving a sports injury and the questionable viability of the doctrine in actions involving a non-sports injury. Compare G. SCHUBERT, R. SMITH & J. TRENTADUE, SPORTS LAW § 7.4(A)(9), at 230 (1986) (contending that the doctrine is firmly rooted in sports law), with Harold v. Rolling J Ranch, 266 Cal. Rptr. 734, 218 Cal. App.3d 36, 218 Cal. App.3d 841A (1990) (noting that some states have decided to retain the doctrine, while others have either placed significant limitations on the doctrine or have altogether abolished it or allowed it to be subsumed by another doctrine such as comparative negligence). Accordingly, this opinion should be construed as potentially applying only to actions involving the assumption-of-risk doctrine and a sports injury. One day, the right case or cases will require ultimate disposition of whether the doctrine itself should remain partially or wholly viable and available under all, some, or no circumstance(s).
+On April 28, 1984, driver Joe T. Byrd (Joe) lost control of his car and spun out during a race at Jackson International Speedway. At that point, driver Bobby Glen Matthews struck Joe's car and, as a consequence, Joe incurred injuries. Joe subsequently filed a personal-injury action in Rankin County Circuit Court against Matthews and Allstate Insurance (Joe's uninsured motorist carrier). Presiding Judge Alfred Nichols ultimately directed a verdict in the defendants' favor after concluding that Joe's signing of a Release-and-Waiver-of-Liability-and-Indemnity agreement, as well as the assumption-of-risk doctrine, constituted a complete defense. Joe did not appeal; the judgment is final. Subsequent to the dismissal, Joe's wife, Patricia, filed an action against Matthews and Allstate for loss of consortium. This action was also dismissed via directed verdict. Judge Robert L. Goza based his decision on Patricia's failure to establish facts upon which [Joe] could recover. Goza explained that Patricia failed ... because the risk to which [Joe] was exposed was a foreseeable risk[, a]nd willing participants in a hazardous activity ... assume the ordinary and foreseeable risk incident to that activity. Judge Goza did not base his decision on Joe's signing of the Release-and-Waiver-of-Liability-and-Indemnity agreement. In reaching his decision, the judge premised: Although the release itself ... is not a bar per se of Mrs. Byrd's claim, nevertheless Mrs. Byrd must establish facts upon which Mr. Byrd could recover, absent the release.  Restated, Judge Goza concluded that the assumption-of-risk doctrine — applicable in Joe's negligence action — constituted a defense applicable in Patricia's consortium action. Patricia appealed and presented numerous issues, only one of which is reached: Whether an affirmative defense available in a personal-injury action is available in the other family member's action for loss of consortium?",introduction
+364,4255193,1,1,"¶29. Because the amended complaint stated negligence claims for the death of Randy Vermilyea, this Court affirms the trial court’s denial of the motion to dismiss and remands this case to the Jackson County Circuit Court for further proceedings. ¶30. AFFIRMED AND REMANDED. WALLER, C.J., KING, CHAMBERLIN AND ISHEE, JJ., CONCUR. MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN AND BEAM, JJ. RANDOLPH, P.J., NOT PARTICIPATING. 20",conclusion
+365,1808271,1,1,"Defendant's first argument is that taking the evidence as a whole, it was insufficient to support the verdict finding him guilty of felony murder. When the evidence adduced at the trial is considered, the first assignment must be quickly overruled. To begin with, a person charged in a criminal case may be convicted on the basis of circumstantial evidence. See State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981). Furthermore, in determining the sufficiency of the evidence to sustain a conviction in a criminal prosecution, it is not the province of the Nebraska Supreme Court to resolve conflicts in the evidence, pass upon the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence, as such matters are for the jury. The verdict of the jury must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. See, State v. Wilkening, 222 Neb. 107, 382 N.W.2d 340 (1986); State v. Kakela, 218 Neb. 843, 359 N.W.2d 786 (1984); State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984). The evidence, when viewed in light of these rules, is more than sufficient to justify the case's being submitted to the jury and more than sufficient for the jury to find the defendant guilty of felony murder. Therefore, unless some other error is found, the decision of the jury finding defendant guilty of felony murder must be affirmed. (2) Amendment of § 27-505 and Cherie Palmer's testimony. As we have already noted, in Palmer II this court held that § 27-505, as it was then constituted, prohibited Cherie Palmer from testifying against her husband. At that time § 27-505 provided as follows: (1) Neither husband nor wife can be examined in any case as to any confidential communication made by one to the other while married, nor shall they after the marriage relation ceases to [sic] be permitted to reveal in testimony any such communication while the marriage subsisted except as otherwise provided by law. This privilege may be waived only with the consent of both spouses. After the death of one, it may be waived by the survivor. (2) During the existence of the marriage, a husband and wife can in no criminal case be a witness against the other. This privilege may be waived only with the consent of both spouses. (3) These privileges may not be claimed: (a) In any criminal case where the crime charged is rape, adultery, bigamy, incest.... Following our decision in Palmer II and before the subject trial, the Nebraska Legislature amended § 27-505, and in particular amended subsection (3) to provide as follows: These privileges may not be claimed: (a) In any criminal case where the crime charged is a crime of violence, bigamy, incest.... See § 27-505 (Reissue 1985). While defendant raises some issue as to the meaning of the amendment (a matter which we will later discuss), it nevertheless appears fairly clear that unless by adopting L.B. 696 and amending § 27-505, the Nebraska Legislature has adopted an ex post facto law and thereby violated defendant's constitutional rights, Mrs. Palmer was properly permitted to testify. Both U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16, clearly provide that no ex post facto law may be passed. What is not so clear, however, is what constitutes an ex post facto law. The Latin phrase ex post facto means literally a thing done afterward. Webster's Third New International Dictionary, Unabridged 802 (1981). In a general sense an ex post facto law is one which renders an act punishable in the manner in which it was not punishable when it was committed. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L.Ed. 162 (1810). The traditional justification for prohibiting retroactive laws is that such laws are contrary to the first principles of the social compact, and to every principle of sound legislation. The Federalist No. 44, at 349 (J. Madison) (J. Hamilton ed. 1882). At first blush this would seem to prohibit anything from being done after an act is committed. However, an examination of the history as it relates to the doctrine of ex post facto and the cases which have been decided from the earliest of times leads to the conclusion that not all retroactive legislation is in violation of the prohibition against ex post facto laws. The clause, as it has been interpreted, applies principally, if not exclusively, to criminal laws or laws impacting criminal prosecutions. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). The most frequently stated rendition of the ex post facto prohibition is that a legislature may not enact any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.... Cummings v. The State of Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1867). Approximately a decade after the ratification of the Constitution, the U.S. Supreme Court was called upon to construe the ex post facto clause. See Calder v. Bull, supra . In doing so the U.S. Supreme Court held that a Connecticut resolution setting aside the decree of the probate court and granting a right of appeal where one had not previously existed did not offend the ex post facto clause. This ruling was somewhat modified by a later decision in Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883). The case most relevant, however, to the instant case is the case of Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). Hopt was charged with first degree murder. At the time the crime was committed, the Utah criminal procedure act prohibited the admission of testimony of convicted felons. Prior to trial, the Utah Legislature repealed that provision, thereby removing any obstacle to the competency of convicted felons. At trial Emerson, a previously convicted accomplice, was allowed to testify. Following conviction, an appeal was ultimately taken to the U.S. Supreme Court. The Court held that the repeal of the felon competency rule after the commission of the offense but before trial was not an ex post facto law. After discussing Kring, supra, the Court noted that Kring had been deprived of a substantial right possessed by him at the time the offense was committed. The Court went on to distinguish Hopt's situation, noting: But there are no such features in the case before us. Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed. The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offence was committed, might, in respect of that offence, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt, but—leaving untouched the nature of the crime and the amount or degree of proof essential to conviction— only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury, can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offence charged. Hopt v. Utah, supra at 589-90, 4 S.Ct. at 209-10. Similarly, in the instant case nothing done by the Legislature in amending § 27-505 created any criminal act, nor altered the standard of proof necessary for conviction, nor altered the punishment prescribed for committing the crime. The decision in Hopt, supra, is wholly consistent with our holdings in this jurisdiction to the effect that no one has a vested right in a procedure and that procedural matters can be changed at any time before trial and are binding on the defendant. See, State v. Shiffbauer, 197 Neb. 805, 251 N.W.2d 359 (1977); Durousseau v. Nebraska State Racing Commission, 194 Neb. 288, 231 N.W.2d 566 (1975). The holding in Hopt, supra, was further affirmed by the U.S. Supreme Court decision in Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898). Thompson was a case very similar to the case at bar. Thompson was charged with first degree murder. After conviction the Missouri Supreme Court reversed, holding the admission of certain writing samples for comparative purposes to be prejudicial error. Prior to his retrial, the Missouri Legislature enacted a statute allowing admission of such evidence. The same samples were then admitted in the second trial. Thompson was convicted, and the Missouri Supreme Court upheld the conviction. On appeal the U.S. Supreme Court held that the subsequent legislative change of the rules of evidence regarding writing samples for comparative purposes did not violate the ex post facto prohibition of the federal Constitution. The Court admitted that a number of cases containing language supporting Thompson's ex post facto argument could be found, but, [a]pplying the principles announced in former cases—without attaching undue weight to general expressions in them that go beyond the questions necessary to be determined, 171 U.S. at 386, 18 S.Ct. at 924, the U.S. Supreme Court held that the rights abrogated were not substantial enough to render retroactive application of the statute unconstitutional. In doing so the Court said at 387, 18 S.Ct. at 924: If persons excluded, upon grounds of public policy, at the time of the commission of an offence, from testifying as witnesses for or against the accused, may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offence was committed. Four states have previously considered whether a change in the marital privilege statutes constitutes an ex post facto law, and in each instance determined that it does not. See, Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977); State v. Clevenger, 69 Wash.2d 136, 417 P.2d 626 (1966); Ritchey v. State, 407 S.W.2d 506 (Tex.Crim.1966); Wester v. The State, 142 Ala. 56, 38 So. 1010 (1905). As part of his ex post facto argument, defendant raises two other related issues. He maintains that, in any event, L.B. 696 is unconstitutionally vague because there is no definition of crime of violence. Furthermore, he argues that the exceptions adopted by L.B. 696 apply only in cases where the spouse or child is the other party. The vagueness argument is controlled by the rule that in the absence of anything indicating the contrary, statutory language is to be given its plain and ordinary meaning. State v. Carlson, 223 Neb. 874, 394 N.W.2d 669 (1986). By that standard a crime is an act or omission for which one is subject to punishment by public authority. See Webster's Third New International Dictionary, Unabridged 536 (1981). By that same standard violence is the exertion of physical force so as to injure or abuse. Id. at 2554. Thus, crime of violence is an act which injures or abuses through the use of physical force and which subjects the actor to punishment by public authority. This court has said that robbery is a crime of violence. Draper v. Sigler, 177 Neb. 726, 131 N.W.2d 131 (1964). Certainly, then, murder is a crime of violence. Com. v. Ferrer, 283 Pa.Super. 21, 423 A.2d 423 (1980); People v. Manns, 12 Mich.App. 543, 163 N.W.2d 232 (1968). Accordingly, L.B. 696 is not vague. Defendant's argument regarding the application of L.B. 696 is that the crimes described in § 27-505 apply only to cases where one spouse commits a crime against the other spouse. Therefore, according to him, L.B. 696 applies only where one spouse commits a crime of violence against the other spouse. We do not read either the history of the amendment nor the language itself to so limit § 27-505 as amended by L.B. 696. The clear meaning of the statute is that the privilege may not be claimed where the crime charged is a crime of violence, bigamy, incest, or any crime committed by one against the person or property of the other. (Emphasis supplied.) Defendant's argument flies in the face of the clear meaning of the statute. If defendant's argument were correct, there would have been no need for the enumeration of not only crimes of violence but those of bigamy and incest as well, crimes which cannot be committed except by one spouse against the other or upon some other member of the family. Nothing within L.B. 696, as it amended § 27-505, limits crimes of violence to acts committed by one spouse against the other spouse. The words are clear and require no interpretation. We have consistently held that where the language of a statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language. See Palmer II. See, also, Kellogg Company v. Herrington, 216 Neb. 138, 343 N.W.2d 326 (1984); State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981). L.B. 696, as it amended § 27-505, is clear and unambiguous and applies to all crimes of violence, regardless of who the victim may be. This assignment of error is therefore without merit and must be overruled.",sufficiency of the evidence
+366,862316,1,1,"I. Whether the trial court erred in refusing the appellant a trial by jury. ¶2. The State confesses reversible error in the present case, acknowledging that the trial court erred in refusing Harkins' request for a jury trial.(1) Uniform Rules of Circuit and County Court Practice 12.02(c) provides in part that [i]n appeals from justice or municipal court when the maximum possible sentence is six months or less, the case may be tried without a jury at the court's discretion ... Rule 12.02(c) thus only grants the trial court discretion to deny a defendant's request for a jury trial in cases in which the maximum possible sentence is six months or less. This provision is based upon United States Supreme Court decisions presumption that offenses carrying maximum sentences of six months or less are petty offenses to which the Sixth Amendment right to trial by jury does not apply. See e.g., Lewis v. United States, 516 U.S. 322 (1996); Blanton v. City of North Las Vegas, 489 U.S. 538 (1989); Baldwin v. New York, 399 U.S. 66 (1970)(plurality). ¶3. Harkins was tried pursuant to Miss. Code Ann. § 63-11-30(2)(b)(1996 & Supp. 1998), which provided (in its version effective July 1, 1995) for a statutory maximum sentence of one year for second offense D.U.I.: (b) Upon any second conviction of any person violating subsection (1) of this section, the offenses being committed within a period of ten (10) years, such person shall be fined not less than Six Hundred Dollars ($600.00) nor more than One Thousand Five Hundred Dollars ($1,500.00) and shall be imprisoned not less than ten (10) days nor more than one (1) year. It is thus apparent that the trial court committed reversible error in denying Harkins' request for a jury trial.(2) The judgment of the trial court is reversed, and the case is remanded for a trial before a jury. II. Whether the trial court erred in admitting a Certificate of Calibration of the intoxilyzer. III. Whether the trial court erred in admitting the results of the intoxilyzer test. III. Whether the trial court erred in allowing evidence of the horizontal gaze test. IV. Whether the verdict of guilty of DUI is supported by sufficient evidence. ¶4. Although the State acknowledges reversible error on the jury trial issue, both parties have requested that this Court address the trial court's decision to admit into evidence two certificates of calibration for the intoxilyzer used in the present case. Harkins objected to the admission of the certificates of calibration on the basis of the confrontation clause and Rule 701 and 702. Harkins argued that the State should have been required to present the testimony of the officer who conducted the calibration tests, and he argues that the admission of the calibration certificate without this testimony violated the confrontation clause. ¶5. This Court recently rejected an identical argument(3) in Zoerner v. State No. 96-KA-00318-SCT, (Miss. June 18, 1998), noting that: Zoerner contends that his right to confrontation was violated by the introduction of these certificates, in the absence of the calibrating officer. However, this argument was squarely rejected in the recent case of McIlwain v. State, 700 So.2d 586 (Miss. 1997). Therefore, Zoerner's argument is without merit. Zoerner, at 15. In addition to his confrontation clause objection, Harkins argues that the calibration certificate constitutes hearsay evidence which was improperly admitted by the trial court. The State acknowledges that the certificate constituted hearsay but argues that the evidence properly falls under the business records exception and/or the public records exception to the hearsay rule. See: M.R.E. 803(6) and M.R.E. 803(8)(4). This Court concludes that the calibration certificate was admissible under the business records exception to the hearsay rule, and it is accordingly unnecessary to address the State's argument that the certificates also were admissible under the public records exception. ¶6. Mississippi Rules of Evidence 803 provides in part that: The following are not excluded by the hearsay rule, even though the declarant is unavailable as a witness: (6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or other qualified witness or self-authenticated pursuant to Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term business as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. ¶7. We conclude that the actions of a calibration officer in performing his customary role of certifying the calibration of intoxilyzers properly falls under the business records exception to the hearsay rule in Rule 803(6), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Thus, the State should properly be permitted to introduce calibration certificates without violating the hearsay rule unless the defendant is able to demonstrate some reason why the presumption of trustworthiness generally granted to business records should not apply in a particular case. ¶8. In Brown v. State, 485 S.E.2d 486 (Ga. 1997), the Supreme Court of Georgia analyzed both the hearsay and confrontation clause issues raised by the defendant with regard to the admission of calibration certificates, and this case is thus particularly relevant to the case at bar. With regard to the hearsay issue, the Court unanimously concluded that the certificates were properly admitted under the business records exception to the hearsay rule: It thus appears that the breath-testing device certificates provided for in [the applicable Georgia statute] are merely memorials of the fact that all required calibration tests were made and that a particular device passed the tests. Although these certificates are used in litigation, that is not their sole purpose or function. ... The record reveals that the breath-testing device certificates are routinely promulgated and maintained. They uncontrovertedly are not made in response to litigation against any one particular individual .... We therefore conclude that, in the usual circumstance, breath-testing device certificates are records made within the regular course of business ... and may, upon the proper foundation being laid, be introduced into evidence under the business records exception to the hearsay rule. ... Brown, 485 S.E.2d at 489. ¶9. The Georgia Supreme Court in Brown also unanimously concluded that, in view of the firmly rooted nature of the business records hearsay exception, the admission of calibration certificates without the testimony of the calibrating officer did not violate the confrontation clause under applicable United States Supreme Court decisions. The Court held that: The hearsay rule is not co-extensive with the confrontation clause. ... However, the U.S. Supreme Court has held that [o]ur precedents have recognized that statements admitted under a `firmly rooted' hearsay exception are so trustworthy that adversarial testing would add little to their reliability. Idaho v. Wright, 497 U.S. 805 (1990). Because the breath-testing device certificates provided for in [the applicable Georgia statute] come from within the firmly rooted hearsay exception for business records, we hold that the certificates may upon a proper foundation being established be admitted at trial without violating a defendant's right of confrontation under the Federal and State constitutions. We note that our ruling is consistent with the conclusion reached by numerous other states that have addressed the issue(5). 485 S.E.2d at at 489-90. ¶10. This Court finds the view expressed by the Georgia Supreme Court in Brown to be persuasive. We hold that the admission of calibration certificates without testimony from the calibration officer does not, in general, violate either the hearsay rule or the confrontation clauses in the Mississippi or United States constitutions, as long as the proper foundation is laid. Given the disposition of these issues, this Court need not address Harkins' remaining issues, including his assertion that the verdict of guilty was against the overwhelming weight of the evidence. ¶11. The judgment of the trial court is reversed, and this case is remanded for further proceedings consistent with this opinion. ¶12. REVERSED AND REMANDED. SULLIVAN AND PITTMAN, P.JJ., BANKS, SMITH, MILLS AND WALLER, JJ., CONCUR. McRAE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.",issues
+367,1231965,1,1,"Presented is the validity of a post-divorce decree stipulated modification entered into by appellant, Kent Jessen (husband) and appellee, Tina Jessen (wife), which requires husband to make very substantial late charge payments to wife in the event husband continues to be late in making his child support payments. Husband had paid nearly every support payment late, if paid at all. The district court, in a hearing on a notice to show cause, found husband in contempt for failure to make child support payments and entered a judgment in favor of wife for past due child support and late charges (compounded interest) totalling $13,275. At the time of husband's initial appeal, he had not purged himself of the contempt even to the extent of satisfying delinquent child support obligations. This court computed the total amount of child support remaining unpaid through October 1, 1990 as $3,483.71, with additional amounts of $325 due in November and $325 due in December. Based on our decision in Connors v. Connors, 769 P.2d 336 (Wyo. 1989), we retained jurisdiction and temporarily remanded to the district court for a period of two months from the date of publication of the opinion, December 20, 1990, to allow husband to pay the outstanding child support payment obligations in order to purge himself of the contempt. [1] Jessen I, 802 P.2d 901. If husband did not purge his contempt status, the order of the district court would have become final and wife would have been allowed to enforce the entire judgment of April 13, 1990 in accord with its terms. Having received confirmation that husband brought the outstanding child support payments current within the specified two month period, this court now proceeds to determine the further pending appellate issues raised by husband.",introduction
+368,2517630,1,1,[¶2] We find this issue to be dispositive: Did the district court properly apply the tort of negligent misrepresentation to reduce the payoff amount on the mortgage?,issues
+369,865212,1,2,¶9. This Court will consider: (1) Whether the circuit court erred in granting Progressive’s motion to dismiss Mitchell’s complaint.,issues
+370,884857,1,2,"¶ 11 The District Court dismissed Brewington's claim pursuant to Rule 12(b)(6), M.R.Civ.P., based on its conclusion that the complaint failed to state a claim for which relief could be granted. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Trankel v. State of Montana (1997), 282 Mont. 348, 350, 938 P.2d 614, 616 (citation omitted). In Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317 we stated: A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true. The determination that a complaint fails to state a claim upon which relief can be granted is a conclusion of law. Trankel, 282 Mont. at 351, 938 P.2d at 616. We review a district court's conclusions of law to determine whether the court's interpretation of the law is correct. Trankel, 282 Mont. at 351, 938 P.2d at 616.",standard of review
+371,891574,1,17,"{68} We reverse the Court of Appeals and remand to the district court for further proceedings consistent with this opinion. {69} IT IS SO ORDERED. WE CONCUR: EDWARD L. CHÁVEZ, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES and CHARLES W. DANIELS, Justice.",conclusion
+372,2274864,1,5,"Calhoun contends that Maryland Code (1957, 1982 Repl. Vol.) Art. 27, § 413 (e) (1) provides that one may not be punished by death absent proof that he was a principal in the first degree to first degree murder. He also says, correctly, that under State v. Ward, 284 Md. 189, 197, 396 A.2d 1041 (1978), a first degree principal is one who actually commits a crime. Then he cites Bedford v. State, 293 Md. 172, 443 A.2d 78 (1982), and asserts that in order to justify the sentence of death, the State was bound to adduce evidence sufficient to permit a rational trier of facts to find beyond a reasonable doubt that [Calhoun] fired the shots which killed Officer Metz. We pointed out in Bedford: Applying [the] standard under Jackson [v. Virginia], 443 U.S. 307, [99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)], Chief Judge Murphy said for the Court in State v. Rusk, 289 Md. 230, 240, 424 A.2d 720 (1981), The applicable standard 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. 443 U.S. at 319 (emphasis in original). Accord, Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830 (1980). 293 Md. at 175-76 (footnote omitted). [4] On the burden of proof see also Veney v. State, 251 Md. 182, 201, 246 A.2d 568 (1968), cert. denied, 394 U.S. 948 (1969), a capital case, where we referred to Pressley v. State, 244 Md. 664, 667, 224 A.2d 866 (1966), as to the sufficiency of evidence, and Ramsey v. State, 239 Md. 561, 566-67, 212 A.2d 319 (1965), as to our function as an appellate court as to sufficiency of the evidence. We have already recited the evidence. Cummins described how Metz was pulled into the doorway. When less than a minute later Cummins was dragged into the office he observed Metz lying on the floor and bleeding from the head. Calhoun was alone in the room with Cummins and Metz' body at that time. Calhoun's contention relative to insufficiency is the existence of a door in the office that led to the outside. He claims that a third person might have fired the shots and then escaped from the room in question by that door. Yet Calhoun and the man who shot Cummins saw fit to escape through the roof. A rational trier of fact certainly could find that Calhoun was the only one present who could have killed Metz and that, if the robbers were aware of a quick method of escape through the door, Calhoun and his cohort would not have seen fit to go through a hole in the roof. We hold that there was sufficient evidence to conclude that Calhoun was a principal in the first degree.",sufficiency of the evidence
+373,861927,1,1,"¶52. The contempt proceedings against Terry, McIlwain, and Evans should not have been heard by Judge Bogen because he was instrumental in bringing the constructive contempt charges against the three, and because of the discussion of his need to recuse himself. The failure of Judge Bogen to invoke the rule was not reversible error because the appellants did not show how they were prejudiced by his failing to do so. Evans was improperly charged with contempt because she did not fall under the contempt power of the court as a detached third party. Additionally, Evans was denied her right to counsel because Judge Bogen proceeded without informing her of her right to seek the advice of an attorney and the ramifications if she did not seek one. ¶53. REVERSED AND RENDERED AS TO ALL APPELLANTS. PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, SMITH, MILLS AND WALLER, JJ., CONCUR. 1. McIlwain was being held in contempt for violation of Rule 4.01 of the Uniform Criminal Rules of Circuit Court Practice, which provides: The defense counsel, prosecuting attorneys, law enforcement officials, clerks, deputy clerks, and other officers of the court, shall not release nor authorize release of any statement for dissemination by any means of public communication any matter concerning:",conclusion
+374,2781965,1,1,"[¶3] The LLC is a limited liability company organized under the laws of the State of Wyoming and listing its principal place of business in Laramie County, Wyoming.2 During 2010, Mr. Todosijevic and Mr. Vukov, who are residents of Belgrade, Serbia, each held a 50% membership interest in the LLC.3 The LLC organized several 1 Mr. Todosijevic also sought an order requiring the LLC to provide access to company records, judicially dissolving the LLC, appointing a custodian and receiver pending dissolution and enjoining Mr. Vukov from selling or transferring LLC assets. The district court granted summary judgment for the LLC on these claims. No appeal was taken from the order as to these claims. The one remaining matter left for trial was Mr. Todosijevic’s claim that Mr. Vukov breached the implied covenant of good faith and fair dealing. On Mr. Todosijevic’s motion, the district court dismissed the claim. 2 The district court noted in its decision letter that Montana Food, LLC does not conduct business in Montana or deal in food. The LLC also has no connection with Wyoming other than the fact that it was organized under Wyoming law, it filed its articles of organization with the Wyoming Secretary of State and it has a registered agent in Wyoming. 3 Mr. Todosijevic stated in an affidavit that he organized the LLC in 2007 and owned 100% of the company until 2010 when he transferred a 50% ownership interest to Mr. Vukov. Documentation 1 subsidiaries in Belgrade, including Delbin Investments, MD, LTD (Delbin). The LLC and its subsidiaries invested in buildings located in Belgrade with an eye toward developing them. [¶4] The LLC’s articles of organization provided that the LLC was manager-managed and named Maksim Stajcer, who was not a member of the LLC, as the manager. The articles of organization also provided that after the initial capital contribution of $10,000, “[a]dditional contributions shall be made at such times and in such amounts as may be agreed upon by the Members as provided in the Operating Agreement.” In late 2010, Mr. Vukov became concerned that he was the only member making additional contributions. He retained counsel in Serbia to investigate. The investigation apparently showed that Mr. Vukov had contributed 1,260,600 Euros while Mr. Todosijevic had made no additional contributions. Mr. Vukov issued a notice of meeting indicating that he wished to address the issue of capital contributions by the members as provided in the articles of organization and propose that any member who did not contribute to the LLC’s capital would be subject to a reduction of his ownership interest. Mr. Todosijevic claimed he did not receive the notice. In any event, he did not attend. At the meeting, Mr. Vukov adopted and approved resolutions showing his capital contribution of 1,260,600 Euros, increasing his ownership interest to 99.72% and reducing Mr. Todosijevic’s interest to 0.28%. Thereafter, Mr. Vukov amended the articles of organization by naming himself and his wife as the new managers of the LLC. [¶5] In late 2011, Mr. Todosijevic filed his complaint against the LLC and Mr. Vukov. Of the six causes of action contained in the complaint, this appeal concerns only Mr. Todosijevic’s claim that Mr. Vukov improperly adjusted the members’ ownership interests. The LLC filed a motion for summary judgment claiming there were no genuine issues of material fact as to any of Mr. Todosijevic’s claims, including the claim that Mr. Vukov lacked the authority to adjust the members’ ownership interests. The LLC asserted that after the initial $10,000 contribution the members were to make additional capital contributions. The LLC claimed that although Mr. Todosijevic represented that he was contributing additional funds, in fact only Mr. Vukov was making capital contributions. Upon learning that Mr. Todosijevic had made no contributions beyond the initial capital contribution, the LLC asserted Mr. Vukov properly gave Mr. Todosijevic notice of a meeting and his proposal to adjust the capital account and ownership percentages to reflect the reality of the amounts each member had contributed. When Mr. Todosijevic did not respond, the LLC asserted Mr. Vukov appropriately proceeded to execute a company resolution adjusting the capital account ownership percentages to reflect the members’ actual contributions. The LLC asserted the claims against Mr. Vukov should be dismissed as a matter of law because under applicable Wyoming law, absent an agreement to the contrary, the management and return of profit in an LLC is attached to Mr. Vukov’s affidavit indicates he was a 50% owner on the date the LLC was organized. In any event, there is no dispute that by 2010 each party owned 50% of the LLC. 2 determined by the members’ respective capital contributions. The LLC contended that once it was established that Mr. Vukov had made additional contributions and Mr. Todosijevic had not, Mr. Vukov was justified as a matter of law in taking action to adjust the members’ capital accounts. [¶6] Mr. Todosijevic asserted the LLC was not entitled to summary judgment because Mr. Vukov was without authority to unilaterally dilute Mr. Todosijevic’s ownership interest. He asserted that the consent of all members was required to change the members’ ownership interests. He contended he was entitled to judgment as a matter of law on that issue. [¶7] The district court found as a matter of law that Mr. Vukov, as an individual member, did not have contractual or statutory authority to adjust member ownership interests. In reaching that result, the district court looked first to the LLC’s articles of organization and operating agreement. Finding that neither of those documents addressed the question of whether a member had the authority to adjust ownership interests, the district court turned to the Wyoming Limited Liability Company Act, Wyo. Stat. Ann. §§ 17-29-101 through 1105 LexisNexis 2011). It focused on § 17-29-407(c), which addresses management of LLCs and provides in relevant part: (c) In a manager-managed limited liability company, unless the articles of organization or the operating agreement provide otherwise, the following rules apply: (i) Except as otherwise expressly provided in this chapter, any matter relating to the activities of the company is decided exclusively by the managers; (ii) Each manager has equal rights in the management and conduct of the activities of the company; (iii) A difference arising among managers as to a matter in the ordinary course of the activities of the company may be decided by a majority of the managers; (iv) The consent of all members is required to: (A) Sell, lease, exchange or otherwise dispose of all, or substantially all, of the company's property, with or without the good will, outside the ordinary course of the company's activities; (B) Approve a merger, conversion, continuance, transfer or domestication under article 10 of this chapter; (C) Undertake any other act outside the ordinary course of the company's activities; and (D) Amend the operating agreement. (Emphasis added.) 3 [¶8] Finding that the articles of organization and the operating agreement clearly provided that the LLC is manager-managed, the district court concluded this subsection applied. Because the underlined language makes it clear that consent of all members is required to undertake any act outside the ordinary course of the LLC’s activities, the district court concluded as a matter of law that Mr. Vukov did not have the statutory authority to change member ownership interests without the consent of Mr. Todosijevic. Implicit in the district court’s holding is the finding that changing member ownership interests is an act outside the ordinary course of the LLC’s activities. On this basis, the district court denied the LLC’s motion for summary judgment on the issue of Mr. Vukov’s authority to adjust ownership interests and granted Mr. Todosijevic’s motion on that issue. [¶9] The district court also concluded genuine issues of material fact existed on the claim against Mr. Vukov for breach of the implied covenant of good faith and fair dealing, and denied the LLC’s motion as to that claim. Thereafter, Mr. Todosijevic filed a motion to dismiss the claim on the ground that it was not fiscally practicable to pursue it to trial. The district court granted the motion and dismissed the claim. The LLC appealed asserting that the district court’s conclusion on summary judgment that Mr. Vukov had no authority to adjust the membership interests was incorrect.",facts
+375,6497218,1,1,"Z.H. seeks reimbursement from the Nebraska State Bar Commission (Bar Commission) for costs and damages associated with her application for admission to the Nebraska State Bar Association. For the reasons stated herein, we conclude that we lack jurisdiction to hear the appeal and the appeal is dismissed.",introduction
+376,2758887,1,3,"Based upon the foregoing, the Judgment of the Court of Chancery is AFFIRMED in part and REVERSED in part. 126 See, e.g., Levitt Corp. v. Office Depot, Inc., 2008 WL 1724244, at  (Del. Ch. Apr. 14, 2008) (“[N]ominating candidates and voting for preferred candidates are separate steps.”). 58",conclusion
+377,6220976,1,2,"County Court Trial Proceedings The State charged Johnson with bigamy, contending that when he married Natalie Forney he was already married to Shelley Petersen. Defense counsel argued that Johnson’s marriage to Petersen was not a valid marriage because it did not comply with statutes in Nebraska or Texas. The county court held a bench trial, at which the parties stipulated to the exhibits, including an exhibit setting forth what the witnesses would testify to, if called. Next, we summarize that evidence. On June 29, 2015, Johnson and Petersen completed a marriage worksheet at the Lancaster County clerk’s office in Nebraska and paid the requisite fee. Tory Carkoski, a front desk clerk at the Lancaster County clerk’s office, watched Johnson and Petersen sign a Nebraska marriage license and notarized their signatures. On July 4, 2015, Johnson’s sister, an ordained minister, performed a wedding ceremony for Johnson and Petersen in Texas. Johnson’s sister signed a “Keepsake Marriage Certificate,” but she did not sign or return the Nebraska marriage license. Johnson’s sister claimed that she later threw away the marriage license at Johnson’s request. Johnson and Petersen returned to Nebraska and resided together. They had an “on again - off again relationship.” Carkoski recalled having repeated and frequent contact with the couple within a few weeks of producing the June 29, 2015, marriage license for them. During that time, Petersen 1 See Neb. Rev. Stat. § 28-701(1) (Reissue 2016). - 530 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. JOHNSON Cite as 310 Neb. 527 called at least 10 times to inquire whether the marriage license had been returned. Petersen informed Carkoski that although she was able to change her surname with the Social Security Administration using the keepsake marriage certificate, she wanted a certified copy of the license in order to “change her information” with the Nebraska Department of Motor Vehicles. During this timeframe, Johnson told Carkoski that he did not want to be married and inquired how to “prevent the marriage from going through.” Carkoski responded that “if they had already filled out the documentation and had the ceremony, they were married.” In late 2016 or early 2017, Carkoski notified the records administrator of the Lancaster County clerk’s office that the marriage license between Johnson and Petersen had not been filed. When the records administrator determined that no marriage license was filed for the 2015 marriage, she called Johnson’s sister and informed her that a replacement marriage license would be sent which needed to be signed and returned. Johnson and Petersen returned to the Lancaster County clerk’s office, signed a copy of the replacement marriage license, and had Carkoski notarize their signatures. Subsequently, the marriage license was returned and filed with the Lancaster County clerk’s office in January 2017. The license contained signatures of Johnson’s sister and two witnesses. It stated that Johnson and Petersen were married on July 4, 2015, in Lancaster County, Nebraska. At some point, possibly as late as May 2018, Johnson moved out of the residence he shared with Petersen. Screenshots of text messages between them, some of which were sent in September, showed that Johnson referred to himself as Petersen’s husband and to her as his wife. On November 5, 2018, Carkoski received a marriage worksheet for Johnson and Forney. On November 16, a signed marriage license was filed with the Lancaster County clerk’s office showing that Johnson married Forney in Lancaster County on November 15. - 531 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. JOHNSON Cite as 310 Neb. 527 In 2019, Petersen attempted to file her income taxes as married filing jointly with Johnson. The Internal Revenue Service notified her that she could not do so because Johnson had filed income taxes as married filing jointly with Forney. Petersen notified the police department, and an investigation uncovered two marriage certificates on file at the Lancaster County clerk’s office but no intervening divorce. When a police officer spoke with Johnson, he said that he and Petersen were going to get married but never did. At the trial’s conclusion, the county court took the matter under advisement to allow the parties to file briefs, which are not in our record. The court later convicted Johnson and subsequently imposed a sentence of 30 days in jail. Appeal to District Court Johnson appealed to the district court, challenging the sufficiency of the evidence. Citing Neb. Rev. Stat. § 42-104 (Reissue 2016), the district court stated that there were only two requirements for a valid marriage under Nebraska law: a marriage license and solemnization of the marriage by a person authorized by law to solemnize marriages. The court stated that “[t]he evidence unequivocally validates [Johnson’s] marriage to [Petersen]” and affirmed Johnson’s conviction. Johnson then appealed to the Nebraska Court of Appeals. We later granted the State’s petition to bypass review by the Court of Appeals. 2 ASSIGNMENT OF ERROR Johnson assigns that the district court erred in affirming the county court’s finding that the State proved him guilty of bigamy beyond a reasonable doubt.",facts
+378,853423,2,1,"Tunstill first argues that the evidence did not support the finding that he is an habitual offender because the State failed to establish that the present offense occurred after his two prior felonies. (Appellant's Br. at 7.) [2] During the habitual offender trial, the State introduced a certified copy of the original arrest report that indicated that Tunstill was arrested on October 3, 1997, for a dealing in cocaine charge, with a cause number XX-XXXXXX. Tunstill was convicted of this crime when the court took his guilty plea earlier in the proceeding. Tunstill's sufficiency argument focuses on a moment during the habitual phase when the prosecutor asked Manship whether Tunstill was arrested on October 3, 1977 under cause number XX-XXXXXX for dealing in cocaine as a class A felony? (R. at 132) (emphasis added). Manship answered affirmatively. This answer, Tunstill contends, means that the State did not prove he committed his current crime after being sentenced on his 1997 offense. It is clear from the record that the prosecutor intended to question Manship regarding Tunstill's arrest on October 3, 1997. Both the crime and the cause number recited in the prosecutor's question related to Tunstill's most recent conviction. Inasmuch as the court had just taken Tunstill's plea to this offense, the State need not have proven again the date that the current offense was committed when the trier of fact during the habitual phase is the same trier that just found the defendant guilty. Smith, 543 N.E.2d at 636. The evidence was sufficient to find that Tunstill was an habitual offender.",sufficiency of the evidence
+379,1205942,1,2,"Utah Code Ann., 1953, § 78-3a-48 allows the State to terminate parental rights under certain enumerated circumstances. Section 78-3a-48, as constituted at the time of trial, [1] provided: (1) The court may decree a termination of all parental rights with respect to one or both parents if the court finds: (a) That the parent or parents are unfit or incompetent by reason of conduct or condition seriously detrimental to the child; or (b) That the parent or parents have abandoned the child. It shall be prima facie evidence of abandonment that the parent or parents, although having legal custody of the child, have surrendered physical custody of the child, and for a period of six months following such surrender have not manifested to the child or to the person having the physical custody of the child a firm intention to resume physical custody or to make arrangements for the care of the child... . The State must prove the parent's unfitness or abandonment by clear and convincing evidence. In re J.P., 648 P.2d 1364, 1377 (Utah 1982); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). We have reviewed the record and agree with the trial court that the State proved by clear and convincing evidence that the Andersons were unfit or incompetent and had abandoned the children. In opposition to the evidence set forth above, the Andersons proffered testimony that the Gilgens and the Larsens had not fully cooperated in allowing them to see the children and that the Andersons always desired custody of the children. The trial court's ruling against them is amply supported by the record. We agree with the trial court that J.C.O. and E.J.A. were abandoned. In In re J. Children, 664 P.2d 1158 (Utah 1983), we set forth the standard of review in abandonment cases and the definition of abandonment. We stated: In relation to this subject [abandonment], the clear and convincing test concerns both evidentiary support for a finding of fact and the level of persuasion on the reasonableness of a conclusion.... Our scope of review of a reasonableness determination such as this was defined in Hall v. Anderson, Utah, 562 P.2d 1250, 1251 (1977), quoted with approval in McKinstray v. McKinstray, 628 P.2d [1286] at 1288, as follows: [I]f evidence is such that reasonable minds may differ as to the conclusion to be drawn therefrom, it is the prerogative of the trier of facts to make the determination; and this Court should not interfere with that prerogative by disagreeing with the determination thus made. Id. at 1161. In In re J. Children, we defined abandonment as conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship. Id. at 1159 (citing Summers Children v. Wulffenstein, 560 P.2d 331, 334 (Utah 1977)). Abandonment may be proven by either objective evidence of the parent's conduct or by the expressed, subjective intent of the parent. Id. at 1159. This definition of abandonment is supplemented by U.C.A., 1953, § 78-3a-48(1)(b), which states that it is prima facie evidence of abandonment that a parent with legal custody surrenders physical custody of the child for six months without manifesting a firm intention to resume custody or make arrangements for the care of the child. The trial court was well within its prerogative in determining that J.C.O. and E.J.A. were abandoned. E.J.A. was in the Andersons' care only seventeen days before he was placed with the Larsens. The Andersons have never provided financially for the needs of either child, nor have they taken anything but the most superficial interest in the children's welfare. In short, there is no evidence upon which the trial judge could rely, except the Andersons' assertions that they have not abandoned the children, in holding that the prima facie evidence of abandonment had been rebutted; further, the evidence, unaided by the presumption, indicates that the Andersons had so consciously disregarded the children that any existing or potential parent-child relationship was destroyed by their behavior. The trial court's finding that the Andersons were unfit or incompetent is also amply supported by the record. The record indicates that J.C.O. was severely abused and neglected while in the Andersons' care; E.J.A. was clearly neglected during the seventeen days he spent under Marjorie's supervision. Further, the Andersons have at no time relevant to this proceeding maintained a stable home. They changed residences eighteen times between June 1980 and the trial of this action in October 1984. Paul has held innumerable jobs. Marjorie has been only randomly employed. Although at one point the pair claimed to have an income of over $2,000 a month, they have not paid anything toward the support of the children. The Andersons have been convicted of a number of criminal offenses, including welfare fraud. The fraud conviction was based on representations that J.C.O. and E.J.A. were living in the Andersons' home after the children had been placed with the Gilgens and the Larsens. Paul was in jail at the time of trial. An expert witness for the State testified that the Andersons are incapable of developing acceptable parenting skills. An expert witness presented by the State testified that Paul is a sociopath.",sufficiency of the evidence
+380,6322192,1,5,"[4,5] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the appeal. 7 For an appellate court to acquire jurisdiction of an appeal, there must be a final judgment or final order entered by the tribunal from which the appeal is taken. 8 Feik contends that the order appealed from is not a final order. [6,7] In probate proceedings, an appellate court applies the rubric of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) to determine whether an order is final. The relevant questions are whether the order was made during a special proceeding and affected a substantial right. 9 A proceeding under the Nebraska Probate Code is a special proceeding. 10 [8-10] We turn our attention to whether the order affected a substantial right. A substantial right is an essential legal right, not a mere technical right. 11 A substantial right is affected if an order affects the subject matter of the litigation, such as by diminishing a claim or defense that was available to an appellant before the order from which an appeal is taken. 12 Substantial rights under § 25-1902 include those legal rights that a party is entitled to enforce or defend. 13 [11] In the context of multifaceted special proceedings that are designed to administer the affairs of a person, an order that ends a discrete phase of the proceedings affects a substantial right because it finally resolves the issues raised in that 7 In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021). 8 In re Estate of Beltran, supra note 3. 9 Id. 10 See id. 11 Id. 12 Id. 13 In re Estate of Larson, supra note 7. - 988 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 phase. 14 Thus, a consideration regarding the finality of orders in probate cases is whether the order ended a discrete—that is, separate and distinct—phase of the proceedings. 15 A statute provides that “a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.” 16 Here, the probate court’s order appointing Kelly as personal representative ended a discrete phase of the probate proceeding. Moreover, the appointment order coupled with the issuance of letters of personal representative imposed fiduciary duties upon Kelly. 17 Because the order was made in a special proceeding and affected a substantial right, it was a final order. Appointment of Kelly as Personal Representative We next consider Kelly’s assignment of error alleging that the probate court “erred in appointing [her] as personal representative of the Estate because it lacked jurisdiction to make the appointment, [Kelly] objected to the appointment, and [she] did not accept the appointment as required by Nebraska Revised Statute § 30-2420.” During oral arguments, Kelly’s counsel argued in connection with this assignment that the letters were not effective. We understand Kelly’s assignment of error to encompass a challenge to the issuance of letters of personal representative to an appointee who refuses to qualify. Several probate statutes speak to qualification of a personal representative. One provides that “to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court 14 Id., citing John P. Lenich, What’s So Special About Special Proceedings? Making Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001). 15 In re Estate of Beltran, supra note 3. 16 Neb. Rev. Stat. § 30-2407(4) (Reissue 2016). 17 See Neb. Rev. Stat. § 30-2464 (Reissue 2016). - 989 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 or registrar, qualify and be issued letters.” 18 Another specifies that “the registrar . . . shall appoint the applicant subject to qualification and acceptance.” 19 Yet another states that “[p]rior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.” 20 The latter two statutes touch on another important component: acceptance. Acceptance of an appointment denotes consent to the appointment. 21 “Consent is the preliminary essential requirement for an appointment as an executor or administrator.” 22 The Utah Supreme Court addressed the necessity of consent in considering whether a court had the authority to compel an individual to serve as an administratrix against her will. 23 It found support for the requirement in its constitutional and statutory provisions: The Constitution of Utah prohibited “‘involuntary servitude,’” while a statute required that prior to issuance of letters testamentary or of administration “‘the executor, administrator or guardian must take and subscribe an oath that he will perform according to law the duties of executor, administrator or guardian, which oath must be attached to the letters.’” 24 The court explained the importance of appointing an individual willing to serve: A highly personal trust arises from an appointment as administrator and to compel one to serve against his will for the benefit of those to whom he has no obligation 18 Neb. Rev. Stat. § 30-2403 (Reissue 2016). 19 Neb. Rev. Stat. § 30-2420 (Reissue 2016). 20 Neb. Rev. Stat. § 30-2444 (Reissue 2016). 21 See “Accept,” Oxford English Dictionary Online, http://www.oed.com/ view/Entry/1006 (last visited Feb. 14, 2022) (“[t]o consent to”). 22 33 C.J.S. Executors and Administrators § 88 at 793 (2009). See Matter of Estate of Cluff, 587 P.2d 128 (Utah 1978). 23 See Matter of Estate of Cluff, supra note 22. 24 Id. at 129. - 990 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 would constitute a violation of public policy as well. It is necessary for the protection of estate heirs, creditors, and the general public that an administrator serve free from compulsion and that he only be allowed to serve when so willing. Generally speaking, only a willingness to serve is consistent with proper estate administration and the interest of the Court. 25 The Utah Supreme Court’s reasoning is persuasive. We need not discuss our own constitution, because our statute, as set forth above, requires that “a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.” 26 A consequence of acceptance is contained in a different statute: “By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person.” 27 With respect to acceptance, we find some parallels in our recent decision concerning a guardianship. 28 There, the county court directed that a ward’s parents be appointed as coguardians upon issuance of letters of guardianship and upon the parents’ filing, among other things, an acceptance of appointment. The parents never filed an acceptance. They appealed, assigning that the court erred in ordering them to serve as guardians over their objection. We agreed with the parents that “one who is not willing to serve as a private guardian cannot be compelled to accept such an appointment.” 29 And we 25 Id. at 129-30. 26 § 30-2444 (emphasis supplied). See, also, Neb. Ct. R. § 6-1446 (providing for appointment to be set aside where personal representative had been appointed but failed to qualify by filing required bond and acceptance within 60 days of appointment). 27 Neb. Rev. Stat. § 30-2445 (Reissue 2016). 28 See In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 (2021). 29 Id. at 11, 958 N.W.2d at 668. - 991 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 stated that “[o]nly after a written acceptance is filed and the guardian submits to the personal jurisdiction of the court will letters of guardianship be issued by the court.” 30 But in that case, because the parents never accepted the court’s appointment, no letters issued. In rejecting the assignment of error, we stated that “the appointment they assign as error was never completed and cannot be completed without their voluntary acceptance.” 31 The record is devoid of any statement of acceptance filed by Kelly. To the contrary, she filed an objection “as nominated personal representative” to the application for informal appointment of personal representative in intestacy and asked the court to dismiss the application. At oral argument, Feik conceded that no acceptance had been filed by Kelly. [12-14] As we stated with respect to a private guardian, it follows that one who is not willing to serve as a personal representative cannot be compelled to accept such an appointment. Without acceptance by one appointed personal representative, there can be no qualification. 32 And the Nebraska Probate Code requires qualification of a personal representative before the issuance of letters. 33 In other words, in the absence of qualification, the issuance of letters as part of the appointment proc­ ess is not authorized by statute. Here, the court issued letters to Kelly without her qualification. Because this action was not statutorily authorized, we reverse the order directing issuance of letters and the letters issued in accordance with that order, and remand the cause for further proceedings. [15] We express no opinion on the validity or effect of any actions taken in reliance upon the letters issued to Kelly. 30 Id. 31 Id. at 11-12, 958 N.W.2d at 669. 32 See § 30-2444. 33 See §§ 30-2403, 30-2420, and 30-2444. - 992 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 Such questions may well exist, but they are beyond the scope of the present probate proceeding. In the absence of an actual case or controversy requiring judicial resolution, it is not the function of the courts to render a judgment that is merely advisory. 34 And to the extent that the reasoning of the county court conveyed in an order within the probate proceeding may seem to express an opinion on matters outside the scope of the appointment proceeding itself, we reverse those portions of the probate court’s order. Statute of Limitations Kelly also argues that § 30-2408 prohibited the commencement of the appointment proceeding. The parties agree that it was commenced more than 3 years after Severson’s death and that no prior appointment or probate proceeding had occurred. But Kelly contends that no exception under § 30-2408 applies while Feik relies upon the exception in subsection (4), which states that “an informal . . . appointment proceeding may be commenced thereafter if no formal or informal proceeding for probate or proceeding concerning the succession or administration has occurred within the three-year period, but claims other than expenses of administration may not be presented against the estate.” We agree with Feik. [16] The exception applies because no such proceeding had occurred within the 3-year period. Statutory language 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 unambiguous. 35 Over a decade ago, we declared that “[§] 30-2408 clearly permits an informal appointment proceeding to be commenced more than 3 years after the decedent’s death ‘if no formal or informal proceeding for probate or proceeding concerning the succession or administration has occurred 34 State ex rel. Peterson v. Ebke, 303 Neb. 637, 930 N.W.2d 551 (2019). 35 In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007). - 993 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 within the three-year period.’” 36 Thus, a proceeding could be commenced here to appoint a personal representative. We read the clause regarding “claims other than expenses of administration” as limiting the scope of the proceeding rather than its commencement. 37 Remaining Assignments of Error [17] Because we reverse the order directing issuance of letters of personal representative and remand the cause for further proceedings, we need not consider Kelly’s other assigned errors. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 38",jurisdiction
+381,2148871,1,9,"Isaacs next contends there was insufficient evidence that he committed battery, a Class C felony. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995), reh'g denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if evidence of probative value exists from which a jury could find the defendant guilty beyond a reasonable doubt. Id. The Indiana Code states that [a] person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery .... a Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon. IC XX-XX-X-X. Isaacs argues that the evidence presented at trial was insufficient to prove that he committed battery by means of a deadly weapon. A review of the record reveals that Larissa testified that when Isaacs entered the bedroom, he was holding a butcher knife. When a police officer arrived at Isaacs' house, Larissa told him that Isaacs had a knife. Freddie testified that Isaacs hit him with something hard. On cross-examination, Freddie further testified that Isaacs hit him with whatever Isaacs had in his hand. From this evidence, the jury could reasonably infer that Isaacs committed battery by means of a deadly weapon. Moreover, the battery statute requires proof of the battery by means of a deadly weapon or having resulted in serious bodily injury. IC XX-XX-X-X. Here, there was also evidence presented which would have allowed the jury to conclude that the battery resulted in serious bodily injury, which is defined as bodily injury that creates a substantial risk of death or that causes unconsciousness or extreme pain. IND.CODE § 35-41-1-25 (1988). Freddie testified that he was knocked unconscious after Isaacs hit him with something hard. The emergency room physician testified that Freddie suffered from a concussion and a fractured nose. From this evidence, the jury could have concluded that the object in Isaacs' hand inflicted serious bodily injury. Thus, there was sufficient evidence presented from which the jury could have inferred either that the battery resulted in serious bodily injury or that it was committed by means of a deadly weapon, or both. We find no error here.",sufficiency of the evidence
+382,860955,1,4,"A. A high school principal consciously disregarded his school district's position regarding a legal issue, as stated to him on four occasions by the district's attorney. As a result, the school board suspended the principal for lack of professional judgment pursuant to Miss. Code Ann. § 37-9-59 (1990), which permits suspension for incompetence, neglect of duty, immoral conduct, intemperance, brutal treatment of a pupil or other good cause. The question is whether lack of professional judgment can qualify as other good cause under § 37-9-59. B. In setting aside the school board's action, the Chancery Court based its decision on the constitutionality of the principal's decision to allow a student to recite a prayer over the school's intercom system. Did the Chancery Court err by not applying the standard of review mandated by state law and instead basing its decision on an issue that was not before the court? C. Was the school board's decision to suspend the principal supported by substantial evidence and not arbitrary or capricious? ¶8. The Board's points of error are combined as they all deal with the issue of whether the suspension of Knox was properly overturned on appellate review by the Chancery Court. The primary issue in the present appeal centers around whether the Board acted within the authority granted it by Miss. Code Ann. § 37-9-59 in suspending Knox for his actions in permitting the reading of the prayers. In spite of the fact that the present case tangentially involves the much-litigated and discussed issue of the constitutionality of school prayer, the present case is in actuality one of statutory interpretation. Miss. Code Ann. §37-9-59, Suspension or removal of principal or teacher; prohibited grounds for denying employment or reemployment, provides that: For incompetence, neglect of duty, immoral conduct, intemperance, brutal treatment of a pupil or other good cause the superintendent of schools may dismiss or suspend any certificated employee in any school district. This Court noted in Madison County Board of Education v. Miles, 173 So.2d 425 (Miss. 1965) that the legislative intent in enacting this section was to make teachers and principals reasonably secure in their jobs and subject to removal only for serious causes. ¶9. In Merchant v. Board of Trustees of Pearl Mun. Separate School. Dist, 492 So.2d 959 (Miss. 1986) this Court affirmed the dismissal by a school board of a coach for a variety of insubordinate actions, including repeated violations of school financial policies. Specifically, this Court found that the coach had failed to account for monies belonging to the system by selling football jerseys to senior members of the team without authority and without turning the money into the district. Merchant, 492 So.2d at 963. This Court noted that: Considering in the aggregate the matters outlined above, we have no authority to reverse. No objective observer could doubt that there was before the School Board substantial credible evidence suggesting the correctness of each finding. Nor could an objective observer dispute that the Board, considering these findings in the aggregate, could reasonably have concluded that incompetence, neglect of duty, and insubordination justif(y) dismissal within Miss. Code. Ann. §37-9-59 (Supp. 1985). Merchant, 492 So.2d at 963. ¶10. In Byrd v. Greene County School Dist., 633 So.2d 1018 (Miss. 1994), this Court reversed the termination by a school district of a teacher's employment based on a financial crisis in the school district. This Court agreed with the teacher that the other good cause under § 37-9-59 is triggered only by personal misconduct on the part of the teacher and accordingly reversed the school district's dismissal of the teacher. Byrd, 633 So.2d at 1023. In Spradlin v. Board of Trustees of Pascagoula Mun. Separate School Dist., 515 So.2d 893 (Miss. 1987), this Court affirmed the dismissal of an administrator based on a single misrepresentation which the administrator had made to the school board regarding a failure to comply with purchasing requirements. Spradlin, 515 So.2d at 897. ¶11. In the present case, the conduct by Dr. Knox arguably did not rise to the level of the insubordinate, given that he was never directly ordered by one of his superiors to not permit the prayers to be read over the intercom. However, Dr. Knox can be said to have demonstrated a lack of judgment in having the prayer read in face of serious concerns expressed by the school district's attorney that said activities could result in costly litigation for the school district. The Board argues that such a lack of professional judgment should be held by this Court to constitute other good cause permitting a school board to suspend a principal or teacher. The term lack of professional judgment, however, is so broad as to be almost meaningless as a grounds for suspension or dismissal, and it is thus proper for this Court to instead examine the specific actions of Dr. Knox in the present case. ¶12. The Board is correct in asserting that the present case does not center around the issue of the constitutionality of prayer in schools. The Board is further correct in arguing that the Chancellor was incorrect in apparently basing his ruling in part upon his own strongly held personal views regarding prayer in school and a number of other issues irrelevant to the issue of whether the School Board exceeded its statutory authority in suspending Knox. The Chancellor's ruling is replete with the Chancellor's personal views regarding the alleged decline in moral values in this country's schools and a litany of other social and political issues. ¶13. The fact that the Chancellor gave improper weight to the issues surrounding the constitutionality of prayer in schools does not mean that his ruling in overruling the School Board's actions was incorrect. The dismissal of Dr. Knox by the Board should be affirmed if said action was supported by substantial evidence and was therefore not arbitrary and capricious, and this Court must also consider the intent of the Legislature in limiting the grounds for suspension or termination of a principal. ¶14. In the view of this Court, the actions of Dr. Knox in disregarding the legal advice of the staff attorney and proceeding to have the school prayers read in spite of a lack of any urgency for doing so, constitutes other good cause in support of his suspension by the School Board. In this age of litigious students and parents and of shrinking school budgets, a school district must have the ability to control its employees in such a manner as to protect itself from having to defend against lawsuits which may arise from the conduct of a principal or teacher. ¶15. The school environment is unique with regard to the extent to which decisions by principals and teachers can give rise to lawsuits on constitutional and other legal grounds. The funds spent by a school district in responding to legal challenges constitute resources that could be spent much more productively in the education of students. A holding by this Court reversing the Board's suspension of Knox could have the harmful effect of encouraging actions by principals or teachers who desire to use their position to promote their own political, social or religious agendas or who merely desire to gain publicity for themselves. A holding by this Court excusing Dr. Knox's actions because he had not been specifically ordered to disallow the prayers could also set a harmful precedent by allowing teachers or principals to conduct sensitive activities as long as they had not been specifically ordered not to do so by their superiors. ¶16. This Court noted in Hoffman v. Board of Trustees, East Mississippi Junior College, 567 So.2d 838 (Miss. 1990) that: Our scope of review in these matters is quite limited. We accept our duty of deference to the hearing officials and this is no different when those officials are the ultimate legal authority for the school district. We look to see whether the decision of the Board is supported by substantial evidence, was arbitrary or capricious, was beyond the power of the Board to make, or violated some statutory or constitutional right of the complaining party. . . . Most assuredly, by way of contrast, the test is not what we would have decided had we been the trier of the issues in dispute. Hoffman, 567 So.2d at 842. It can not be said that the Board's actions in dismissing Knox were arbitrary or capricious where Knox permitted the reading of the school prayers in spite of specific advice from the school district attorney that said actions were unconstitutional and had the potential to subject the school district to considerable expenses. ¶17. There are undoubtedly emergency situations in which a principal is required to make a hasty decision regarding an important matter without guidance from the school district officials, but the present case does not involve such a situation. It is true that the incident in question was an isolated one, and Dr. Knox's actions did not have the potential of placing any students in any real danger. This Court's holding in Spradlin, however, indicates that the misconduct in question need not constitute a course of conduct, nor need any danger to the students arise as a result of the misconduct in question. Accordingly, the suspension of Dr. Knox by the School Board is affirmed and the chancellor's ruling is reversed.(1) ¶18. REVERSED AND RENDERED. SULLIVAN, P.J., PITTMAN, BANKS AND McRAE, JJ., CONCUR. DAN LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS AND SMITH, JJ. MILLS, J., NOT PARTICIPATING.",issues
+383,1863815,1,2,"Channon raises four issues on her appeal. She contends the district court erred in concluding that the award of front pay damages was subject to the damages cap imposed by 42 U.S.C. § 1981a. She additionally asserts that the district court erred in refusing to allocate compensatory damages under the ICRA and $300,000 in punitive damages under Title VII. She also contends the damages cap is unconstitutional. She lastly contends that the district court erred in dismissing her claim of tortious infliction of emotional distress on the basis that such claims are preempted by the ICRA.
+1. Background. Channon contends the district court erred in concluding that front pay constitutes future pecuniary loss, subject to the compensatory damages cap imposed by 42 U.S.C. § 1981a(b)(3)(D). She asserts front pay is an equitable remedy exempt from the cap. Because Channon's contention implicates the interpretation of federal statutes, our review is for correction of errors of law. See Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 460 (Iowa 2000). Channon's sex discrimination claim is premised on 42 U.S.C. § 2000e-2. That statute pertinently provides that [i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's... sex.... 42 U.S.C. § 2000e-2(a)(1). That statute also pertinently provides that [i]t shall be an unlawful employment practice for an employer ... to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's ... sex.... 42 U.S.C. § 2000e-2(a)(2). Channon's retaliation claim is premised on 42 U.S.C. § 2000e-3. That statute pertinently provides: It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a). Section 102 of the Civil Rights Act of 1991, as codified at 42 U.S.C. § 1981a(a), significantly expands the monetary relief potentially available to plaintiffs who would have been entitled to back pay under prior law. Before 1991, for example, monetary relief for a discriminatorily discharged employee generally included only an amount equal to the wages the employee would have earned from the date of discharge to the date of reinstatement, along with lost fringe benefits such as vacation pay and pension benefits. United States v. Burke, 504 U.S. 229, 239, 112 S.Ct. 1867, 1873, 119 L.Ed.2d 34 (1992). Under § 102, however, a Title VII plaintiff who wins a back pay award may also seek compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. [42 U.S.C. § 1981a(b)(3).] In addition, when it is shown that the employer acted with malice or with reckless indifference to the [plaintiff's] federally protected rights, [42 U.S.C. § 1981a(b)(1)], a plaintiff may recover punitive damages. Landgraf v. USI Film Prods., 511 U.S. 244, 253-54, 114 S.Ct. 1483, 1491, 128 L.Ed.2d 229, 245 (1994). However, [42 U.S.C. § 1981a(b)(3)] imposes limits, varying with the size of the employer, on the amount of compensatory and punitive damages that may be awarded to an individual plaintiff. Thus, the sum of such damages awarded a plaintiff may not exceed $50,000 for employers with between 14 and 100 employees; $100,000 for employers with between 101 and 200 employees; $200,000 for employers with between 200 and 500 employees; and $300,000 for employers with more than 500 employees. Id. at 254 n. 6, 114 S.Ct. at 1491 n. 6, 128 L.Ed.2d at 245 n. 6. There is no dispute that $300,000 is the relevant cap in this case. See 42 U.S.C.A. § 1981a(b)(3)(D). The question is whether front pay damages fall within the term future pecuniary damages as used in 42 U.S.C. § 1981a(b)(3). If so, such damages would be subject to the $300,000 cap. The term front pay is not found in the Civil Rights Act of 1964. However, courts have defined the concept to mean the amount of pay the plaintiff would have received had [he or she] continued in [his or her] position after a judgment in [his or her] favor. Eileen Kuklis, Comment, The Future of Front Pay Under the Civil Rights Act of 1991: Will it be Subject to the Damage Caps? 60 Alb. L.Rev. 465, 468 (1996) [hereinafter Kuklis]; see also Hudson v. Reno, 130 F.3d 1193, 1203 (6th Cir.1997) (`Front pay' is widely defined as the salary that an employee would have received had he or she not been subjected to unlawful discrimination of his or her employer, subject to the employee's mitigating his or her damages.). Front pay is a form of relief that assumes the plaintiff would have continued in [his or her] position absent unlawful actions by the defendant. Kuklis at 469. The 1964 Act did not expressly provide for a damages award in the form of front pay. Id; see 42 U.S.C. § 2000e-5g. Nevertheless, before the enactment of 42 U.S.C. § 1981a, courts hearing Title VII actions often awarded front pay, in lieu of reinstatement, where reinstatement was deemed inappropriate or merely delayed by the defendant and the award of back pay had failed to make the plaintiff `whole.' Kuklis at 469 (footnote omitted); see Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 954 (1st Cir.1995) (holding that [i]n a Title VII case, the court has discretion to award front pay from the date of judgment forward when reinstatement is impracticable or impossible). In providing for front pay in Title VII cases, courts often treated the remedy as equitable in nature. In doing so, the courts have relied on 42 U.S.C. § 2000e-5(g)(1) (providing that the court may order reinstatement or any other equitable relief as the court deems appropriate). See EEOC v. Gen. Lines, Inc., 865 F.2d 1555, 1561 (10th Cir.1989). As mentioned, however, the Civil Rights Act of 1991 imposed a cap on recovery of compensatory damages ... for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. 42 U.S.C. § 1981a(b)(3). Compensatory damages awarded under the Act excludes back pay, interest on back pay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. § 2000e-5(g)]. 42 U.S.C. § 1981a(b)(2) (emphasis added). In relevant part, § 706(g) provides: If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate. 42 U.S.C. § 2000e-5(g)(1)(A) (emphasis added). 2. Analysis. In deciding whether front pay is subject to the compensatory damages caps, the federal circuits which have decided the question present the issue this way: Is front pay compensatory damages... for future pecuniary losses or is it any other type of relief authorized under section 706(g)—i.e., any other equitable relief that the court deems appropriate? Here the district court held that front pay constituted compensatory damages... for future pecuniary losses and therefore subject to the damages cap. We need not dwell on this issue because our holding on the allocation issue in division II.B of this opinion renders this issue moot. In addition, the United States Supreme Court has recently held that front pay is any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964. Pollard v. E.I. du Pont de Nemours & Co., ___ U.S. ___, 121 S.Ct. 1946, 1952, ___ L.Ed.2d ___ (2001). Front pay, is therefore not subject to the damages cap, and the district court erred in concluding otherwise. Id.
+The jury reached a verdict in favor of Channon against UPS on her Title VII claims for sex discrimination and retaliation. The jury also reached a verdict in favor of Channon against UPS on her equal pay claim. The jury, however, rejected her Title VII claim of sexual harassment. On her Title VII claims, the jury awarded Channon damages as follows: Past Medical Expenses $ 9,200 Future Medical Expenses 1,620 Back Pay 141,408 Front Pay 245,644 Past Emotional Distress 125,000 Future Emotional Distress 5,000 Total Compensatory Damages $ 527,872 ____________________ ___________ Total Punitive Damages $80,220,000 On her equal pay claim, the jury awarded Channon $14,605. On her state civil rights claim, the district court awarded Channon the same compensatory damages as the jury awarded on the Title VII claims, i.e., $527,872. The court did not award Channon punitive damages because under the state civil rights action, punitive damages are not allowed. In a posttrial ruling, the district court concluded that because the compensatory damages award, including front pay, exceeded the $300,000 cap, the court could not enter judgment on the punitive damages award. The court then entered judgment on Channon's federal claims broken down as follows: $300,000 permitted by the cap; back pay in the amount of $141,408 (which is not subject to the cap); $9200 for past medical expenses (which is not subject to the cap); and $14,605 as liquidated damages pursuant to 29 U.S.C. § 216(b) (which is not subject to the cap), for a total of $465,213. The court did not allow the $14,605 the jury awarded on the equal pay claim because that amount was already included in the back pay award. However, because the jury found UPS's conduct was willful, the court awarded Channon $14,605 as liquidated damages pursuant to 29 U.S.C. § 216(b). In its posttrial ruling, the court ordered that [p]ayment of the state law judgment shall satisfy the judgment on the verdict on the federal claims. Channon therefore ended up with a judgment of $527,872, the amount of the state judgment, and nothing for punitive damages. In an Iowa Rule of Civil Procedure 179(b) motion, Channon challenged the court's ruling. She contended that if the cap is imposed, it should only be applied to the punitive damages award, and not to the compensatory damages awarded her on her state civil rights claim. In ruling on Channon's motion, the court explained her position this way: [P]laintiff contends she is entitled to uncapped damages in the amount of $527,872 under the Iowa Civil Rights Act and an additional $300,000 in punitive damages under Title VII. Plaintiff argues the Court's order imposes an artificial cap to damages under the Iowa Civil Rights Act, disregards its compensatory scheme and totally disregards the jury verdict. Plaintiff argues the court permitted the defendant to escape liability for punitive damages by subsuming the punitive damages in the state award of compensatory damages. Plaintiff argues the Court should reallocate the jury verdict of compensatory damages for non-economic losses and future pecuniary losses to its award of damages under the Iowa Civil Rights Act and apply the statutory damage cap of section 1981a, not to non-economic losses and future pecuniary losses, but only to the punitive damages award. In this way, Plaintiff can avoid the Congressional cap on compensatory damages. She can recover her compensatory damages under state law and her punitive damages under federal law. The district court concluded that although some federal authority supported her position, other better-reasoned federal authority did not. The court determined that under the procedural circumstances of this case, Channon could not prevail on her claim to reallocate damages. On appeal, Channon reasserts the position she took in the district court. What we have here is not a true allocation case. Generally, allocation becomes necessary when the jury returns a general verdict on both state and federal claims without any allocation of the damages to those claims. The court is then left with the decision on how to allocate those damages to the claims. See, e.g., Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 509 (9th Cir.2000) (holding that where jury returned general verdict and found for plaintiff under Title VII and under the state civil rights statute, district court had discretion to allocate all of the compensatory damages, front pay, and back pay to plaintiff's state law claim, while allocating punitive damages award to plaintiff's Title VII claim). Allocation may also be necessary where the jury has by special verdict awarded damages on each claim, under identical legal standards and instructions, but the compensatory damages on the federal claim are above the caps. See, e.g., Martini v. Fed. Nat'l Mortgage Assn'n, 178 F.3d 1336, 1349 (D.C.Cir.1999), cert dismissed, 528 U.S. 1147, 120 S.Ct. 1155, 145 L.Ed.2d 1065 (2000) (holding that where jury allocated damages under the Title VII claim and the state civil rights claim and damages on the Title VII claim exceeded the cap, the district court should have reallocated those damages to the state claim). Here, no allocation is necessary because the elements for the compensatory damage award and the amount awarded for each of those elements were the same for both the Title VII claims and the ICRA claims. Duplication of damages, however, is an issue. See Team Central, Inc. v. Teamco, Inc., 271 N.W.2d 914, 925 (Iowa 1978) (noting that [t]he purpose of damages is to restore an injured party to the position he enjoyed before his injury, and that therefore [d]uplicate or overlapping damages are to be avoided). To avoid such duplication, we need only recognize the compensatory damages awarded on the ICRA claims and ignore the compensatory damages award on the Title VII claims. What the district court ruled was that payment of the judgment on the state claims satisfies the judgment for all damages— including punitive damages on the federal claims. Because the ICRA does not permit punitive damages, the district court awarded no such damages. Therefore, there was no need to avoid duplication of punitive damages. Doing what the district court did effectively limits our prerogative to provide greater remedies under our civil rights statute than those available under Title VII. See Martini, 178 F.3d at 1349-50. This result would be contrary to the express terms of Title VII: Nothing in [Title VII] shall be deemed to exempt or relieve any person from liability, duty, penalty, or punishment provided by any present or future law of any State.... 42 U.S.C. § 2000e-7; see Martini, 178 F.3d at 1350; see also Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 576 (8th Cir. 1997) (holding that Title VII damages cap does not apply to discrimination claims under state law). And, as the court in Martini observed, [o]ther than traditional judicial authority to reduce damages due to excessiveness, the power to limit total damages in cases where plaintiffs sue under both federal and local law belongs to Congress and [the state legislature] not this court. Martini, 178 F.3d at 1350. Finally, we agree with the Second Circuit's preference for permitting a plaintiff to recover under the liability theory that provides the plaintiff the most complete recovery. See Magee v. United States Lines, Inc., 976 F.2d 821, 822 (2d Cir. 1992). This preference is consistent with our goal of damages in civil cases: to place the injured party in as favorable a position as though no wrong had occurred. See R.E.T. Corp. v. Frank Paxton Co., 329 N.W.2d 416, 421 (Iowa 1983). The federal case the district court primarily relied on in refusing Channon's request for allocation was Martini v. Federal National Mortgage Association, 977 F.Supp. 464 (D.D.C.1997). We note, however, that in that case, the appellate court rejected the federal district court's analysis refusing allocation in favor of permitting allocation. Martini, 178 F.3d at 1349-50. We conclude Channon is entitled to judgment against UPS for the uncapped damages in the amount of $527,872 under the ICRA and for an additional $300,000 in capped punitive damages under Title VII. (The jury awarded $80,220,000 in punitive damages.) The district court erred in concluding otherwise. In addition, Channon is entitled to $14,605 as liquidated damages pursuant to 29 U.S.C. § 216(b) because such damages are not subject to the cap.
+Channon next contends that the $300,000 damages cap imposed by 42 U.S.C. § 1981a(b)(3)(D) is unconstitutional. She asserts the cap violates (1) her right to a jury trial under the Seventh Amendment to the Federal Constitution, (2) the separation of powers doctrine under Article III of the Federal Constitution, (3) her right to equal protection of the laws, and (4) her right to due process. The district court rejected those arguments in a posttrial ruling and for reasons that follow, so do we.
+This court reviews constitutional claims de novo. Statutes are cloaked with a strong presumption of constitutionality and, thus, a party challenging a statute carries a heavy burden of rebutting this presumption. `A person challenging a statute must negate every reasonable basis upon which the statute could be upheld as constitutional.' 616 N.W.2d 544, 547 (Iowa 2000) (citations omitted). 2. Seventh Amendment. Channon argues that the damages cap violates her Seventh Amendment right to a jury trial because the cap effectively vetoes any jury award of compensatory and punitive damages in excess of $300,000. The Seventh Amendment to the Federal Constitution provides: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. U.S. Const. amend. VII (emphasis added). Among other reasons, the district court rejected Channon's Seventh Amendment claim on the ground that the Seventh Amendment governs proceedings only in federal courts and not in state courts. We agree. Channon goes to great lengths to show how the cap violates the Seventh Amendment. However, she does little to challenge the district court's ruling regarding the applicability of that constitutional provision. Her only argument is that Gasperini v. Center for Humanities, 518 U.S. 415, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), which the district court relied on, does not squarely answer the question. In Gasperini, the Supreme Court stated: The Seventh Amendment, which governs proceedings in federal court, but not in state court, bears not only on the allocation of trial functions between judge and jury ...; it also controls the allocation of authority to review verdicts, the issue of concern here. 518 U.S. at 432, 116 S.Ct. at 2222, 135 L.Ed.2d at 677 (emphasis added). The language makes clear the Supreme Court's position that the Seventh Amendment does not apply to proceedings in state court. Nevertheless, Channon argues this language is dictum. To whatever extent this may be true, prior Supreme Court precedent, including the precedent relied upon by the Supreme Court in making the above statement, supports the conclusion that the Seventh Amendment does not apply to state court proceedings. See, e.g., Pearson v. Yewdall, 5 Otto 289, 95 U.S. 294, 296, 24 L.Ed. 436, 437 (1877) (We have held over and over again that art. 7 of the amendments to the Constitution of the United States relating to trials by jury applies only to the courts of the United States....); Edwards v. Elliott, 21 Wall. (88 U.S.) 532, 557, 22 L.Ed. 487, 492 (1874); see also Elliott v. City of Wheat Ridge, 49 F.3d 1458, 1459 (10th Cir.1995); In re Jacobs, 44 F.3d 84, 89 (2d Cir.1994); Mattison v. Dallas Carrier Corp., 947 F.2d 95, 99 & n. 1 (4th Cir.1991). Additionally, as UPS points out, there is Supreme Court precedent for the very type of issue before us. In Minneapolis & St. Louis Railroad v. Bombolis, the Supreme Court had before it state constitutional and statutory law which provided that after a case has been under submission to a jury for a period of twelve hours without a unanimous verdict, five sixths of the jury are authorized to reach a verdict, which is entitled to the legal effect of a unanimous verdict at common law. 241 U.S. 211, 216, 36 S.Ct. 595, 596, 60 L.Ed. 961, 963 (1916). The issue was whether applying this law to a cause of action under the federal Employers' Liability Act brought in state court violated the Seventh Amendment. Id. The Supreme Court held that the Seventh Amendment requirement of a unanimous verdict as mandated by prior judicial decision did not control state court enforcement of federal law. See generally id. at 216-23, 36 S.Ct. at 596-99, 60 L.Ed. at 963-65. In reaching this conclusion, the Court again recognized that the Seventh Amendment applies only to federal court proceedings and not to state court proceedings. Id. at 217, 36 S.Ct. at 596, 60 L.Ed. at 963. The importance of this case to the proceeding before us is obvious: not only is the Seventh Amendment inapplicable to state court proceedings brought under state law, but it is also inapplicable to state court proceedings brought under federal law—the very situation we have here. The Fifth Circuit similarly has held that the Seventh Amendment right to a jury trial in common-law actions does not apply to a case in state court, even though the claims are based on federal law, i.e. the Jones Act. See Linton v. Great Lakes Dredge & Dock, 964 F.2d 1480, 1488-89 n. 16 (5th Cir.1992). In the present case, the district court wisely observed that [p]erhaps the reason for the United States Supreme Court's consistency regarding the application of the Seventh Amendment only to federal courts stems from the clear language of the Seventh Amendment, which states [i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of common law. Because we hold that the Seventh Amendment does not apply here, we do not reach the question whether the $300,000 damages cap imposed by 42 U.S.C. § 1981a(b)(3)(D) violates the Seventh Amendment. 3. Separation of powers. Channon also contends that the damages cap infringes on the doctrine of separation of powers guaranteed by Article III of the Federal Constitution. She concedes that Congress has the power to decide which remedies are available for violations of a statute. However, she argues that while Congress has the power to limit the types of remedies, it has no power to limit the amount awarded. Specifically, she argues, the damages cap violates the separation of powers doctrine by undercutting the power and obligation of the judiciary to reduce an excessive verdict, based on the facts of a specific case. Article III, section 1 of the Federal Constitution begins by stating that [t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. U.S. Const. art. III, § 1. The separation of powers doctrine derives from Article III and requires that each of the three branches of the federal government remain entirely free from the control or coercive influence, direct or indirect, of either of the others.... Humprey's Ex'r v. United States, 295 U.S. 602, 629, 55 S.Ct. 869, 874, 79 L.Ed. 1611, 1620 (1935); accord Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 659, 102 L.Ed.2d 714, 736 (1989). The three branches of government, however, need not be entirely separate and distinct. Mistretta, 488 U.S. at 380, 109 S.Ct. at 659, 102 L.Ed.2d at 736. Rather, the three branches of government have a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which `would preclude the establishment of a Nation capable of governing itself effectively.' Id. at 381, 109 S.Ct. at 659, 102 L.Ed.2d at 736 (quoting Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659, 746 (1976)). The separation-of-powers jurisprudence grew out of the concern over the encroachment and aggrandizement of one branch at the expense of another. Id. at 382, 109 S.Ct. at 660, 102 L.Ed.2d at 737. For this reason, the Supreme Court has struck down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch. Id. By the same token, [the Supreme Court] ha[s] upheld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment. Id. To that end, separation-of-powers jurisprudence has consistently recognized that when Congress creates a statutory right, it clearly has the discretion, in defining that right, to create presumptions, or assign burdens of proof, or prescribe remedies.... Such provisions do, in a sense, affect the exercise of judicial power, but they are also incidental to Congress' power to define the right that it has created. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83, 102 S.Ct. 2858, 2878, 73 L.Ed.2d 598, 623 (1982) (plurality opinion). In passing the 1991 amendments to Title VII, Congress permitted additional remedies in the form of compensatory and punitive damages but then decided to limit the available damages awarded based on the size of the employer. Channon does not dispute the power of Congress to designate the type of remedy, but rather disputes the power of Congress to designate the amount of damages to be awarded. In rejecting a similar argument, the Sixth Circuit said: Plaintiff cross-appeals on the basis that the statutory cap on compensatory damages found at 42 U.S.C. § 1981a is an unconstitutional violation of the Separation of Powers doctrine. Plaintiff argues that by creating the statutory cap, Congress impermissibly encroached upon the judiciary and its traditional responsibility for assuring against excessive verdicts on a case-by-case basis. We do not find this argument persuasive. Congress created Title VII, and Congress may designate the remedies under Title VII. The fact that the judicial branch is limited in the amount of damages which it may award does not mean its ability to decide cases is being impaired by Congress. Pollard v. E.I. du Pont de Nemours & Co., 213 F.3d 933, 945-46 (6th Cir.2000), rev'd on other grounds, ___ U.S. ___, 121 S.Ct. at 1952, ___ L.Ed.2d ___ (citation omitted); see also Dobrich v. Gen. Dynamics Corp., 106 F.Supp.2d 386, 396 (D.Conn. 2000). We agree with this analysis and conclude that Congress, in enacting 42 U.S.C. § 1981a(b)(3)(D), has not violated the separation of powers doctrine under Article III of the Federal Constitution. Under these circumstances, the damages cap does not threaten encroachment or aggrandizement by Congress at the expense of the judiciary. As the district court determined here, [s]ince the statute does not unduly infringe on the province of the judiciary but instead expresses the will of Congress with respect to available statutory remedies under Title VII, no constitutional infirmity exists. 4. Equal protection. Channon argues that 42 U.S.C. § 1981a gives women the right to recover compensatory and punitive damages when they suffer intentional discrimination on the job, but limits the amount of recovery. On the other hand, she argues, victims of discrimination on the basis of race or national origin are permitted to recover damages under 42 U.S.C. § 1981 without any upper limit. For this reason she argues that the damages cap imposed by 42 U.S.C. § 1981a(b)(3)(D) violates her right to equal protection. At the outset, we note Channon does not specify which equal protection provision she meant to invoke—the one found in the Fourteenth Amendment or the implied equal protection clause inherent in the Due Process Clause of the Fifth Amendment to the Federal Constitution. Because the statute at issue is a federal one, we assume she meant the Fifth Amendment, which is applicable to the federal government. See Pollard, 213 F.3d at 946. The Due Process Clause of the Fifth Amendment provides that [n]o person shall ... be deprived of life, liberty, or property, without due process of law. U.S. Const. amend. V. The equal protection clause requires that similarly-situated persons be treated alike. Morrow, 616 N.W.2d at 548. If people are not similarly situated, their dissimilar treatment does not violate equal protection. Id. In Pollard, the Sixth Circuit rejected the same argument that Channon raises here. 213 F.3d at 946. The court did so concluding that plaintiffs bringing a claim under 42 U.S.C. § 1981a are not similarly situated with 42 U.S.C. § 1981 claimants. Id. In reaching this conclusion, the court reasoned: Plaintiff also argues that the statutory damages provision also violates the Equal Protection Clause of [the Fifth Amendment] in that it unfairly discriminates among those persons who wish to vindicate their rights with respect to racial discrimination and those who wish to vindicate their rights with respect to gender discrimination.... 42 U.S.C. § 1981a places a $300,000 statutory cap on all intentional discrimination on the basis of race, national origin, sex, religion, or disability (as defined in the Americans with Disabilities Act). The statute is inherently equitable on its face. The difference in the application of this statute in situations of gender or race discrimination occurs due to a provision in the Act which states that nothing in section 1981a is to be construed as in any way limiting the remedies provided in section 1981 itself, which does not limit recovery for intentional discrimination based upon race or national origin. However, section 1981 provides relief for a different type of claim than encompassed by the remedies available to plaintiff in section 1981a. Section 1981 provides for relief from discrimination in the making and enforcing of contracts, while section 1981a provides for relief purely from intentional discrimination in the employment context. While section 1981 includes contracts for employment, it also includes contracts for admission to organizations, insurance and other business contracts with private persons or corporations, and admission to schools. Plaintiff cannot therefore be said to be similarly situated with section 1981 claimants. Id. (Emphasis added.) Based on the same reasoning, we conclude Channon is not similarly situated with section 1981 claimants. Her equal protection challenge must therefore fail. The district court was correct in rejecting this challenge. 5. Due process. As to her final constitutional challenge, Channon contends that the damages cap violates her guarantees of due process. As with her equal protection challenge, Channon does not specify whether she is making a due process challenge under the Fourteenth Amendment or the Fifth Amendment to the Federal Constitution. The Fourteenth Amendment prohibits states from depriv[ing] any person of life, liberty, or property, without due process of law. U.S. Const. amend. XIV. As mentioned, the Fifth Amendment prohibits the federal government from depriv[ing] a person of life, liberty, or property without due process of law. U.S. Const. amend. V. Because Channon challenges a federal statute, her challenge implicates the Fifth rather than the Fourteenth Amendment. Channon relies on one case to support her position: Morris v. Savoy, 61 Ohio St.3d 684, 691, 576 N.E.2d 765, 771 (1991). In that case, the Ohio Supreme Court held that a state statutory cap on damages for medical malpractice violated a state constitutional due process provision. The court's rationale was that the statute was unreasonable and arbitrary because it imposed the costs of the intended benefit of the statute to the general public solely upon the class consisting of those most severely injured by medical malpractice. Channon asserts we can use the identical rationale regarding the damages cap here. The district court rejected this argument and so do we. As the district court properly pointed out, the Ohio Supreme Court was interpreting its own constitution. The court had every right to accord Ohio citizens more rights under the Ohio Constitution than such citizens were entitled under the Federal Constitution. Additionally, as the district court noted, Channon cites no authority supporting her contention that 42 U.S.C. § 1981a(b)(3)(D) violates the Due Process Clause of the Fifth Amendment. Channon has the burden to establish her due process claim by showing that Congress acted in an arbitrary and irrational manner. See Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 83, 98 S.Ct. 2620, 2636, 57 L.Ed.2d 595, 618 (1978). She has not met that burden. In rejecting the argument that Congress had no rational basis for enacting the damages cap, the Sixth Circuit explained: In a political compromise, the Civil Rights Act of 1991 was limited in the remedies which it would provide due to a belief that unlimited damages for all forms of discrimination would force employers to institute hiring quotas for their own economic safety. See 137 Cong. Rec. S15472-01 (discussing the fear of quotas that drove the compromise which was reached in the Civil Rights Act of 1991). The adoption of the provision saving the remedies available under section 1981 was rationally related to the legitimate purpose of creating reasonable damages available to all other victims of intentional discrimination without being forced to limit the damages already available to victims of racial and ethnic discrimination. Pollard, 213 F.3d at 946. What we have here is a classic example of an economic regulation—a legislative effort to structure and accommodate `the burdens and benefits of economic life.' Duke, 438 U.S. at 83, 98 S.Ct. at 2635, 57 L.Ed.2d at 618 (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752, 766 (1976)). The Supreme Court has previously held similar types of legislation motivated by similar concerns do not violate the due process protections afforded by the Fifth Amendment. See Duke, 438 U.S. at 84-87, 98 S.Ct. at 2636-2637, 57 L.Ed.2d at 618-20 (holding that cap on liability for nuclear accidents did not violate Fifth Amendment due process as arbitrary or irrational). We conclude, as did the district court, that the damages cap found at 42 U.S.C. § 1981a(b)(3)(D) does not violate the Fifth Amendment due process requirements.
+Finally, Channon contends that the district court erred in sustaining UPS's motion for summary judgment, dismissing her claim of tortious infliction of emotional distress. She argues this court's decision in Greenland v. Fairtron, 500 N.W.2d 36 (1993), which the district court relied on in dismissing her claim, is flawed and we should revisit it. She asserts in the alternative that even if Greenland is good law, it does not require dismissal of her emotional distress claim. 1. Scope of Review. We review a ruling granting a motion for summary judgment for correction of errors at law. Knudson v. City of Decorah, 622 N.W.2d 42, 48 (Iowa 2000). Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 237(c). 2. Greenland. In Greenland v. Fairtron Corp ., we held that the ICRA, Iowa Code chapter 216 (formerly chapter 601A), provides the exclusive remedy for particular conduct prohibited under that statute. 500 N.W.2d 36, 38 (Iowa 1993). Preemption occurs unless the claims are separate and independent, and therefore incidental, causes of action. Id. If, under the facts of the case, success on the non-ICRA claims requires proof of discrimination, such claims are not separate and independent. Id. The test is whether, in light of the pleadings, discrimination is made an element of the non-ICRA claims. Channon asserts we improperly decided Greenland because we relied on inaccurate characterizations of a prior holding in Northrup v. Farmland Industries, Inc., 372 N.W.2d 193 (Iowa 1985). She asserts that Northrup does not stand for the proposition that the ICRA preempted a claim of tortious infliction of emotional distress. Rather, she argues, in Northrup this court actually recognized the claim and upheld its dismissal only because the conduct alleged was not sufficiently outrageous. We agree with UPS that under the doctrine of stare decisis there is a preference for upholding prior decisions of this court. See Miller v. Westfield Ins. Co., 606 N.W.2d 301, 306 (Iowa 2000). However, stare decisis does not prevent the court from reconsidering, repairing, correcting or abandoning past judicial announcements when error is manifest, including error in the interpretation of statutory enactments. Id. Here, we see no reason to revisit our holding in Greenland. We think the conclusion this court reached in Greenland is a correct interpretation and application of the ICRA. Additionally, we disagree with Channon's assessment that Greenland is inconsistent with Northrup. In the latter case, this court stated that the procedure under the civil rights act is exclusive, and a claimant asserting a discriminatory practice must pursue the remedy provided by the act. Northrup, 372 N.W.2d at 197. Several cases have since held the same. See, e.g., Borschel v. City of Perry, 512 N.W.2d 565, 567-68 (Iowa 1994) (holding that civil rights statute preempts claim of wrongful discharge in violation of public policy when the claim is premised on discriminatory acts); Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 639 (Iowa 1990) (holding that civil rights statute preempted claims of wrongful discharge, unfair employment practices, and termination in bad faith and actual malice because all were premised on religious discrimination); Hamilton v. First Baptist Elderly Hous. Found., 436 N.W.2d 336, 341 (Iowa 1989) (concluding that Northrup held that the civil rights statute preempts independent common law actions also premised on discrimination). Finally, in Greenland, we addressed the apparent inconsistency Channon now raises between our Greenland and Northrup decisions: Contrary to Greenland's contention, our decisions in Vaughn and Northrup did not implicitly allow separate claims for intentional infliction of emotional distress in conjunction with chapter 601A discrimination claims. Preemption of the emotional distress claims was never raised or considered in either appeal. 500 N.W.2d at 38. 3. Did the district court err in its application of Greenland? Channon's fallback position is that the district court erred in ruling that the ICRA preempted her emotional distress claim. For reasons that follow, we disagree. As mentioned, the ICRA preempts her emotional distress claim if in light of the pleadings, discrimination is made an element of such claim. Greenland, 500 N.W.2d at 38. Therefore, the key is Channon's characterization of her emotional distress claim as stated in her pleadings. In her petition, Channon alleges that UPS discriminated against [her] with respect to the conditions of her employment, benefits and advancements on the basis of her sex and have subjected [her] to continual sexual harassment and have allowed a sexually hostile and offensive work atmosphere to exist at [her] place of employment and have retaliated against her for her complaints about discrimination and harassment. Additionally, she alleges that UPS's conduct includes, but is not limited to unwelcome sexual advances, verbal and physical conduct of a sexual nature and differential treatment based on sex. In her emotional distress claim, Channon incorporates these allegations and others, all of which pertain to her Title VII, ICRA, and equal pay claims. We agree with the district court that Channon's pleadings clearly establish that the operative facts which she alleges give rise to her claims under the ICRA are the same as those upon which she relies as giving rise to her emotional distress claim. In short, her emotional distress claim is based on her allegations of discrimination. The ICRA therefore preempts her claim, and the district court was correct in so ruling. E. Punitive damages. UPS argues that even if the damages cap is unconstitutional as Channon contends, we must still set aside the punitive damages award for two reasons. First, UPS contends that Channon failed to prove malice or reckless indifference to support her award for punitive damages. Second, UPS contends that the award of punitive damages cannot be upheld against it on a vicarious basis because it made a good-faith effort to prevent discrimination in the work place. We reject both challenges because UPS did not raise those issues with the district court in its motion for directed verdict.",issues
+384,4542590,1,5,"Rebuttal of Mitigating Circumstances [7] Under Nebraska law, the death penalty is imposed for a conviction of murder in the first degree only in those 2 State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019). 3 State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012). 4 Jenkins, supra note 2. 5 Id. 6 Torres, supra note 3. 7 Jenkins, supra note 2. - 543 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 instances when the aggravating circumstances existing in connection with the crime outweigh the mitigating circum­ stances. 8 When, as here, a defendant waives the right to a jury determination of alleged aggravating circumstances, the proc­ess for a sentencing panel to consider, find, and weigh the applicable aggravating and mitigating circumstances is set out by Neb. Rev. Stat. § 29-2521(2) (Cum. Supp. 2018). Section 29-2521(2) states: In the sentencing determination proceeding before a panel of judges when the right to a jury determination of the alleged aggravating circumstances has been waived, the panel shall . . . hold a hearing. At such hearing, evidence may be presented as to any matter that the presiding judge deems relevant to sentence and shall include matters relating to the aggravating circumstances alleged in the information, to any of the mitigating circumstances set forth in section 29-2523, and to sentence excessiveness or disproportionality. The Nebraska Evidence Rules shall apply to evidence relating to aggravating circumstances. Each aggravating circumstance shall be proved beyond a reasonable doubt. Any evidence at the sentencing determination proceeding which the presiding judge deems to have probative value may be received. The state and the defendant or his or her counsel shall be permitted to pre­ sent argument for or against sentence of death. The mitigating circumstances required to be considered under § 29-2521 and set forth in § 29-2523(2) include: (a) The offender has no significant history of prior criminal activity; (b) The offender acted under unusual pressures or influences or under the domination of another person; (c) The crime was committed while the offender was under the influence of extreme mental or emotional disturbance; (d) The age of the defendant at the time of the crime; 8 Neb. Rev. Stat. § 29-2519 (Cum. Supp. 2018). - 544 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 (e) The offender was an accomplice in the crime committed by another person and his or her participation was relatively minor; (f) The victim was a participant in the defendant’s conduct or consented to the act; or (g) At the time of the crime, the capacity of the defend­ ant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law was impaired as a result of mental illness, mental defect, or intoxication. [8] Schroeder initially claims that the sentencing panel erred by allowing the State to present evidence to rebut the statutory mitigating circumstances even though Schroeder did not offer any evidence on mitigation. In making this claim, Schroeder cites the proposition that rebuttal evidence is confined to new matters first introduced by the opposing party and limited to that which explains, disproves, or counteracts the opposing party’s evidence. 9 [9-11] Contrary to Schroeder’s assertions under this assignment, a sentencing panel has the discretion to hear evidence to address potential mitigating circumstances regardless of whether the defendant presents evidence on that issue. As quoted above, § 29-2521(2) allows a sentencing panel to receive “[a]ny evidence” at the sentencing proceeding which the presiding judge deems to have probative value relevant to the sentence including to any of the statutory mitigating circumstances. 10 A sentencing court has broad discretion as to the source and type of evidence and information which may be used in determining the kind and extent of the punishment to be imposed, and evidence may be presented as to any matter that the court deems relevant to the sentence. 11 Although § 29-2521(2) dictates that the Nebraska Rules of Evidence 9 See State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010). See, also, State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). 10 See Jenkins, supra note 2. 11 Id. - 545 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 apply when determining the aggravating circumstances alleged by the information, it contains no such requirement for consideration of mitigating circumstances. Because a sentencing panel is required to consider and weigh any mitigating circumstances in imposing a sentence of death, the introduction of evidence of the existence or nonexistence of these potential mitigators has probative value to the sentence. Thus, the panel could permit the State to present evidence to contradict potential mitigators even though Schroder failed to present affirmative evidence. Schroeder argues the State’s evidence purported to rebut the statutory mitigating circumstances was actually offered to support uncharged aggravating circumstances. Specifically, Schroeder alleges the State’s evidence was offered to show the nonstatutory aggravating circumstance of future dangerousness and “both prongs” 12 of § 29-2523(1)(d), which provides a statutory aggravator when a murder was especially heinous, atrocious, or cruel or manifested exceptional depravity by ordinary standards of morality and intelligence. During the portion of the hearing devoted to mitigating circumstances, the State’s evidence related to Berry’s murder. Lundgren testified about her interview with Schroeder where he described how and why he killed Berry. This same interview was also described in the presentence investigation report. The doctor who performed the autopsy on Berry explained that Berry was killed by strangulation. Wilder explained the events surrounding his discovery of Berry’s murder and Schroeder’s reaction. Eppens explained that Schroeder told him he had previously informed correctional staff he did not want a cellmate and joked, while Eppens was moving him following the discovery of Berry’s unconscious body, “[T]his is what happens when we watch UFC.” Additionally, through the testimony of a TSCI employee, the State introduced a notarized writing in which Schroeder confessed, explained his reasons for killing Berry, and stated he would kill again if given another life term. 12 Brief for appellant at 28. - 546 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 This evidence surrounding Berry’s murder was relevant to the statutory mitigating circumstances the panel was required to consider. The mitigating circumstances listed under § 29-2523(2) involve, in part, circumstances surrounding the underlying crime. These circumstances include pressure or influences which may have weighed on the defendant, potential influence on the defendant of extreme mental or emotional disturbance at the time of the offense, potential victim participation or consent to the act, the defendant’s capacity to appreciate the wrongfulness of the act at the time of the offense, and any mental illness, defect, or intoxication which may have contributed to the offense. 13 The State’s evidence informed the panel’s analysis and was relevant to consideration of these mitigators; and, as explained above, the panel had discretion to hear this evidence. Schroeder fails to allege that the introduction of this evidence influenced the panel’s finding of the existence of the charged aggravator—namely that Schroeder had been convicted of another murder, been convicted of a crime involving the use or threat of violence to the person, or had a substantial prior history of serious assaultive or terrorizing criminal activity. 14 It is undisputed that Schroeder had previously been convicted of the murder of Albers and was incarcerated for that crime at the time of Berry’s killing. Schroeder does not challenge the presentation of evidence related to this aggravating circumstance for failing to comply with the Nebraska Evidence Rules. 15 The panel had discretion to hear any evidence relevant to sentencing, the panel was required to consider mitigating circumstances even though Schroeder failed to allege or present evidence in support of them, and the evidence presented by the State was relevant to the panel’s review of these mitigators. As such, the panel did not err in allowing the State to present evidence on the existence of mitigating circumstances. 13 § 29-2523(2). 14 § 29-2523(1)(a). 15 See § 29-2521(2). - 547 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 Weighing of Mitigating Circumstances Schroeder next assigns the panel failed to properly consider mitigating information contained within the presentence investigation report and available from the State’s evidence. Schroeder claims proper consideration of this evidence would have led the panel to find additional statutory and nonstatutory mitigating circumstances. [12] As explained, § 29-2521 requires a sentencing panel to consider mitigating circumstances. Neb. Rev. Stat. § 29-2522 (Cum. Supp. 2018) describes the weighing of the aggravating and mitigating circumstances in imposing a sentence of death and requires that the determination be in writing and refer to the aggravating and mitigating circumstances weighed. Accordingly, the sentencing order must specify the factors it relied upon in reaching its decision and focus on the individual circumstances of each homicide and each defendant. 16 We first address Schroeder’s claims that the panel should have applied additional nonstatutory mitigating evidence, including (1) that the State had ulterior motives for pursuing the death penalty to avoid and detract from potential civil liability for failing to protect Berry, (2) that Schroeder was institutionalized from consistent incarceration, and (3) that Schroeder had used money elicited from his murder of Albers to provide clothes and food for his family. [13,14] The U.S. Constitution does not require the sentencing judge or judges to make specific written findings with regard to nonstatutory mitigating factors. 17 In State v. Jenkins, 18 we addressed an assignment of a sentencing panel failing to address nonstatutory mitigators and explained that 16 State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001). 17 State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). Accord State v. Reeves, 234 Neb. 711, 453 N.W.2d 359, cert. granted and judgment vacated 498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d 409 (1990). 18 Jenkins, supra note 2. - 548 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 we will not fault the panel for failing to discuss a nonstatutory mitigating circumstance that it was not specifically asked to consider. Additionally, the underlying facts Schroeder uses as support for these nonstatutory mitigators are included in the presentence investigation report which the panel explained it considered in determining his sentence. The panel also specifically acknowledged many of these facts in its sentencing order. On the allegation that the State had ulterior motives due to potential liability, the panel explained the cell Schroeder and Berry shared was intended for a single inmate, Berry was set for release 2 weeks after moving in with Schroeder, Schroeder was serving a life sentence for Albers’ murder, and Schroeder warned that issues might arise if he were incompatible with whoever was assigned as his roommate. As to institutionalization, the panel described Schroeder’s current incarceration for Albers’ murder and noted his dysfunctional childhood and that “[h]e was involved in the juvenile court at a young age.” Finally, on the use of money he attained from Albers’ murder, the panel described that he took several thousand dollars from Albers after leaving him for dead and “drove around the area, paying off bills and making purchases.” It is clear the panel considered and weighed these facts even though it did not state a finding that they led to the specific nonstatutory mitigating circumstances Schroeder presently claims. Because the panel was not required to make specific written findings on the application of nonstatutory mitigating factors, and taking into account the panel’s consideration of the facts Schroeder alleges support these factors, Schroeder’s claims involving the nonstatutory mitigators do not demonstrate reversible error. We next turn to Schroeder’s claim that the panel failed in its analysis of statutory mitigating circumstances. Of the statutory mitigating factors, Schroeder claims the panel should have determined the following applied: Schroeder acted under unusual pressures or influences or under the domination - 549 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 of another person, 19 Berry’s murder was committed while Schroeder was under the influence of extreme mental or emotional disturbance, 20 and Berry was a participant in Schroeder’s conduct or consented to the act. 21 For Schroeder’s claims that he was under unusual pressures or influences and extreme mental or emotional disturbance, he first alleges the panel failed to acknowledge his efforts to get Berry removed as a cellmate and his incompatibility with Berry. He supports this allegation by referencing the panel’s determination that Schroeder had calculated Berry’s murder for several days and chose no method of obviating his annoyance. Schroeder further quoted the panel’s explanation that finding the kite in the trash “suggests a premeditative and depraved mentality” in that Schroeder “did not ask that [Berry] be moved” and in that Schroeder “did not tell the guards that . . . Berry was in mortal danger if he were not moved.” Schroeder contends this determination and the findings supporting it are contradicted by the evidence. Specifically, Schroeder points to the summaries of his interviews with Lundgren, included in the presentence investigation report, wherein he told Lundgren that he had “‘told all of the staff’” that he did not want Berry as a cellmate, that he told staff members he was not compatible with Berry when they assigned him to Schroeder’s cell, that a TSCI caseworker had tried to get the assignment switched prior to Berry’s moving in, and that corrections officers would laugh at the arrangement and joke they were surprised Schroeder had not killed Berry yet. Schroeder also points to Lundgren’s case synopsis noting that the TSCI caseworker Schroeder described in his interview explained that she did have concerns prior to Berry’s moving into the cell based on a “‘gut feeling’” that the arrangement would be “‘a bad idea’” but that she was unsuccessful in getting it switched. 19 See § 29-2523(2)(b). 20 See § 29-2523(2)(c). 21 See § 29-2523(2)(f). - 550 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 However, the panel’s statements that Schroeder did not ask for Berry to be moved and did not warn that Berry was in mortal danger are not contradicted by Lundgren’s summaries. Lundgren’s summary of Schroeder’s interview only described Schroeder’s assertions that he told staff prior to Berry’s moving in that he did not want Berry as a cellmate and was incompatible with him. Lundgren’s summary did not describe that Schroeder asserted he continued these complaints after the move was made and did not allege he made any actual requests for Berry to be moved. Moreover, there is nothing in Schroeder’s description of his interactions with TSCI officials where he indicated Berry was in mortal danger if they continued to share the cell. While Schroeder alleged corrections officers would joke they were surprised he had not killed Berry yet, such statements do not imply that Schroeder requested that Berry be moved or that they believed or had reason to believe that Berry was actually in mortal danger. Similarly, while the TSCI caseworker attempted to get Berry’s assignment to Schroeder’s cell switched prior to his move, there is nothing indicating that she was doing so at Schroeder’s request or that her “‘gut feeling’” was based upon a belief such an arrangement might lead to Berry’s death. The panel reviewed the presentence investigation report and Lundgren’s summaries prior to determining whether there were mitigating circumstances. The panel’s findings that Schroeder did not request Berry’s removal from his cell and did not warn officials of potential danger to Berry is uncontradicted by the report. Instead, the report shows that Schroeder acted with premeditation and depravity in that Schroeder explained he had made up his mind to kill Berry days before he did so and in that he made no real attempts to avoid this result, even having made the decision to discard the kite which could have helped avoid the killing. Schroeder’s explanations in his interview that he killed Berry because he was unclean and annoying do not rise to the level of accounts of unusual pressure or influence or extreme - 551 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 mental or emotional disturbance. Nothing in the record indicates that Schroeder continually sought Berry’s removal from the cell or that any such requests were unheeded by TSCI staff. Schroeder references the effect incarceration can have on inmates in support of his unusual pressures or influences and extreme mental or emotional disturbance claims. Schroeder cites to several articles, while acknowledging he did not provide them to the court because he did not present any evidence, which discuss the effects of institutionalization and incarceration in solitary confinement on an inmate’s mental health as well as articles and reports of security and staffing issues at TSCI and DCS. [15] We have previously addressed the effect incarceration and, specifically, isolated confinement can have on individuals. In Jenkins, we analyzed the application of a nonstatutory mitigating factor of solitary confinement and quoted the understanding that “‘[y]ears on end of near-total isolation exact a terrible price.’” 22 However, we also noted that prison officials must have discretion to decide that in some instances, temporary solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. 23 Because of the defendant’s own extensive and violent actions in that case, the prison officials needed to have some recourse to deal with such an inmate, and we found that it was reasonable in not rewarding such behavior by considering the resulting confinement as a mitigating factor. 24 For the same reasons, the mere identification of a history of incarceration, without more, is insufficient to allege unusual pressures or influences or establish extreme mental or emotional 22 Jenkins, supra note 2, 303 Neb. at 727, 931 N.W.2d at 888, quoting Davis v. Ayala, 576 U.S. 257, 135 S. Ct. 2187, 192 L. Ed. 2d 323 (2015) (Kennedy, J., concurring). 23 Jenkins, supra note 2. 24 Id. - 552 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 disturb­ance. Schroeder’s incarceration was due to his own actions, including, most recently, his murder of Albers. Contrary to Schroeder’s assertions and as discussed in our analysis of Schroeder’s claims of the nonstatutory mitigating factors of institutionalization and the State’s alleged ulterior motive to avoid possible litigation, the underlying facts of Schroeder’s claims were acknowledged and weighed by the court. In its order, the panel acknowledged that the cell Schroeder and Berry shared was intended for a single inmate, Berry was set for release 2 weeks after moving in with Schroeder, Schroeder was serving a life sentence for Albers’ murder, and Schroeder had a history of incarceration including his history within the juvenile court system and his current sentence for Albers’ murder. The panel reasonably found that on their own, these facts and the reality of the effect incarceration can have on individuals were insufficient to establish that Schroeder acted under unusual pressures or influences or was under extreme mental or emotional disturbance. Under our de novo review, we reach the same conclusion. Schroeder’s remaining claim, that the panel erred in failing to find Berry was a participant in Schroeder’s conduct or consented to the act, is without merit. Schroeder supports this proposition by noting, “Berry complied with Schroeder’s request that he turn the chair around and face away from Schroeder after Schroeder expressed extreme annoyance with his behavior.” 25 However, Berry’s facing away from Schroeder does not indicate participation or consent to his murder. Schroeder expressed frustration and requested Berry to turn away from him. How Berry would have understood this as Schroeder’s asking for aid in his strangulation and not as a method to avoid conflict is unclear. Schroeder offers no further argument to support this mitigating circumstance, and we agree with the panel’s finding that there was no evidence establishing this mitigating factor. 25 Brief for appellant at 40. - 553 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 Duty to Request DCS Chapter 83 Custody Reports Schroeder claims the panel had a duty to request additional records of Schroeder’s incarceration from DCS. These records are required to be kept by DCS under Neb. Rev. Stat. § 83-178 (Reissue 2014) and include records concerning Schroeder’s background, conduct, associations, and family relationships; records regarding Schroeder’s “Central Monitoring,” 26 which may be relevant to the propriety of his placement with Berry; and any medical or mental health records. [16-18] When an offender has been convicted of first degree murder and waives the right to a jury determination of an alleged aggravating circumstance, the court must order a presentence investigation of the offender and the panel must consider a written report of such investigation in its sentencing determination. 27 The presentence investigation and report shall include, when available, any submitted victim statements and an analysis of the circumstances attending the commission of the crime and the offender’s history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, and personal habits. 28 The investigation and report may also include any other matters the probation officer deems relevant or the court directs to be included. 29 In this case, the court ordered a presentence investigation and report, a report was prepared, and the panel considered it during its sentence determination. Schroeder does not allege this report failed to analyze and present any of the areas required by § 29-2261(3). Instead, Schroeder claims the court had a duty to request the presentence investigation report to include specific incarceration records. Schroeder relies on State 26 Id. at 42. 27 § 29-2521(2) and Neb. Rev. Stat. § 29-2261(1) (Reissue 2016). 28 § 29-2261(3). 29 Id. - 554 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 v. Dunster 30 for this claim that the panel should have requested additional documents. In that case, the defendant was sentenced to death after pleading guilty to first degree murder. 31 Prior to sentencing, the district court instructed the probation officer conducting the presentence investigation to include information in the possession of DCS as part of the report. 32 The court explained that access to this information was restricted by law and that it would not be released to the public except upon written order. 33 On appeal, the defendant assigned the district court’s consideration of this information, which included confidential mental health information provided by DCS, as reversible error. 34 However, we found the district court had given adequate notice to the defendant of its intent to consider such evidence to satisfy his due process rights. 35 Additionally, when the bill of exceptions was completed in that case, the DCS records were not included. As a result, we determined that in our de novo review, we could request and consider the additional documents just as the district court had requested and considered them. 36 In reaching this determination, we noted that our request of these documents did not indicate in advance how we would rule on appeal but merely followed our statutory requirements for review and honored the intent of the Legislature to provide “‘the most scrupulous standards of fairness and uniformity’” in reviewing the imposition of a sentence of death. 37 30 Dunster, supra note 16. 31 Id. 32 Id. 33 Id. 34 Id. 35 Id. 36 Id. 37 Id. at 372, 631 N.W.2d at 913. - 555 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 Dunster neither explicitly nor implicitly required a lower court to receive and review documents of a defendant’s prior incarceration. Instead, it only evaluated the process of a district court seeking to consider specific documents during a sentencing proceeding and our ability to review the same information upon which the lower court relied. 38 Accordingly, Dunster did not add further requirements for the preparation of a presentence investigation report under § 29-2261(3). Because the district court complied with its duties under § 29-2261(1) in requesting the presentence investigation and report, because the presentence report included the requisite analysis of the § 29-2261(3) elements, and because there is no requirement that a sentencing court must request access to specific § 83-178 DCS records, the district court did not err by not requesting that the DCS records be included in the presentence investigation report. Sufficiency of Safeguards to Prevent Arbitrary Results Schroeder claims Nebraska’s death penalty is unconstitutional as applied to him under the 8th and 14th Amendments to the U.S. Constitution and article I, §§ 3, 9, and 15, of the Nebraska Constitution. Schroeder argues that insufficient safeguards exist to prevent arbitrary results when, as here, a defendant waives his right to counsel and refuses to introduce mitigating or proportionality evidence or argument. [19,20] An accused has a state and federal constitutional right to be represented by an attorney in all critical stages of a criminal prosecution which can lead to a sentence of confinement. 39 However, a defendant may waive this right to counsel 38 Dunster, supra note 16. 39 See, U.S. Const. amends. VI and XIV; Neb. Const. art. I, § 11; Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); Jenkins, supra note 2; State v. Wilson, 252 Neb. 637, 564 N.W.2d 241 (1997); State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). - 556 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 so long as the waiver is made knowingly, voluntarily, and intelligently. 40 [21-23] The same constitutional provisions that provide a defendant the right to counsel also guarantee the right of the accused to represent himself or herself. 41 This right to self-representation plainly encompasses certain specific rights of the defendant to have his voice heard, including that the pro se defendant must be allowed to control the organization and content of his own defense. 42 We have previously explained that such control may include a waiver of the right to present mitigating evidence during sentencing in a death penalty case. 43 Schroeder does not challenge the validity of his waiver of counsel for the penalty phase or his election not to present mitigating evidence or proportionality argument. Instead, Schroeder argues that the exercise of the right to self-­representation and, derived therefrom, the right to waive the presentation of evidence and argument conflicted with the constitutional restrictions against cruel and unusual punishment. Specifically, Schroeder addresses the effect such waivers have on the proportionality review by the sentencing panel. To establish the cruelty and unusualness of such punishment, Schroeder notes first that the proportionality requirement under Neb. Rev. Stat. §§ 29-2521.01 to 29-2521.04 (Cum. Supp. 2018) only requires the sentencing panel to review those cases in which the death penalty was imposed. Schroeder also asserts proportionality review is further limited depending on whether jury determinations in the reviewed cases were waived because, 40 Jenkins, supra note 2; State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007). 41 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Jenkins, supra note 2; Wilson, supra note 39; State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991). 42 McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); Dunster, supra note 16; Wilson, supra note 39. 43 Dunster, supra note 16. - 557 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 when they are waived, a sentencing panel is required to issue written findings of fact as to any proven aggravating circumstances, but when there is no waiver, the jury does not issue such analysis. Schroeer argues that when a defendant waives counsel and refuses to meaningfully participate, the record on which the panel makes its proportionality determination is limited to what it requests and the State presents, which has the potential to be limited and biased in favor of the imposition of a death sentence. [24,25] Because a death sentence is different from any other criminal penalty 44 and no system based on human judgment is infallible, we have taken, and should continue to take, the extra step to ensure fairness and accuracy with the imposition of the death penalty. 45 Taking this into account, the Legislature has enacted a statutory scheme to provide additional safeguards, 46 and in interpreting these statutes, we have followed the fundamental principle of statutory construction that penal statutes are to be strictly construed in favor of the defendant. 47 [26] Part of this statutory scheme, as explained, requires a court to order a presentence investigation report. 48 The sentencing panel must consider this report in reaching its sentence. Thus, contrary to Schroeder’s argument, even if the State pre­ sents evidence in favor of a specific sentence and the defendant declines to present contrary evidence, the court receives and must consider independent information from the report. [27,28] In a death penalty case, the sentencing panel is required to review this report and determine whether it contradicts the State’s evidence of aggravating factors and whether any mitigating circumstances exist, including specifically 44 State v. Hochstein and Anderson, 262 Neb. 311, 632 N.W.2d 273 (2001). 45 Id. 46 Neb. Rev. Stat. §§ 29-2519 to 29-2546 (Cum. Supp. 2018). 47 Hochstein and Anderson, supra note 44. 48 §§ 29-2261(1) and 29-2521(2). - 558 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 delineated statutory mitigators. 49 While the State must prove the aggravating circumstances beyond a reasonable doubt, 50 there is no burden of proof with regard to mitigating circumstances. 51 Accordingly, the panel’s evaluation of the independently compiled presentence investigation report and any evidence the defendant chooses to introduce is under the less restrictive mitigation standard and provides another safeguard to ensure fairness and accuracy in a death penalty determination. [29-32] Once the panel makes its determinations about the existence of aggravating and mitigating circumstances, the panel is then required to undertake a proportionality review. This review looks at whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. 52 Proportionality review is not constitutionally mandated. 53 It exists in Nebraska by virtue of §§ 29-2521.01 to 29-2521.04, which direct this court to conduct a proportionality review in each appeal in which a death sentence is imposed. 54 A court’s proportionality review spans all previous cases in which a sentence of death is imposed and is not dependent on which cases are put forward by the parties. 55 Schroeder takes issue with proportionality review requiring a panel to compare only those cases in which the death penalty was imposed. 56 Instead, Schroeder argues the statutory scheme explicitly requires review of all homicide cases regardless of the resulting sentence. 49 §§ 29-2521 to 29-2523. 50 Torres, supra note 3. 51 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010); State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990). 52 § 29-2522(3). 53 State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005). 54 Id. 55 See id. 56 See State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986), overruled on other grounds, State v. Chambers, 233 Neb. 235, 444 N.W.2d 667 (1989). - 559 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 It is unclear how Schroeder is arguing this fits under his assignment alleging unconstitutionality in the interplay of his waiver of counsel and election not to present evidence or argument with Nebraska’s capital sentencing scheme. The introduction of further evidence or whether or not Schroeder was represented by counsel does not affect what previous cases the panel was required to consider. In any case, we decline Schroeder’s invitation to overrule our decision in State v. Palmer 57 which interpreted §§ 29-2521.01 to 29-2521.04 to only require review of previous cases in which the death penalty was imposed. Additionally, we are unconvinced by Schroeder’s claim that the proportionality review is unconstitutionally flawed due to having less analysis of the reviewed cases in which a jury determines the existence of the aggravating circumstance than of the reviewed cases in which a sentencing panel makes the determination. Again, it is unclear how Schroeder relates this alleged flaw to this assignment. If Schroeder is claiming that waiver of counsel and lack of argument would prohibit the panel from taking into account that previous aggravation determinations were decided by juries, this information would be apparent from the previous opinions and would be able to be considered by the panel independently of whether the defend­ ant or an advocate explained such difference to the panel. [33,34] Moreover, even when a jury determines the existence of an aggravating circumstance, a sentencing panel is required to put in writing its consideration of (1) whether the determined aggravating circumstance justifies the imposition of a sentence of death, (2) whether mitigating circumstances exist, and (3) whether a sentence of death would be excessive or disproportionate to penalties imposed in similar cases. 58 This writing must specifically refer to the aggravating and mitigating circumstances weighed in the determination of the panel. 59 57 Id. See, also, State v. Gales, supra note 53. 58 § 29-2522. 59 Id. - 560 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 As such, the basis of Schroeder’s argument that cases where a jury determines the existence of aggravating circumstances provide insufficient information for comparison in a proportionality review is without merit. [35-38] Considering all of the above, Nebraska’s capital sentencing scheme provides additional statutory steps and considerations to ensure fairness and accuracy, and these safeguards exist regardless of a defendant’s strategy at the penalty phase. Due to this statutory scheme, a defendant cannot “choose” the death penalty. The sentencing decision rests with the court alone. 60 In order to exercise this authority, the statutory scheme requires that a sentencing panel consider not only evidence and argument presented by the parties but also an independently compiled presentence investigation report to determine whether the alleged aggravating circumstance exists, determine whether any mitigating factors are present which would weigh against the imposition of the death penalty, and conduct a proportionality review weighing the aggravating and mitigating factors and comparing the facts to previous cases where the death penalty was imposed. 61 These considerations exist and are weighed regardless of the evidence presented by the parties or their arguments. [39,40] A defendant is entitled to present a defense and is guaranteed the right to choose the objectives for that defense. 62 As previously stated, the self-represented defendant must be allowed to control the organization and content of his own defense. 63 However, Schroeder suggests that in a death penalty case, the substantial nature of the proceedings requires an advocate in opposition to a sentence of death irrespective of the defendant’s chosen objective. To this end, he suggests §§ 29-2519 to 29-2546 implicitly require the appointment of a 60 Dunster, supra note 16. 61 See Torres, supra note 3. 62 McCoy v. Louisiana, ___ U.S. ___, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018); Jenkins, supra note 2. 63 Dunster, supra note 16. - 561 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 guardian ad litem to present evidence and argument as to why the death penalty should not be imposed. [41] This suggestion is similar to that addressed in Dunster. 64 The defendant therein had waived trial counsel for the penalty stage and chose not to present any mitigating evidence. On appeal, he claimed the court should have appointed “amicus counsel” to advocate against the imposition of the death penalty by presenting evidence and “‘argu[ing] for life,’” which is identical to the role Schroeder now envisions for an appointed guardian ad litem. 65 As noted in Dunster, when a defendant waives counsel and the presentation of mitigating evidence, the appointment of an advocate to present evidence and argue against the imposition of a sentence overrides that defendant’s constitutional right to control the organization and content of his or her own defense during sentencing. [42,43] A criminal defendant has the right to waive counsel and present his or her own defense. 66 In a death penalty case, this includes the right of the defendant to elect not to present additional evidence or argument during the penalty proceedings. Even if a defendant makes such waiver and election, the Legislature has enacted safeguards to ensure fairness and accuracy in the resulting sentence. As explained above, these safeguards apply regardless of the defense strategy an individual defendant implements. Therefore, Schroeder’s assignment that Nebraska’s capital sentencing scheme is unconstitutional due to insufficient safeguards to prevent arbitrary results when a defendant waives counsel and elects not to present evidence or argument fails. Excessiveness and Proportionality Review [44,45] In reviewing a sentence of death, we conduct a de novo review of the record to determine whether the 64 Id. 65 Id. at 361, 631 N.W.2d at 906. 66 See Dunster, supra note 16. - 562 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 aggravating and mitigating circumstances support the imposition of the death penalty. 67 In so doing, we consider whether the aggravating circumstances justify imposition of a sentence of death and whether any mitigating circumstances found to exist approach or exceed the weight given to the aggravating circumstances. 68 We first note Schroeder does not contest the factual basis for the § 29-2523(1)(a) aggravation allegation that Schroeder was convicted of Albers’ murder. It is undisputed that in 2006, Schroeder murdered Albers, who was at the time Schroeder’s 75-year-old previous employer. It is also undisputed that Albers was robbed and that Schroeder had made the decision to kill Albers days before the robbery. Schroeder threatened and beat Albers, tied him up, threw him in the back of a pickup, and dumped him in an abandoned well, leaving him for dead. Based upon our de novo review, we determine this murder conviction, which was proved beyond a reasonable doubt at the sentencing hearing, is sufficient as an aggravating circumstance under § 29-2523(1)(a) to justify the imposition of the death penalty. In coordination with our analysis concerning the panel’s mitigating circumstance findings, we also agree with the panel’s determination that the applicable statutory and nonstatutory circumstances apparent from the record do not approach or exceed the aggravating circumstance in this case. [46-48] In addition, we are required, upon appeal, to determine the propriety of a death sentence by conducting a proportionality review, comparing the aggravating and mitigating circumstances with those present in other cases in which a court imposed the death penalty. 69 The purpose of this review is to ensure that the sentences imposed in this case are no greater than those imposed in other cases with the same or similar 67 Torres, supra note 3. 68 Id. 69 Id. - 563 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 circumstances. 70 Our proportionality review looks only to other cases in which the death penalty has been imposed and requires us to compare the aggravating and mitigating circumstances of the case on appeal with those present in those other cases. 71 In this case, we have reviewed our relevant decisions on direct appeal from other cases in which the death penalty was imposed. 72 Like the sentencing panel, we find Dunster particularly pertinent to our review. 73 The defendant therein was convicted of murdering his cellmate by strangling him with an electrical cord. 74 The defendant had previously been convicted of the earlier murder of a woman while attempting to collect a debt from her husband, and he had confessed to a different murder of another inmate while incarcerated for the first murder. 75 At the penalty phase, the State alleged a single aggravating circumstance of § 29-2523(1)(a) and presented evidence of the two previous killings. 76 After the trial court sentenced the defendant to death, we affirmed. 77 Such factual basis is similar to that in the instant case. As did the defendant in Dunster, Schroeder murdered his cellmate by strangulation. Schroeder’s previous murder of Albers was also pursuant to a plan to take money from his victim. 70 See id. 71 Id. 72 See, e.g., Jenkins, supra note 2; Torres, supra note 3; State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011); Hessler, supra note 40; Dunster, supra note 16; State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999); State v. Williams, 253 Neb. 111, 568 N.W.2d 246 (1997); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989); State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986); State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979). 73 Dunster, supra note 16. 74 Id. 75 Id. 76 Id. 77 Id. - 564 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 Schroeder attempts to differentiate his case from Dunster by emphasizing that while only one aggravating circumstance was alleged in Dunster, the allegation therein concerned two previous murders. Additionally, Schroeder argues those underlying murders were committed with more serious facts, including that there was suspected sexual assault of one of the victims. First, it is not evident that the underlying murders in Dunster included any more or less serious facts surrounding their execution. Schroeder threatened, beat, and robbed Albers and threw him bound and alive into a well to die. The murders the defendant in Dunster committed involved binding, beating, killing, and possible sexual assault. In both cases, the defend­ ants acted with violence toward the persons. [49,50] Additionally, while there were two underlying murders in Dunster, this does not mean Dunster cannot be used in a proportionality review. A proportionality review does not require that a court “color match” cases precisely. 78 It would be virtually impossible to find two murder cases which are the same in all respects. 79 Instead, the question is simply whether the cases being compared are sufficiently similar, considering both the crime and the defendant, to provide the court with a useful frame of reference for evaluating the sentence in this case. 80 As the factual connections show, Dunster is sufficiently similar for purposes of evaluating proportionality. [51-53] Along the same lines, Schroeder attempts to distinguish his case from others cited by the sentencing panel and reviewed on appeal by noting that the majority of those cases had multiple aggravating factors. However, we have established that one aggravating circumstance may be sufficient under our statutory system for the imposition of the death penalty. 81 In 78 Ellis, supra note 72. 79 Id. 80 Id. 81 Dunster, supra note 16. - 565 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SCHROEDER Cite as 305 Neb. 527 our proportionality review, the evaluation of whether the death penalty should be imposed in a specific case is not a mere counting process of “X” number of aggravating circumstances and “Y” number of mitigating circumstances and, instead, asks whether the reviewed cases are sufficiently similar to provide a useful reference for that evaluation. 82 Thus, even though other cases may involve additional or different aggravating circumstances, they may still be sufficiently similar to provide such reference. Having reviewed our previous cases which have affirmed the imposition of a death penalty and compared the aggravating and mitigating circumstances present in those cases, we are persuaded that the sentence imposed in this case is not greater than those imposed in other cases with the same or similar circumstances. Accordingly, we affirm Schroeder’s death sentence.",analysis
+385,2670086,1,1,"¶15 On appeal from a municipal court, the district court functions as an intermediate appellate court. City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461. When reviewing the decision of the district court in such an appeal, we review the case as if the appeal had originally been filed in this Court, applying the appropriate standard of review. Cantu, ¶ 10. ¶16 The interpretation and construction of a statute is a question of law, which we review de novo. State v. Brown, 2009 MT 452, ¶ 6, 354 Mont. 329, 223 P.3d 874. The denial of a motion to dismiss is also reviewed de novo. State v. LeMay, 2011 MT 323, ¶ 27, 363 Mont. 172, 266 P.3d 1278. We exercise plenary review of constitutional issues. State v. Dugan, 2013 MT 38, ¶ 14, 369 Mont. 39, 303 P.3d 755. We review evidentiary rulings for abuse of discretion. State v. Daniels, 2011 MT 278, ¶ 11, 362 Mont. 426, 265 P.3d 623. We generally will not address issues raised for the first time on appeal. Weaver v. State, 2013 MT 247, ¶ 38, 371 Mont. 476, 310 P.3d 495. and Oltrogge also submitted a photocopy of the front and back of the $25 gift card, which had a remaining balance of $16.13. 5",standard of review
+386,1271322,1,1,"Appellant challenges the sufficiency of the jury's finding of undue influence in three respects: 1) the verdict is inconsistent with the evidence presented at trial; 2) the verdict is not supported by the evidence presented at trial; and 3) the verdict is contrary to the great weight of the evidence. We cannot agree. The standard of review when considering the question of the sufficiency of the evidence to support a jury verdict is well established. We must begin by assuming that the evidence supporting the prevailing party is true leaving out of consideration the conflicting evidence. This evidence must also be given every favorable inference that may be fairly drawn. Furthermore, we do not evaluate the evidence but rather determine if there was substantial evidence upon which the jury could have based its decision. Brittain v. Booth, Wyo., 601 P.2d 532 (1979). In re Draper's Estate, Wyo., 374 P.2d 425, 431 (1962), this Court stated that:    [t]he elements of undue influence are opportunity to control; a condition permitting subversion; and activity on the part of the person charged.    The proof necessary to support a finding of undue influence has also been discussed by this court. In In re Conroy's Estate, 29 Wyo. 62, 211 P. 96, 99 (1922), we stated: It is not necessary to cite authorities to sustain the proposition that undue influence, seldom susceptible of direct proof, may be established by proof of facts from which it may be fairly and reasonably inferred. Cited with approval in In re Merrill's Estate, 80 Wyo. 276, 341 P.2d 506, 509 (1959). Additionally, in 79 Am.Jur.2d, Wills, § 479, p. 614, the burden of proof necessary for a finding of undue influence has been set forth as follows: Direct evidence is not essential to the proof of fraud or undue influence invalidating a will, and a contest on the ground of fraud or undue influence may be weighed successfully on circumstantial evidence, the contestant being entitled to the benefit of all inferences which may be reasonably and legitimately derived from established facts.   .    A combination of weakened mentality and unnatural bequests will warrant the submission of the issue of undue influence to the jury.   . 79 Am.Jur.2d, Wills, § 487, p. 619. The burden of proof on the issue of undue influence, which burden most courts say rests upon the contestant, is carried, in general, by a preponderance of the evidence.    79 Am.Jur.2d, Wills, § 480, p. 614. Most of the authorities support the view that a presumption of undue influence arises upon a showing that one who drew the will, or was otherwise active directly in preparing it or procuring its execution, obtains under the will a substantial benefit, to which he has no natural claim, or a benefit which, in amount, is out of proportion to the amounts received by other persons having an equal claim to participate in the bounty of the testator.   79 Am.Jur.2d, Wills, § 429, p. 579.    But the circumstance that the condition of the mind or the body of the testator was such as to make it probable that he was not able to resist the influence of others has been held sufficient to warrant a presumption that the will was obtained by undue influence   . 79 Am.Jur.2d, Wills, § 434, p. 584. The fact that a will is unnatural, unreasonable, or unjust in its provisions is a circumstance to be considered in connection with other evidence bearing on the question whether the will is the result of undue influence.    79 Am.Jur.2d, Wills, § 437, p. 585. In addition, as noted by the court in Welch's Administrator v. Clifton, 294 Ky. 514, 172 S.W.2d 221, 148 A.L.R. 1220 (1943): Undue influence may be proved by circumstances leading up to and attendant upon the execution of a will, which, when taken together, are convincing, notwithstanding the fact that each circumstance standing alone might be inconclusive. [Citation.] A review of the evidence here indicates that Mr. Waters was suffering from the ravages of alcohol; he was confused and in a weakened condition, and had been in that condition some time prior to the execution of the will. Appellant furnished the testator with a place to live, provided for some of his living expenses and gave other financial assistance. Appellant also furnished the decedent with alcohol even though she knew of the dangers involved if Mr. Waters continued to consume alcohol. In addition, throughout this period, Mr. Waters continued to require frequent hospitalization. The jury heard considerable testimony with respect to Mr. Water's lack of testamentary capacity. The jury, however, did not think this testimony sufficient to find that Mr. Waters lacked testamentary capacity. The jury, nevertheless, could properly consider this testimony insofar as it showed a weakened mentality, and thus rendered testator susceptible to undue influence. 79 Am.Jur.2d, Wills, § 480, p. 619, supra. The attorney who prepared the testator's will was first contacted by the appellant, Valda Waters. Appellant also accompanied Mr. Waters to the attorney's office to have the will drawn. Apparently the attorney who drew the will never talked to Mr. Waters except in the presence of appellant. It would be fair to say, therefore, that the testator was completely dependent upon Valda Waters and that he was completely under her domination at the time of the execution of the will. We wish to make it clear that we are not holding that any one of the circumstances leading up to and attendant upon the execution of the will, standing alone, was sufficient to sustain the jury's verdict. We do find that a combination of these circumstances, together with permittable inferences, is sufficient to sustain the jury's verdict that the testator acted under due influence at the time he executed his will. Welch's Administrator v. Clifton, supra.",sufficiency of the evidence
+387,852552,1,3,"A defendant who pleads guilty has a right to make a statement in allocution upon request prior to sentencing. In this case the trial court erred by not allowing Biddinger to make a statement in allocution. But the error was harmless. Further, Biddinger has not demonstrated that his ten-year executed sentence to be served in the Department of Correction requires revision. We therefore affirm the judgment of the trial court. SHEPARD, C.J., and DICKSON, SULLIVAN, and BOEHM, JJ., concur.",conclusion
+388,4522335,1,1,"After two employees separated from their employment with a restaurant, they sued for “paid time off” (PTO) compensation under the Nebraska Wage Payment and Collection Act (Wage Act).1 Upon cross-motions for summary judgment, the district court sustained the employer’s motion. Because the employees did not meet the written employment agreement’s stated conditions to earn PTO, we affirm the summary judgment.",introduction
+389,2630631,1,1,"¶ 1 This appeal concerns the validity of an automobile search. After finishing a routine traffic stop, an officer asked the defendant, Shayne M. Hansen, for consent to search his vehicle. Hansen allegedly consented. During the search of the vehicle and subsequent search of Hansen, the officer discovered drug paraphernalia and methamphetamine. ¶ 2 Hansen filed a motion to suppress the evidence, claiming that (1) he was illegally detained by the officer because the officer's questioning and the subsequent search exceeded the scope of the initial traffic stop, (2) his consent was involuntary, and (3) the evidence seized during the search was tainted by a prior police illegality—the illegal detention. The district court denied Hansen's motion to suppress after finding both lawful detention and voluntary consent. The court of appeals reversed, concluding that Hansen was illegally detained and that he did not voluntarily consent to the search. State v. Hansen, 2000 UT App 353, ¶¶ 16, 25, 17 P.3d 1135. ¶ 3 We agree with the court of appeals that Hansen was illegally detained. We reverse the court of appeals' conclusion that Hansen's consent was involuntary, however. We nevertheless affirm the court of appeals' decision on the alternative ground that the search was tainted by the illegal detention.",introduction
+390,6324601,1,1,"In a new direct appeal, the defendant raises claims that his sentence was excessive and that his plea and sentence were the result of ineffective assistance of trial counsel. The State asserts we lack jurisdiction over the appeal. The defendant’s notice of appeal, motion to proceed in forma pauperis, and poverty affidavit were all filed within 30 days after the final order granting the new direct appeal, as set forth by statute. 1 The district court granted the application to proceed in forma pauperis, and § 29-2306 provides in part: “If an application to proceed in forma pauperis is filed and granted, the Court of Appeals or Supreme Court shall acquire jurisdiction of the case when the notice of appeal is filed with the clerk of the district court.” However, the State points out that the poverty 1 See Neb. Rev. Stat. §§ 25-2301.01 and 29-2306 (Reissue 2016). - 773 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BLAKE Cite as 310 Neb. 769 affidavit had been executed by the defendant more than 45 days before the filing of the notice of appeal and, Neb. Ct. R. App. P. § 2-101(B)(4) (rev. 2015), in effect at the relevant time period, stated: The clerk of the district court shall within 2 business days of receipt of a notice of appeal send the following items to the Clerk of the Supreme Court: .... (4) [A] copy of the application to proceed in forma pauperis and accompanying poverty affidavit which has been executed no more than 45 days prior to the filing of notice of appeal[.]",introduction
+391,2392384,1,1,"1. The evidence adduced at trial showed the following. In the spring of 2004, Bryant was recently paroled, unemployed, and involved in drugs. On May 21, 2004, a really broke Bryant got a ride to Kilgore's home, ostensibly for the purpose of earning some money by assisting Kilgore, who was 68 years old and suffering from various health problems that affected his mobility. After Bryant accompanied Kilgore while he ran some errands, the two men returned to Kilgore's home. Then Bryant got into another of Kilgore's automobiles and waited while Kilgore went into his home. A teenager doing chores for Kilgore saw Kilgore take approximately $2,200 and a .44-magnum revolver from his safe. When Kilgore came out of his home, he was accompanied by Richards, whom Bryant had never met. Richards and Kilgore got into the automobile with Bryant, and they left Kilgore's residence with Kilgore driving. The following day, teenagers discovered Kilgore's body in the brush after noticing his automobile in a ditch off the roadway, almost completely hidden among kudzu vines. After the teens called 911, police discovered Richards' body, also in the brush. Kilgore's pockets were turned inside out. A few coins were found on the ground near his body, but neither his wallet nor any cash was ever found. As a result of their investigation, police arrested Bryant on May 24, 2004, in North Carolina, where he had fled after the shooting. The State presented testimony showing that, at approximately 5:00 p.m. on the day of the murders, Bryant called his girlfriend and his sister to pick him up from the crime scene and that, when they did so, a bloody Bryant said that he had had a fight with Kilgore and that he had shot [Kilgore] and a girl that was there. Evidence also showed that Bryant purchased a hotel room and a weed pipe and went clubbing in Buckhead on the night following the murders, although he had no money before the crimes. An acquaintance of Bryant testified that on the morning after the murders he drove Bryant to a dumpster, where Bryant disposed of a purse, and that Bryant told him that there was a gun inside the purse. The acquaintance led police to the dumpster, where police recovered Richards' purse with Kilgore's revolver inside. Bryant testified that he and the victims were en route to complete a drug deal when he and Kilgore argued, that Kilgore drove 30 to 50 feet down an abandoned, kudzu-covered driveway, and that he then turned around in his seat and pulled a gun on Bryant, who was sitting in the rear passenger seat behind Richards. Bryant claimed that he acted in self-defense after taking the gun from Kilgore, that he was in the rear seat area pushing against the headrest of the front passenger seat when he shot Kilgore in the head, and that he was coming out of the automobile when he shot Richards in the back and in the head. However, the State's ballistics expert, Kelly Fite, testified that the bullet that killed Kilgore and one of the bullets that struck Richards could not have been fired from inside the backseat of the automobile but were fired, instead, from the passenger side of the vehicle probably outside the front door or right at the door. An inmate testified that, while incarcerated with Bryant, Bryant told him that he shot Richards once in the back or side and once in the back of the head because she was a liability, she could identify him. Also while incarcerated, Bryant wrote letters to his girlfriend attempting to persuade her to say that she was in the automobile at the time of the murders and that Bryant shot Kilgore after Kilgore shot Richards, and he wrote to family members asking their help in persuading his girlfriend to lie for him. We find that the evidence, construed most favorably to the jury's verdicts, was sufficient to authorize a rational trier of fact to find Bryant guilty of the crimes charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Unified Appeal Procedure IV(B)(2) (providing that, in all death penalty cases, this Court shall determine whether the verdicts are supported by the evidence).",sufficiency of the evidence
+392,2007417,1,1,"The question of law to be answered is whether KRS 17.545, which restricts where registered sex offenders may live, may be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. We hold that it may not. Even though the General Assembly did not intend the statute to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them civil. Therefore, the retroactive application of KRS 17.545 is an ex post facto punishment, which violates Article I, Section 10 of the United States Constitution, and Section 19(1) of the Kentucky Constitution.",introduction
+393,865012,1,2,"¶8. Pursuant to Miss. Code Ann. § 93-13-253 and Butler, 865 So.2d 1126, we find that the conservatorship in this matter is invalid because notice was not provided to Charles spouse or one other relative. Therefore, we reverse the chancellor’s order appointing King as conservator, and we remand this case to the chancery court for further proceedings consistent with this opinion. ¶9. REVERSED AND REMANDED. SMITH, C.J., WALLER, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. COBB, P.J., NOT PARTICIPATING. 2 We note that the trial court actually certified interlocutory appeal “on the limited issue of whether or not the procedural requirements of Miss. Code Ann. § 93-13-281 apply to the establishment of conservatorships, or whether same are governed solely by Miss. Code Ann.§ 93-13253.” However, we find that Miss. Code Ann. § 93-13-253 is dispositive of this issue and that the discussion of any additional claims is unnecessary. Further, while Smith apparently argued the application of section 281 before the trial court, the argument in her brief before this Court only discusses section 281 “by way of analogy.” 4",conclusion
+394,4507679,1,1,"This is an appeal from an order disapproving the parties’ application for an order approving a lump-sum settlement on the grounds that the application was not in compliance with the Nebraska Workers’ Compensation Act.1 The Nebraska Workers’ Compensation Court found the application was not in the best interests of the claimant, after the claimant’s attorney objected to the compensation court’s requirement that he disclose the amount of his fees. Because the compensation court’s order of disapproval was not a final, appealable order, we dismiss this appeal for lack of jurisdiction.",introduction
+395,6500267,1,1,"In a probate action, the county court denied a petition by the adult children of the decedent asking for appointment of a special administrator and for an order restraining the personal representative during the pendency of a will contest that had been transferred to district court. The court denied the petition on the grounds that the transfer of the will contest to district court divested it of jurisdiction. The adult children appeal. We reverse, and remand for further proceedings. - 760 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports IN RE ESTATE OF ANDERSON Cite as 311 Neb. 758",introduction
+396,2744519,1,3,"
+Appellants argue that the Commission erred as matter of law by failing to apply the relevant legal standard in granting SCE&G's request because the additional capital costs could have been anticipated when SCE&G applied for an initial base load review order in 2008, and therefore, the additional costs were imprudent under the BLRA. In so arguing, they claim that the Commission erred by applying the prudence standard found in section 58-33-270(E) of the South Carolina Code, rather than the standard found in section 58-33-275(E). See S.C. Code Ann. §§ 58-33-270(E), -275(E). The purpose of the BLRA is to provide for the recovery of the prudently incurred costs associated with new base load plants . . . when constructed by investor-owned electrical utilities, while at the same time protecting customers of investor-owned electrical utilities from responsibility for imprudent financial obligations or costs. S.C. Energy Users Comm., 388 S.C. at 494–95, 697 S.E.2d at 592 (citing S.C. Code Ann. § 58–33–210 (Supp. 2009) (Editor's Note)). Therefore, the objectives of the BLRA are: (1) to allow SCE&G to recover its prudently incurred costs associated with the nuclear facility; and (2) to protect customers from responsibility for imprudent financial obligations or costs. Id. In an initial application for the approval of capital and construction costs pursuant to the BLRA, the Commission shall issue a base load review order approving rate recovery for capital costs if it determines, inter alia, that the utility's decision to proceed with construction of the plant is prudent and reasonable considering the information available to the utility at the time. S.C. Code Ann. § 58-33-270(A)(1). The Commission's order must establish: (1) the anticipated construction schedule for the plant including contingencies; (2) the anticipated components of capital costs and the anticipated schedule for incurring them, including specified contingencies; (3) the return on equity established in conformity with Section 58-33220(16); (4) the choice of the specific type of unit or units and major components of the plant; (5) the qualification and selection of principal contractors and suppliers for construction of the plant; and (6) the inflation indices used by the utility for costs of plant construction, covering major cost components or groups of related cost components. Each utility shall provide its own indices, including: the source of the data for each index, if the source is external to the company, or the methodology for each index which is compiled from internal utility data, the method of computation of inflation from each index, a calculated overall weighted index for capital costs, and a fiveyear history of each index on an annual basis. Id. § 58-33-270(B)(1)–(6); see also Friends of the Earth v. Pub. Serv. Comm'n of S.C., 387 S.C. 360, 370, 692 S.E.2d 910, 915 (2010) (listing the necessary components of an initial base load review order). However, (E) As circumstances warrant, the utility may petition the commission, with notice to the [ORS], for an order modifying any of the schedules, estimates, findings, class allocation factors, rate designs, or conditions that form part of any base load review order issued under this section. The commission shall grant the relief requested if, after a hearing, the commission finds: (1) as to the changes in the schedules, estimates, findings, or conditions, that the evidence of record justifies a finding that the changes are not the result of imprudence on the part of the utility; and (2) as to the changes in the class allocation factors or rate designs, that the evidence of record indicates the proposed class allocation factors or rate designs are just and reasonable. S.C. Code Ann. § 58-33-270(E) (emphasis added). Appellants argue that the Commission erred in applying section 58-33-270 to SCE&G's application. They argue that the proper legal standard in this case is found in section 58-33-275 of the BLRA, which provides: So long as the plant is constructed or being constructed in accordance with the approved schedules, estimates, and projections set forth in Section 58-33-270(B)(1) and 58-33-270(B)(2), as adjusted by the inflation indices set forth in Section 58-33-270(B)(5), the utility must be allowed to recover its capital costs related to the plant through revised rate filings or general rate proceedings. S.C. Code Ann. § 58-33-275(C). However, [i]n cases where a party proves by a preponderance of the evidence that there has been a material and adverse deviation from the approved schedules, estimates, and projections set forth in Section 5833-270(B)(1) and 58-33-270(B)(2), as adjusted by the inflation indices set forth in Section 58-33-270(B)(5), the commission may disallow the additional capital costs that result from the deviation, but only to the extent that the failure by the utility to anticipate or avoid the deviation, or to minimize the resulting expense, was imprudent considering the information available at the time that the utility could have acted to avoid the deviation or minimize its effect. Id. § 58-33-275(E) (emphasis added). In South Carolina Energy Users Committee v. SCE&G, we found that the Commission abused its discretion in allowing SCE&G to recoup contingency costs in an initial base load review order. 388 S.C. at 491, 697 S.E.2d at 590. In so finding, we said: [T]he enactment of section 58-33-270(E) of the South Carolina Code . . . reveals that the General Assembly anticipated that construction costs could increase during the life of the project. Under section 5833-270(E), SCE&G may petition the Commission for an order modifying rate designs. Id. at 496, 697 S.E.2d at 592–93. This is exactly the course that SCE&G followed here. Thus, we find the BLRA contemplates changes to an initial base load review order and provides the mechanism to accomplish such changes in section 58-33270, not section 58-33-275, as Appellants argue. Cf. Friends of the Earth, 387 S.C. at 369, 692 S.E.2d at 914–15 (stating that section 58-33-270(E) . . . provides that once a final order by the Commission has been issued, a 'utility may petition the [C]omission . . . for an order modifying any of the schedules, estimates, findings, class allocation factors, rate designs, or conditions that form part of any base load review order issued under this section,' and that [c]learly the General Assembly did not contemplate the Commission's ability to prevent subsequent modification of its orders under the [BLRA], as subsection (E) expressly provides the utility that right). On the other hand, section 58-33-275(E) applies only after a utility has already deviated from an existing base load review order and attempts to recoup costs from the deviation. In that situation, a party must demonstrate by a preponderance of the evidence that the utility has deviated from the original base load review order, and then the utility may only recoup costs that were not the result of imprudence. Thus, the Commission correctly rejected Appellants' attempt to convert the modification proceeding into a deviation proceeding, and because SCE&G sought to update the existing base load review order, section 58-33-270 plainly applied. See Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) ([I]t is not the court's place to change the meaning of a clear and unambiguous statute.); see also Sloan v. S.C. Bd. of Physical Therapy Exam'rs, 370 S.C. 452, 468, 636 S.E.2d 598, 606 (2006) (A statute as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers.).5 5 The titles of the sections lend further support to SCE&G's and ORS's positions as section 58-33-270 is entitled Base load review orders; contents; petitions for modification; settlement agreements between [ORS] and applicant, whereas, section 58-33-275 is entitled Base load review order; parameter; challenges; recovery of capital costs. (Emphasis added). See Beaufort Cnty. v. S.C. State Election Comm'n, 395 S.C. 366, 373 n.2, 718 S.E.2d 432, 436 n.2 (2011) (This Court may, of course, consider the title or caption of an act in determining the intent of the Legislature. (citation omitted)). Therefore, we find the Commission did not err in applying section 58-33270 to SCE&G's application for an additional base load review order to update the capital costs and construction schedules contained in the original base load review order.
+Relying on section 58-33-280(K) of the BLRA, Appellants next argue that the Commission should have conducted a prudency evaluation of the entire construction project going forward at the time of the modification request. We disagree. Section 58-33-280(K) provides: Where a plant is abandoned after a base load review order approving rate recovery has been issued, the capital costs and AFUDC[6] related to the plant shall nonetheless be recoverable under this article provided that the utility shall bear the burden of proving by a preponderance of the evidence that the decision to abandon construction of the plant was prudent. Without limiting the effect of Section 58-33-275(A), recovery of capital costs and the utility's cost of capital associated with them may be disallowed only to the extent that the failure by the utility to anticipate or avoid the allegedly imprudent costs, or to minimize the magnitude of the costs, was imprudent considering the information available at the time that the utility could have acted to avoid or minimize the costs. The commission shall order the amortization and recovery through rates of the investment in the abandoned plant as part of an order adjusting rates under this article. The mere fact that the BLRA provides for a course of action in the event of the abandonment of a construction project has no relevance under these circumstances. In fact, the express language of the BLRA contradicts Appellants' 6 AFUDC is the allowance for funds used during construction of a plant calculated according to regulatory accounting principles. S.C. Code Ann. § 58-33220(1) (Supp. 2013). contention. Section 58-33-275(A) provides: A base load review order shall constitute a final and binding determination that a plant is used and useful for utility purposes, and that its capital costs are prudent utility costs and expenses and are properly included in rates so long as the plant is constructed or is being constructed within the parameters of: (1) the approved construction schedule including contingencies; and (2) the approved capital costs estimates including specified contingencies. S.C. Code Ann. § 58-33-275(A). Moreover, [d]eterminations under Section 5833-275(A) may not be challenged or reopened in any subsequent proceeding, including proceedings under [s]ection 58-27-810 and other applicable provisions and [s]ection 58-33-280 and other applicable provisions of this article. Id. § 5833-275(B). Practically speaking, it would be nonsensical to include such a requirement at this stage. As the Commission aptly noted, [T]he BLRA was intended to cure a specific problem under the prior statutory and regulatory structure. Before adoption of the BLRA, a utility's decision to build a base load generating plant was subject to relitigation if parties brought prudency challenges after the utility had committed to major construction work on the plant. The possibility of prudency challenges while construction was underway increased the risks of these projects as well as the costs and difficulty of financing them. In response, the General Assembly sought to mitigate such uncertainty by providing for a comprehensive, fully litigated and binding prudency review before major construction of a base load generating facility begins. The BLRA order related to [the initial base load review order], is the result of such a process. It involved weeks of hearings, over 20 witnesses, a transcript that is more than a thousand pages long and rulings that have been the subject of two appeals to the South Carolina Supreme Court. The Commission found that the BLRA did not require it to reassess the prudency of the entire construction project at that base load order review stage, and we adopt its logic: Update proceedings are likely to be a routine part of administering BLRA projects going forward (including future projects proposed by other elective utilities), such that under the Sierra Club's argument, the prudence of the decision to build the plant will be open to repeated relitigation during the construction period if a utility seeks to preserve the benefits of the BLRA for its project. Reopening the initial prudency determinations each time a utility is required to make an update filing would create an outcome that the BLRA was intended to prevent and would defeat the principal legislative purpose in adopting the statute.[7] Therefore, we find Appellants' argument that the Commission should have conducted a prudency evaluation of the entire construction project at this modification stage unavailing.
+Next, Appellants argue that SCE&G failed to meet its burden to establish that the costs were prudent. We disagree. As pointed out in SCE&G's brief, Appellants do not argue that the decision is not supported by substantial evidence, but that the Commission should have 7 However, we agree with ORS that Appellants received the review they sought because the Commission addressed the prudency of the entire construction project anyway: In any event, although not required by the terms of the BLRA, the record in this proceeding has provided the Commission with the sufficient evidence on which to examine and evaluate the positions of SCE&G and the Sierra Club on the factual issue of whether continuing with the construction of the Units is prudent and whether the additional costs and schedule changes are prudent. Based on the evidence of the record before us, the Commission concludes that the construction of the Units should continue and that the additional costs and schedule changes are not the result of imprudence on the part of SCE&G . . . . decided the modification application differently. We agree that Appellants failed to demonstrate that the factual findings are unsupported by reliable, probative, and substantial evidence in the record. See Waters v. S.C. Land Res. Conservation Comm'n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996) (Substantial evidence is not a mere scintilla of evidence nor evidence viewed blindly from one side, but is evidence which, when considering the record as a whole, would allow reasonable minds to reach the conclusion that the agency reached. The possibility of drawing two inconsistent conclusions from the evidence will not mean the agency's conclusion was unsupported by substantial evidence. Furthermore, the burden is on appellants to prove convincingly that the agency's decision is unsupported by the evidence. (internal citations and quotation marks omitted)). To the contrary, the Commission parsed all of the evidence presented during the hearing and provided a detailed summary of all of the testimony on which it based its very technical findings. Thus, there is no doubt that the Commission's findings are supported by substantial evidence in the Record. Therefore, we find that this issue lacks merit.",analysis
+397,2386649,4,8,"Defendant contends the evidence presented at trial was insufficient to establish that he was guilty of the Cross murder or to support the special circumstance finding that the murder was committed in the course of a robbery. We conclude substantial evidence supports the challenged verdict. In reviewing a challenge to the sufficiency of the evidence, we `examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] `[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.' [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citation.] ( People v. Guerra, supra, 37 Cal.4th at p. 1129.) Defendant argues the evidence was insufficient to support the guilty verdict because the trial court should have excluded certain testimony and evidence, and because Jessica Brock's testimony was not credible. As discussed ante, we have concluded the challenged evidence, specifically the composite drawings of the suspects completed with Agent Bulman, Bulman's identification of defendant's photographs, and the presumptive blood tests on the seized jacket, was properly admitted. Therefore, that aspect of defendant's claim is without merit. As to Jessica's testimony, defendant is correct that Jessica's version of events changed numerous times between her pretrial statements to the police and the defense attorney, and during her trial testimony. However, we are convinced that a rational trier of fact reasonably could have believed the first version that Jessica gave to the police, the version that strongly incriminated defendant, and reasonably could have found that her story changed only because defendant, his family, Jessica's family, and even Jessica's own internal conflicted loyalties, pressured Jessica to lie and undermine the case against defendant. The possible shortcomings defendant points to in Jessica's testimony, Agent Bulman's identification of defendant's photographs, the presumptive blood tests on the jacket, and the evidence of the eyeglasses found at the scene were brought out through the examination of the relevant witnesses and counsel's arguments to the jury. On appeal we do not reevaluate the weight or credibility of this evidence, nor do we examine each piece of evidence in isolation. Viewed in the light most favorable to the jury's verdict, the evidence and the reasonable deductions arising from it adequately support the jury's finding that defendant was guilty of Agent Cross's murder beyond a reasonable doubt. Even were we to conclude the evidence reasonably might be reconciled with a contrary finding, this would not warrant a reversal of the judgment. Defendant challenges the robbery-murder special-circumstance finding on the grounds (1) that there was insufficient evidence that defendant intended to rob Agents Bulman and Cross; and (2) that the taking of the shotgun and keys constituted a robbery in the course of committing the murder, which would not support the special circumstance finding. (See People v. Marshall (1997) 15 Cal.4th 1, 41 [61 Cal.Rptr.2d 84, 931 P.2d 262] ( Marshall ).) (21) The special circumstance applies if defendant was engaged in the commission of, or the attempted commission of, a robbery. (§ 190.2, subd. (a)(17)(A).) The jury reasonably could have found from the evidence that the assailants identified the agents, who appeared to be civilians parked on a poorly lit street, as potential victims to rob, cased the victims by slowly driving by twice and by watching the agents from behind the vegetation-covered fence next to their car, and waited until it was dark to commit their crime. The jury reasonably could have found that when defendant and the other assailant approached the agents' car from behind, one on each side and with at least one of them being armed with a firearm, they intended to take the agents' personal property from their presence by force or fear with the intent of permanently depriving them of that property and had taken a substantial step towards completing the robbery, and that they therefore were engaged in the attempted commission of a robbery. ( Marshall, supra, 15 Cal.4th at p. 34 [defining robbery]; People v. Swain (1996) 12 Cal.4th 593, 604 [49 Cal.Rptr.2d 390, 909 P.2d 994] [To constitute an attempt, there must be (i) proof of specific intent to commit the target crime and (ii) a direct, ineffectual act done towards its commission.].) The jury also reasonably could have found that once the would-be robbers discovered their victims were armed law enforcement officers who might apprehend them on the spot, defendant decided to murder the agents in order to facilitate his and his partner's escape from the botched robbery. (See People v. Ainsworth (1988) 45 Cal.3d 984, 1025-1026 [248 Cal.Rptr. 568, 755 P.2d 1017] [robbery-felony-murder special circumstance includes murder committed during period the perpetrator is in flight from the crime until he reaches a place of temporary safety].) That the incident never progressed to the point where the assailants could say to the agents, This is a robbery, give us your property, is immaterial because the reasonable inferences the jury could draw from the evidence amply support the finding that committing a robbery was their unspoken intent. Similarly, given that the jury reasonably could have found that defendant was engaged in an attempt to commit a robbery by the time he and his partner first contacted the agents, and that defendant subsequently murdered Agent Cross during his flight from this unsuccessful attempt, we need not consider whether, as defendant contends, the taking of the shotgun and the keys was an incidental robbery in the course of a murder such that reliance on that evidence to prove the special circumstance would violate the rule we stated in Marshall, supra, 15 Cal.4th at page 41, that [t]he robbery-murder special circumstance applies to a murder in the commission of a robbery, not to a robbery committed in the course of a murder. In sum, we conclude the evidence was sufficient to support the jury's guilty verdict and its finding that the robbery-murder special circumstance was true.",sufficiency of the evidence
+398,2184759,1,4,"We hold that a defendant may be allowed on appeal a per diem credit pursuant to section 110-14 for incarceration prior to sentencing. The judgment of the appellate court, modifying the trial court's judgment of conviction, is affirmed. Appellate court judgment affirmed.",conclusion
+399,2189241,1,1,"
+On Sunday morning, September 16, 2001, David Triggs (hereinafter Petitioner) made the first of dozens [1] of calls to his ex-wife, Pamela Triggs (hereinafter Mrs. Triggs), who lived in Montgomery County, in violation of a protective order prohibiting him from having any contact with her. When he made many of the calls, which continued over a four-day period, Petitioner threatened to rape and murder his ex-wife and murder their three children, who were with him during a scheduled visitation when he called. Petitioner and Mrs. Triggs were married for almost seven and a half years when they divorced on March 1, 2002. They had three children together, who were eight, six, and four at the time of their divorce. Petitioner's four-day reign of terror, as Judge Ann S. Harrington, Circuit Court for Montgomery County, called it, was the culmination of a long history of a troubled relationship filled with domestic abuse. In her victim impact statement, Mrs. Triggs described some of Petitioner's controlling and abusive behavior that occurred over the course of their marriage and during the period at issue during this case. According to Mrs. Triggs, Petitioner, in the past, had held electric hedge clippers to her throat, pointed a gun to her head, fired a gun at her, and raped her four times. In 1996, she obtained her first protective order after Petitioner shot at her. When Mrs. Triggs attempted to leave her husband, Petitioner harassed her friends who were helping her, causing them to get peace orders against him. Petitioner also harassed Mrs. Triggs at work and threatened to kill her co-workers, which resulted in her place of work closing for two days and hiring security for three weeks. Mrs. Triggs claims she lost [her] job because of him. In addition, the couple lost their home and Mrs. Triggs's credit record was ruined when Petitioner refused to sign the papers to sell their home, telling the realtor he preferred to have the home foreclosed so as to destroy Mrs. Triggs. Mrs. Triggs also described how Petitioner verbally abused her and attempted to control her every move and thought. He dictated the types of clothes she could wear (no sweatpants or baggy clothes allowed), taped her telephone calls, removed her car radio, and disabled her car on several occasions. During the month before they separated, he would wake her up every time she fell asleep, allowing only one hour a night. After they separated, Mrs. Triggs related how Petitioner would tell the children to tell mommy her cement shoes are coming, tell mommy I am going to cut her head off, tell mommy she doesn't have long to live, and tell mommy I'm watching. On September 26, 2000, Mrs. Triggs obtained her second order of protection from the District Court of Maryland sitting in Montgomery County. She stated she was afraid for her life because her husband had shot at her in the past and sought the order because he wanted her to get an apartment and prostitute herself to support the family and threatened to burn her like a witch on a stick if she did not comply. The court issued an order, effective for one year, requiring Petitioner to refrain from threatening or abusing Mrs. Triggs and to begin counseling immediately. On March 28, 2001, the court amended the September 26 protective order pursuant to Mrs. Triggs's emergency motion to modify the order, ordering, among other things, that Petitioner have no contact with Mrs. Triggs, that he could not take the children out of the state or out of school if it was not his scheduled time, and that he must abide by a two-week visitation schedule requiring him to pick up his children from school on Friday and drop them off at school on Monday. One month later, in April 2001, Petitioner violated the protective order by banging on Mrs. Triggs's door in the middle of the night. Mrs. Triggs called the police, who arrested Petitioner when he tried to flee the apartment complex in his car. While he was in jail awaiting trial, Petitioner sent numerous letters to his children containing disturbing references to Mrs. Triggs and their marriage. Mrs. Triggs filed a complaint about the letters with the police commissioner because she feared for her and her children's personal safety. On July 23, 2001, Petitioner was convicted for violating the March 28 amended protective order. He was sentenced to 90 days in the Montgomery County Detention Center, with 36 days suspended and credit for 54 days, and one year of supervised probation. He was ordered, again, to have no contact with Mrs. Triggs. In mid-September 2001, a bench warrant was issued from the Circuit Court for Petitioner's arrest because Petitioner was telling his children that he wanted to put his wife in cement shoes. Because of a technical problem with the warrant, however, the Sheriff's Office for Montgomery County could not arrest Petitioner before he picked up his children on September 14, 2001, for his scheduled two-week visitation. On September 16, 2001, at approximately 11:45 on Sunday morning, Petitioner made the first of more than fifty calls occurring over a four-day period to Mrs. Triggs. [2] Petitioner called Mrs. Triggs while she was at home alone in her apartment in Gaithersburg. After Mrs. Triggs reminded Petitioner that he should not be calling her because of the protective order, he said, I don't give a fuck about a piece of paper, are you going to talk to me, you need to talk to me. When she did not respond, he continued saying, God dammit, Pamela, these children are dead by the end of this weekend. I don't want them, I want you, but I will kill them. Mrs. Triggs hung up and called the police immediately. Three Gaithersburg police officers arrived at Mrs. Triggs's house in response to her call. While she waited for the police, the phone rang about six times with the Caller-ID showing Petitioner's name and number. When the police arrived, she handed her phone to Officer Chris Vance, who listened to the messages that Petitioner had left. Officer Vance testified that the messages contained threats that if she [didn't] call him back, he [would] kill the kids. After being advised by the police that it was not safe for her to remain at home, Mrs. Triggs went to a friend's house. Officer Vance subsequently requested a warrant for Petitioner's arrest, which was issued late that afternoon. Petitioner continued to call Mrs. Triggs's phone and leave messages, making a total of fourteen calls that day. On Monday morning, September 17, 2001, Mrs. Triggs met with the Fugitive Division of the Sheriff's Office to assist them in their efforts to find Petitioner. Petitioner made four calls to Mrs. Triggs on Monday. On Tuesday, September 18, 2001, Petitioner made a total of twelve calls to Mrs. Triggs. At one point, he claimed he was giving one of their sons Ambient, a sleeping pill. He also asked Mrs. Triggs, who is a nurse, what does it mean when your respirations only get to one ... when your breathing, respirations are only one a minute. He also threatened to break [the children's] arms and their legs and then their neck. In another recorded call, he stated, In about two hours I'm going to call you with an interstate number or an exit number off of 270 where I'm going to leave something for you, or somebody. In yet another recorded call, he told her that she was down by one child and that will leave only two. He also told her that he was getting a very itchy trigger finger. In still yet another recorded call, he said Unfortunately, I don't care what [the] court orders, what laws or whatever you've got. It makes no difference to me ... I'm either going to be dead or in jail, and that's fine with me. At approximately nine or ten at night on September 18, while several sheriff's deputies waited with Mrs. Triggs at her home, Petitioner called and demanded that she meet him at a designated location. Petitioner said that Mrs. Triggs had to jump through hoops of fire to get to [her] kids and [her] first hoop was going to be this place, Good Time Auto. He told her to be at the auto shop by 11:00 p.m. Mrs. Triggs decided to meet him as he requested as part of a plan with the Sheriff's Office to locate Petitioner and the children. Mrs. Triggs, however, did not meet Petitioner at the auto shop because the officers decided it was unsafe for her to do so because the buildings were dark and there were two men standing outside. When she did not meet him there, he called again, after midnight. When Mrs. Triggs told Petitioner she was afraid of meeting him, he said, I'm not going to kill you yet. Petitioner then told Mrs. Triggs that, waiting for her at Good Time Auto, were four men ... and they are there to rape you while I listen on the other phone to you scream. Mrs. Triggs then testified: He said that he was going to beat me, and he was going to torture me, and then he was going to rape me and then he would kill me, and then he was going to shove his cock in my mouth. And he said that if I didn't do it, he said I would never see my children while I was alive, he kept telling me, Make no bones about it, you are dead tonight, you will die tonight, it's up to you whether or not you see your children before you do. Petitioner then called again, telling Mrs. Triggs that he still wanted her to go to Good Time Auto. When she told him that she was in a safe place, Petitioner became very upset and his voice went flat. He then said, Well, now you need to pick one. Pick one child to die, it is time for another one to die, you need to pick one. Mrs. Triggs, who now was being encouraged by the deputies to continue talking with Petitioner because they had been able to trace his cell phone to Ocean City, said that she could not pick a child and tried to get him to talk about other things. Mrs. Triggs testified: He kept saying, Oh, well, if you can't pick one, I will. And he got my daughter on the phone and she was kind of real sleepy, she is like, Mommy? And I am like, Hi, baby. And she is like, Mommy? And I am like, Are you okay? And he goes, Uh, uh, uh, say goodbye to mommy forever. And I heard her scream. Mrs. Triggs testified that she was so hysterical that she could not get back on the phone with Petitioner anymore. Petitioner called again, leaving a message. Sargent Maxwell Uy listened to the message and testified that Petitioner said, I hope you know a good orthopaedic surgeon. At this point, Petitioner had been located in Ocean City, and officers there were negotiating with him to try to get him to release the children. Petitioner was apprehended on September 19, 2001, and Mrs. Triggs's children were returned to her physically unharmed later that day. During the period of September 16 to September 19, while Petitioner was calling Mrs. Triggs, he also called and threatened his mother, grandmother, sisters, and nieces and nephews, who, because they lived near Ocean City, were escorted to the police department for their own safety. While he was in jail for the second time awaiting trial, Petitioner sent numerous letters to his children and to his sister that contained disturbing references about Mrs. Triggs. [3]
+On October 18, 2001, Petitioner was indicted by the State on the following forty-three charges: one count of telephone misuse, [4] thirty counts of violating a protective order, [5] four counts of harassment, [6] and eight counts of telephone threats. [7] See supra note 2 for a chart of the calls that were charged. During a pre-trial hearing, Judge Harrington of the Circuit Court for Montgomery County, heard, among other things, Petitioner's motion to strike duplicitous counts. Petitioner argued that the telephone misuse charge and the harassment charges were the same and that the thirty counts of violating a protective order were duplicitous because they constituted a course of conduct instead of separate incidents. The court denied his motion, noting that the State in its assertion has some technical or record procedure to identify each and every call, there is a time when a connection occurs, there is a time when a connection disconnects.... If it constitutes a violation of law, regardless of how brief it is, if it can be verified and proven, so be it. Following a jury trial, Petitioner was convicted of thirty of the forty-three counts: one count of telephone misuse, four counts of harassment, seven counts of telephone threats, and eighteen counts of violating a protective order. At the sentencing hearing, conducted about two months after the trial, the court sentenced Petitioner to three-years imprisonment for the telephone misuse conviction, consecutive six month sentences for each of the harassment and telephone threat convictions, and consecutive one-year sentences totaling eighteen years for each violation of a protective order conviction. The sentences resulted in a term of imprisonment totaling twenty-six years and six months. When she imposed the sentence, Judge Harrington stated: It is ... extremely significant to me that these offenses occurred when you were already on probation for violating a protective order. There is evidence before me that you have said that you have no regard for any court order that the Court might put in place and no regard for any law that might be enacted because you are simply not going to adhere to it. I don't know how you got the information as to where Ms. Triggs was now located but I think it's apparent in letters you sent even after being convicted of these offenses, that you had that information and you were using your knowledge of it when everybody had gone to great lengths on the State's side to try to keep you from knowing that, to further torment her with your ability to control where she goes and what she does even when you are confined.... I think clearly there is an obsession there that nothing that the Court or the laws ... have been able to dislodge.... the concern for me in formulating a sentence in this case is really the aspect of protection, not rehabilitation, not general deterrence, but protection for the family involved in this particular case. In an unreported opinion, the Court of Special Appeals vacated the sentences for harassment and telephone threats and affirmed the eighteen convictions and sentences for violating a protective order. With respect to the harassment and telephone threats, the court concluded that Petitioner was punished for the same conduct under Section 32-19A of the Montgomery County Code, regarding harassment, and Section 555A of Article 27 of the Maryland Code, regarding telephone threats. Applying Miles v. State, 349 Md. 215, 707 A.2d 841 (1998), the intermediate appellate court determined that the sentences for harassment and telephone threats merged under the rule of lenity because the county ordinance did not clearly indicate an intent of cumulative punishment when the conduct also violated another statute. [8] With respect to the eighteen counts of violating a protective order, the Court of Special Appeals observed that Section 4-509 of the Family Law Article provides penalties for each offense of violating a protective order. Because each call constituted a separate `offense,' the court affirmed Petitioner's eighteen convictions for violating a protective order. We granted Petitioner's petition for a writ of certiorari, Triggs v. State, 379 Md. 225, 841 A.2d 340 (2004), which presented the following question for our review: Where Petitioner was convicted of harassing and threatening his wife, by telephone, over a period of two days, was it error to impose separate, one-year, consecutive sentences as to each of eighteen convictions under the Family Law statute? Although Petitioner frames his question in terms of the multiple sentences only and does not address the multiple offenses and convictions, he maintained at oral argument, and the State likewise conceded this point, that his argument necessarily implicates what we have called the unit of prosecution, which arises in the context of determining whether the charging of multiple offenses is appropriate. Our focus in this opinion, thus, is the unit of prosecution the General Assembly intended in order to trigger the penalty provisions for violating a protective order. When a protective order requires an abuser to have no contact with a victim, we conclude that repeated calls constitute separate acts and therefore separate offenses for the purposes of the sentencing provisions requiring penalties for each offense in Section 4-509 of the Family Law Article.",introduction
+400,2638368,1,6,"Because the Basic Juvenile Court Act provides that any person aggrieved may appeal, we hold that the state may appeal these juvenile restitution orders, and that restitution must be made to any persons who have suffered loss. We affirm the Court of Appeals, and remand the cases to the juvenile court with instructions to enter restitution orders consistent with this opinion, subject to sufficient proof of loss. ALEXANDER, C.J., SMITH, JOHNSON, MADSEN, SANDERS, IRELAND, BRIDGE, and CHAMBERS, JJ., concur.",conclusion
+401,2598207,1,5,"
+This case comes to us as a denial of a petition for writ of mandate. Although an appellate court defers to a trial court's factual determinations if supported by substantial evidence, where, as here, the trial court's decision did not turn on any disputed facts, the trial court's decision is subject to de novo review. ( Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916, 129 Cal.Rptr.2d 811, 62 P.3d 54; Gilbert v. City of Sunnyvale (2005) 130 Cal. App.4th 1264, 1275, 31 Cal.Rptr.3d 297 [In resolving questions of law on appeal from a denial of a writ of mandate, an appellate court exercises its independent judgment].) The issues before us present questions of law and review is de novo.
+
+Article VII of the California Constitution establishes a system of civil service employment for state government: 'The civil service includes every officer and employee of the State except as otherwise provided in this Constitution.' (Cal. Const., art. VII, § 1, subd. (a).) The hallmark of our civil service system is that appointments and promotions are based on merit ascertained by competitive examination. (Art. VII, § 1, subd. (b).) [11] The purposes of article VII as disclosed in the ballot argument of its predecessor provision are twofold: (1) to encourage efficiency and economy in state government, and (2) to eliminate the `spoils system' of political patronage by ensuring that demonstrated fitness—rather than political considerations—spurs all appointments to public service. ( Professional Engineers v. Department of Transportation (1993) 13 Cal.App.4th 585, 592, 16 Cal.Rptr.2d 599.) While article VII does not expressly prohibit the use of private contractors to perform state functions, judicial construction of this provision has long held that a restriction upon the use of such private contractors is necessary to fulfill its purposes. `Were the rule otherwise, the civil service system could be entirely undone by a system of contracting; and the state's work force could be dominated by independent contractors who would be hired from job to job.' Such a system, operating without regard to considerations of economy or efficiency, and open to a `patronage/spoils system' method of contracting, would conflict with the electorate's probable intent in adopting article VII and its predecessor. ( Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at p. 564, 63 Cal.Rptr.2d 467, 936 P.2d 473; California State Employees' Assn. v. Williams (1970) 7 Cal.App.3d 390, 397, 86 Cal.Rptr. 305 [The restriction on `contracting out' emanates from an implicit necessity for protecting the policy of the organic civil service mandate against dissolution and destruction].) Decisional law construed article VII as a restriction, but not a total prohibition, against private contracting by public agencies, and developed three exceptions. The first, called the nature of the services rule, was explicated in State Compensation Ins. Fund v. Riley (1937) 9 Cal.2d 126, 69 P.2d 985. In Riley, we held that the employment of an outside attorney by the State Compensation Insurance Fund, which had its own in-house attorneys, violated article XXIV, the predecessor provision to article VII. We observed: There undoubtedly is a field in which state agencies may enter into contracts with independent contractors. But the true test is not whether the person is an `independent contractor' or an `employee', but whether the services contracted for, whether temporary or permanent are of such a nature that they could be performed by one selected under the provisions of the civil service. If the services could be so performed then in our opinion it is mandatory upon such appointing power to proceed in accordance with the provisions of the Constitution and statute above summarized. ( Id., at p. 135, 69 P.2d 985.) [I]f the services cannot be adequately rendered by an existing agency of the public entity ... the contract is permissible. ( California State Employees' Assn. v. Williams, supra, 7 Cal.App.3d at p. 397, 86 Cal.Rptr. 305.) The second exception to article VII's restriction on contracting out government functions to private entities is termed the new state function rule. [T]he restriction is inapplicable if the state seeks to contract for private assistance to perform new functions not previously undertaken by the state or covered by an existing department or agency. ( Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at p. 549, 63 Cal.Rptr.2d 467, 936 P.2d 473; California State Employees' Assn. v. Williams, supra, 7 Cal. App.3d at p. 399, 86 Cal.Rptr. 305 [the state civil service suffers no displacement and the underlying constitutional policy is not offended when a new state activity is conducted by contract with a separate public or private entity].) The third exception to article VII is referred to as the cost savings exception. In California State Employees' Assn. v. State of California (1988) 199 Cal.App.3d 840, 245 Cal.Rptr. 1232, the Court of Appeal upheld section 19130, which, under specified conditions, allows the state to contract with private entities to perform personal services to achieve cost savings, against a claim that the statute violated article VII. Discussing that holding in our 1997 Professional Engineers opinion, we explained that the savings objective of section 19130 was permissible if, pursuant to the statute, the state can achieve these savings without ignoring other applicable civil service requirements (e.g., use of publicized, competitive bidding, no undercutting of state pay rates, no displacement of state workers or infringement of affirmative action plans, and no overriding public interest in having the state perform the function). ( Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at p. 549, 63 Cal.Rptr.2d 467, 936 P.2d 473.) These exceptions to article VII, derived from its restriction on private contracting, defined the scope of the Legislature's statutory efforts to permit some contracting out of government functions prior to the enactment of Proposition 35. This is plainly true of the statutes involved in this matter, sections 14101, 14130 et seq., and. 19130, all of which incorporate those exceptions. Under section 14101, Caltrans shall contract with qualified architects and engineers for the performance of work when it is determined by the Director of Transportation, with the approval of the Director of Finance, that the obtainable staff is unable to perform the particular work within the time the public interest requires such work to be done. Thus, this authorization includes a condition that conforms to the nature of the services exception. Similarly, section 14130 expresses the Legislature's intent that Caltrans contract for the services of engineers, [and] architects, ... whenever the department is inadequately staffed to satisfactorily carry out its program of project study reports, project development, surveying, and construction inspection in a timely and effective matter. (§ 14130, subd. (b); see also § 14131 [Services contracted for shall not cause the displacement of any permanent, temporary, or part-time employee of the department].) These sections appear consistent with decisional law interpreting article VII. ( Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at p. 551, 63 Cal.Rptr.2d 467, 936 P.2d 473.) This is also true of section 19130, which authorizes state agencies to enter into personal service contracts with outside entities to achieve costs savings but only if one of two conditions is met. Either [t]he contract is for a new state function and the Legislature has specifically mandated or authorized the performance of the work by independent contractors (§ 19130, subd. (b)(2)), or [t]he services contracted are not available within civil service, cannot be performed satisfactorily by civil service employees, or are of such a highly specialized or technical nature that the necessary expert knowledge, experience, and ability are not available through the civil service system. (§ 19130, subd. (b)(3); see Professional Engineers v. Department of Transportation, supra, 13 Cal.App.4th at p. 594, 16 Cal.Rptr.2d 599 [noting section 19130, subdivision (b)(2) is a codification of the `new state function' test].)
+Our decision in Professional Engineers v. Department of Transportation, supra, 13 Cal.App.4th 585, 16 Cal.Rptr.2d 599, provides a further indication that pre-Proposition 35 statutes regulating private contracting were constrained by article VII limitations. In Professional Engineers, we declined to overrule the decisional law that had inferred article VII's restriction on private contracting, and rejected legislative attempts to expand Caltrans's authority to contract with private entities for architectural and engineering services beyond the limits permitted by the exceptions to article VII. Professional Engineers had its genesis in a 1986 lawsuit brought by Professional Engineers to enjoin Caltrans from contracting with private entities to carry out state highway projects traditionally performed by civil service employees. The 1986 litigation resulted in a permanent injunction, issued in 1990, prohibiting Caltrans from (1) contracting privately for engineering and inspection services for highway projects unless the work was to be performed in compliance with the then existing criteria set forth in section 14101 and former section 14130 et seq.; (2) entering into cooperative agreements with local entities when private entities were to perform part or all of the work; and (3) awarding contracts to private entities for construction survey staking. ( Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at p. 554, 63 Cal.Rptr.2d 467, 936 P.2d 473.) In response to the injunction, the Legislature adopted chapter 433. (Stats.1993, ch. 433, p. 2448.) Chapter 433 amended section 14130 in order (1) to allow Caltrans 'continued flexibility' to contract privately as needed to assure timely delivery of its projects; and (2) to afford `a new and independent basis upon which to justify contracting out actions.' ( Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at p. 552, 63 Cal. Rptr.2d 467, 936 P.2d 473.) Among its provisions, the amendment to section 14130 stated that the use of private consultants was necessary to increase Caltrans's project delivery on state highway construction projects; that its use of consultants to assist project delivery was a new state function; and that Caltrans was not required to use existing state employees or hire new staff to meet the goals set forth in the chapter. ( Id., at pp. 552-553, 63 Cal.Rptr.2d 467, 936 P.2d 473.) Following the enactment of chapter 433, Caltrans sought to dissolve the 1990 injunction barring its use of private contractors except as permitted by established exceptions to article VII. The trial court declined to do so. It concluded that Chapter 433's legislative findings and directives are `obviously erroneous, unreasonable and inconsistent with the constitutional civil service mandate,' and for that reason the provisions are unconstitutional to the extent they purport to authorize Caltrans to contact privately without a factual showing that the contract is permissible under applicable constitutional principles. ( Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at p. 557, (53 Cal.Rptr.2d 467, 936 P.2d 473.) A divided Court of Appeal disagreed and remanded the matter to the trial court with directions to dissolve the injunction. We granted review. Caltrans asked us to overrule the body of decisional law originating with State Compensation Ins. Fund v. Riley, supra, 9 Cal.2d 126, 69 P.2d 985, that had construed article VII as a restriction on private contracting arid developed the exceptions to the restriction. Caltrans argued that ballot arguments made in connection with the predecessor provision to article VII demonstrated that the provision was only intended to implement merit as the basis of appointments and promotion in state service, but was silent on the issue of outside contracting. We declined to disapprove this body of law. As an analytical matter, Riley's rule seems appropriate to assure that the state civil service is not neglected, diminished, or destroyed through routine appointments to `independent contractors' made solely on the basis of political considerations and cronyism. ( Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at pp. 563-564, 63 Cal.Rptr.2d 467, 936 P.2d 473.) Furthermore, even assuming for the sake of argument that Riley's constitutional interpretation was originally flawed, under settled rules of construction we must presume that Riley's interpretation was preserved and reincorporated into the Constitution on two subsequent occasions when (1) in 1970, the voters reenacted an amended version of former article XXIV pursuant to the recommendation of the California Constitution Revision Commission, and (2) in 1976, the voters adopted the substance of former article XXIV as new article VII. ( Id., at p. 564, 63 Cal.Rptr.2d 467, 936 P.2d 473.) Addressing Caltrans's various policy reasons for urging this court to overrule the case law at issue, we observed that although these reasons, if factually based, might support a constitutional amendment to clarify, or indeed abrogate, the private contracting restriction, they offer no solid ground for ignoring traditional principles of stare decisis. ( Id., at p. 566, 63 Cal.Rptr.2d 467, 936 P.2d 473.) We then turned to the question of whether chapter 433 affords an independent basis for overturning the trial court's injunction and enforcement orders. ( Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at p. 568, 63 Cal.Rptr.2d 467, 936 P.2d 473.) In answering this question we observed that [m]ost provisions of Chapter 433 appear intended to dispense with, rather than to satisfy, the constitutional civil service mandate. ( Id., at p. 570, 63 Cal.Rptr.2d 467, 936 P.2d 473.) We observed that certain new subdivisions of the amended version of section 14130 that conflicted with the civil service mandate were unsupported by express or implied findings or by any evidentiary support. ( Ibid. ) Therefore, [w]e conclude[d] that Chapter 433 contains no express or implied findings sufficient on their face to justify dissolving the trial court's injunction. To the extent Chapter 433's provisions conflict with the civil service mandate, they are invalid. ( Id., at p. 572, 63 Cal.Rptr.2d 467, 936 P.2d 473.) Proposition 35 expressly removed all article VII restrictions on the ability of government entities to contract out for architectural and engineering services. We turn now to the question of whether Proposition 35 also impliedly repealed statutes regulating private contracting that were enacted with the article VII restrictions in mind, particularly sections 14101, 14130 et seq., and 19130.
+In construing the constitutional and statutory provisions added to the state Constitution and the Government Code by Proposition 35, we apply the same interpretive principles to each. The principles of constitutional interpretation are similar to those governing statutory construction. In interpreting a constitution's provisions, our paramount task is to ascertain the intent of those who enacted it. [Citation.] To determine that intent, we `look first to the language of the constitutional text, giving the words their ordinary meaning.' [Citation.] If the language is clear, there is no need for construction. [Citation.] If the language is ambiguous, however, we consider extrinsic evidence of the enacting body's intent. ( Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 122, 105 Cal.Rptr.2d 46,18 P.3d 1198.) Similarly, [i]n interpreting a voter initiative ..., we apply the same principles that govern statutory construction. [Citation.] Thus, we turn first to the language of the [initiative], giving the words their ordinary meaning.' [Citation.] The [initiative's] language must also be construed in the context of the statute as a whole and the [initiative's] overall ... scheme. ( People v. Rizo (2000) 22 Cal.4th 681, 685, 94 Cal.Rptr.2d 375, 996 P.2d 27.) Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure [citation] and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language. ( Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 543, 277 Cal.Rptr. 1, 802 P.2d 317.) Where there is ambiguity in the language of the measure, [b]allot summaries and arguments may be considered when determining the voters' intent and understanding of a ballot measure. ( Legislature v. Deukmejian (1983) 34 Cal.3d 658, 673, fn. 14, 194 Cal.Rptr. 781, 669 P.2d 17.) The unambiguous intent of the electorate in adding article XXII to the state Constitution via Proposition 35 was to remove article VII's restriction on the use of private contractors by state agencies for architectural and engineering services: Nothing contained in Article VII of this Constitution shall be construed to limit, restrict or prohibit the State or any other governmental entities, including, but not limited to, cities, counties, cities and counties, school districts and other special districts, local and regional agencies and joint power agencies from contracting with private entities for the performance of architectural and engineering services. (Cal. Const., art. XXII, § 2.) Moreover, the initiative's statement of purpose and intent explicitly states that the removal of existing restrictions on contracting for architectural and engineering services is part of the intent of the electorate in enacting the initiative. (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) text of Prop. 35, § 2, subd. (a), p. 65; see appen. A, p. ii.) Additionally, section 4529.11 makes it clear that the elimination of article VII restrictions on private contracting applies to transportation projects. [5] While the initiative does not expressly repeal sections 14101, 14130 et seq., and 19130, we conclude that the constitutional and statutory provisions of the initiative, viewed in the context of the initiative as a whole, impliedly repeal these statutes. Notwithstanding the presumption against repeals by implication, repeal may be found where (1) the two acts are so inconsistent that there is no possibility of concurrent operation, or (2) the later provision gives undebatable evidence of an intent to supersede the earlier provision. ( Hays v. Wood (1979) 25 Cal.3d 772, 784, 160 Cal.Rptr. 102, 603 P.2d 19; accord, Chatsky and Associates v. Superior Court (2004) 117 Cal.App.4th 873, 877, 12 Cal. Rptr.3d 154.) Because the doctrine of implied repeal provides that the most recently enacted statute expresses the will of the Legislature ( In re Thierry S. (1977) 19 Cal.3d 727, 744, 139 Cal.Rptr. 708, 566 P.2d 610), application of the doctrine is appropriate in those limited situations where it is necessary to effectuate the intent of drafters of the newly enacted statute. `In order for the second law to repeal or supersede the first, the former must constitute a revision of the entire subject, so that the court may say it was intended to be a substitute for the first.' ( Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 868, 167 Cal.Rptr. 820, 616 P.2d 802, quoting Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 176, 74 P.2d 252; see also Sutherland, Statutory Construction (6th ed.2002) § 23.9, p. 461 [Noting that courts will infer the repeal of a statute only when ... a subsequent act of the legislature clearly is intended to occupy the entire field covered by a prior enactment].) Finally, because the power to legislate is shared by the Legislature and the electorate through the initiative process (Cal. Const., art. IV, § 1), the principles governing repeals by implication where the statutory conflict is the result of enactments by the Legislature should also apply where, as here, the question is whether the provisions of an initiative impliedly repealed preexisting statutes. The standards for analyzing whether a statute has been impliedly repealed by constitutional amendment or another statute are the same. ( Barratt American, Inc. v. City of San Diego (2004) 117 Cal.App.4th 809, 817, 12 Cal.Rptr.3d 132 [`The same standards apply in determining whether a constitutional amendment impliedly repealed a statutory provision']; see Martello v. Superior Court (1927) 202 Cal. 400, 404, 261 P. 476 [statutes that were verbatim repetition of a constitutional provision permitting stipulation to a judge pro tempore that was omitted by subsequent constitutional amendments were also impliedly repealed].) When we examine the constitutional and statutory provisions of Proposition 35, in light of the initiative as a whole, we find that they demonstrate a clear intent by the electorate to supersede prior law, under which the ability of state agencies to contract with private entities for architectural and engineering services was limited by article VII and article VII-derived statutory restrictions. Article XXII, section 1 grants to the State of California and all other governmental agencies the choice and authority to contract with qualified private entities for architectural and engineering services. Section 2 provides that Nothing contained in Article VII of this Constitution shall be construed to limit, restrict or prohibit the State or any other governmental entities ... from contracting with private entities for the performance of architectural and engineering services. (Cal.Const, art. XXII, § 2.) Although article XXII is silent as to the statutes at issue, other provisions of the initiative, including the statutory provisions, support a finding of implied repeal. The statement of intent expresses the intention to eliminate existing restrictions. (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) text of Prop. 35, § 2, subd. (a), p. 65; see appen. A, p. ii.) The use of the plural restrictions, combined with the absence of a specific reference to article VII, indicates an intention to remove all such restrictions, whether constitutional or statutory. ( People v. Rizo, supra, 22 Cal.4th at p. 685, 94 Cal.Rptr.2d 375, 996 P.2d 27 [in construing the language of an initiative, the reviewing court gives words their ordinary meaning].) Several of the statutory provisions added to the Government Code by the initiative also support the application of the doctrine of implied repeal. For example, section 4529.20 states that [t]his act seeks to comprehensively regulate the matters which are contained within its provisions. (Italics added.) Section 4529.19 provides that [t]his act shall be liberally construed to accomplish its purposes. Notably, too, section 4529.18 provides that [i]f any act of the Legislature conflicts with the provisions of this act, this act shall prevail. Finally, the initiative, while authorizing the Legislature to amend the initiative by statute restricts that power to such amendments as will further its purposes. (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) text of Prop. 35, § 5, p. 66; see appen. A, p. iv.) Moreover, both the Attorney General's summary of Proposition 35 and the analysis of the measure by the Legislative Analyst put the electorate on notice that the measure was intended to repeal all article VII-based restrictions on private contracting. The summary explained that a yes vote meant that [t]he state could contract with private individuals or firms for architectural and engineering services in all situations rather than only under certain conditions ( such as when the work is of a temporary nature or of such a specialized nature that it cannot be provided by state employees.) (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) Ballot Measure Summary, Prop. 35, p. 2; see appen. A, p. vi.) The italicized language clearly alludes to such exceptions to article VII-based restrictions as those found in sections 14101, [obtainable staff is unable to perform the particular work within the time the public interest requires such work to be done], 14130, subdivision (b) [the department is inadequately staffed to satisfactorily carry out its program of project study reports, project development, surveying, and construction inspection in a timely and effective manner], and 19130, subdivision (b)(3) [the services contracted ... are of such a highly specialized or technical nature that the necessary expert knowledge, experience, and ability are not available through the civil service system].) Similarly, the Legislative Analyst's analysis of the measure summarized existing law by noting that private contracting was only permitted if services needed by the state are: (1) of a temporary nature, (2) not available within the civil service, or (3) of a highly specialized or technical nature. (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) Analysis of Prop. 35 by Legis. Analyst, p. 19; see appen. A, p. viii.) In summary, Proposition 35 authorizes public entities to contract for architectural and engineering services free of article VII restrictions and other existing restrictions; represents a comprehensive regulation of the entire subject of private contracting for those services; prevails over conflicting acts of the Legislature; must be construed liberally to achieve its goal of encouraging and authorizing private contracting of architectural and engineering services; and permits only such statutory amendments by the Legislature as will further its purposes. Moreover, at the time the initiative was proposed, the voters were informed that enactment of Proposition 35 would eliminate both the article VII rule and its exceptions. These provisions cannot be reconciled with the existing statutes that authorize private contracting by Caltrans of architectural and engineering services, subject to conditions derived from the exceptions to article VII's rule generally restricting such contracting. That rule has been abrogated by Proposition 35 and if the rule no longer has any force, neither should its exceptions. We therefore conclude that Proposition 35 impliedly repealed the particular statutes at issue here. [6] Although Professional Engineers asserts that the pre-Proposition 35 statutes are consistent with Proposition 35, it does not specifically attempt to reconcile them. Rather, its chief argument is less about the fate of these particular statutes than the broader question of who has authority to regulate private contracting for architectural and engineering services by state agencies in the post-Proposition 35 landscape. Professional Engineers explains: By enacting Proposition 35, the voters intended to expand the `State of California's' power to choose when and how to contract out for [architectural and engineering] services. A primary issue before this Court is to whom the voters intended that expanded power to be given. In the view of Professional Engineers, prior to the enactment of Proposition 35, the Legislature exercised plenary power in this area, subject to article VII restrictions on its authority. Therefore, the elimination of the Article VII restriction on contracting is intended to lift the restriction on the Legislature's power to authorize individual state departments to contract out, thereby expanding the Legislature's power over authorizing [architectural and engineering] contracting. (Original emphasis.) However, Professional Engineers argues, unless and until the Legislature uses its expanded power, sections 14101, 14130 et seq., and 19130 remain in effect, and Caltrans's authority to enter into contracts with private entities for architectural and engineering services is subject to the conditions set forth in those statutes. Professional Engineers bases this reading of Proposition 35 on its construction of the phrase State of California in article XXII, section 1, as referring only to the Legislature. Professional Engineers also directs us to the principle that, when a constitutional provision removes a restriction on the Legislature's authority, the provision must be liberally interpreted as an expansion of the Legislature's power. In addition to urging that its interpretation of Proposition 35 is correct, Professional Engineers contends that the alternative interpretation, that the initiative impliedly repealed the statutes at issue, creates a separation of power conflict because such construction divests the Legislature of the power to regulate private contracting and places it in the hands of executive branch agencies. Moreover, Professional Engineers argues that, if current statutory regulations of private contracting are deemed repealed by implication, then no statutory authorization exists at all for Caltrans to contract for architectural and engineering services with private entities. At the outset, we examine the issue of Legislature's plenary authority to determine the circumstances under which public agencies may enter into private contracts for architectural and engineering services, because appeal to that authority is central to Professional Engineers' arguments. Plenary authority and exclusive authority are not synonymous concepts. (See Independent Energy Producers Assn. v. McPherson (2006) 38 Cal.4th 1020, 1035-1037, 44 Cal.Rptr.3d 644, 136 P.3d 178.) Under our constitutional system the Legislature is not the exclusive source of legislative power. The legislative power of this State is vested in the California Legislature which consists of the Senate and the Assembly, but the people reserve to themselves the powers of initiative and referendum. (Cal. Const., art. IV, § 1.) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them. (Cal. Const., art. II, § 8, subd. (a).) The electorate's legislative power is generally coextensive with the power of the Legislature to enact statutes. ( Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 253, 45 Cal.Rptr.2d 207, 902 P.2d 225.) Such statutes, moreover, like legislative enactments, are presumed to be valid. ( Legislature v. Eu (1991) 54 Cal.3d 492, 501, 286 Cal.Rptr. 283, 816 P.2d 1309.) If, therefore, as Professional Engineers maintains, the Legislature has plenary authority to regulate private contracting by public agencies, then so, too, does the electorate. By enacting Proposition 35, the electorate has exercised its authority. Our role as a reviewing court is to simply ascertain and give effect to the electorate's intent guided by the same well-settled principles we employ to give effect to the Legislature's intent when we review enactments by that body. ( People v. Rizo, supra, 22 Cal.4th at p. 685, 94 Cal.Rptr.2d 375, 996 P.2d 27.) We do not, of course, pass upon the ``wisdom, expediency, or policy'' of enactments by the voters any more than we would enactments by the Legislature. ( California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632, 59 Cal.Rptr.2d 671, 927 P.2d 1175.) Central to Professional Engineers' argument that the purpose of Proposition 35 was to expand the Legislature's power is its interpretation of the phrase State of California in section 1 of article XXII as referring solely to the Legislature. That section reads in pertinent part: The State of California and all other governmental entities, . . ., shall be allowed to contract with qualified private entities for architectural and engineering services for all public works of improvement. ( Ibid.) Professional Engineers maintains that [fundamental principles of statutory construction confirm its interpretation of the phrase. But fundamental principles of construction, applicable equally to constitutional provisions, statutes and initiatives, require us to give words in such texts their ordinary meanings. ( Thompson v. Department of Corrections, supra, 25 Cal.4th at p. 122, 105 Cal.Rptr.2d 46, 18 P.3d 1198.) Of course, in construing the statute, `[t]he words ... must be read in context, considering the nature and the purpose of the statutory enactment,' ( People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301, 58 Cal.Rptr.2d 855, 926 P.2d 1042.) The ordinary meaning of the phrase State of California, as it refers to state government, includes all three branches, legislative, executive and judicial. (See Cal. Const., art. Ill, § 3.) Thus, section 1, in tandem with section 2, of article XXII grants all three branches of government the authority to contract with private entities for architectural and engineering services unimpeded by article VII restrictions. This interpretation is supported if we examine the phrase in context. The initiative specifically designates the Legislature in section 4, where newly added Government Code section 4529.18 provides, If any act of the Legislature conflicts with the provisions of this act, this act shall prevail. It also refers to each house of the Legislature in section 5, which sets forth the Legislature's authority to amend the initiative by statute. (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) text of Prop. 35, § 5, p. 66; see appen. A, p. iv.) These references demonstrate that the drafters of the initiative were perfectly capable of designating the Legislature by name where they intended to address the impact of the initiative on the Legislature's authority to regulate private contracting. It is inconceivable that the drafters would have failed to make clear in article XXII that the reference to State of California was to the Legislature alone. [7] Based on its assertion that the intent behind Proposition 35 is to expand the Legislature's power to regulate private contracting without article VII limitations, should it choose to do so, Professional Engineers argues [w]here a constitutional amendment removes restrictions and limitations on Legislative power, the constitutional amendment must be construed liberally in favor of the Legislature's action. However, given that the premise of its claim—that State of California in article XXII refers to the Legislature alone—is erroneous, this principle is inapplicable here. [8] In addition to urging us to embrace its interpretation of Proposition 35, Professional Engineers contends that an interpretation of the initiative that allows Caltrans to contract with private entities for architectural and engineering services without implementing legislation violates the separation of powers doctrine because it diverts a legislative function, regulation of private contacting, to an executive agency. We disagree. This interpretation of Proposition 35 does not endorse a shift of policymaking powers from the legislative branch to executive branch agencies. Rather, it recognizes that there has been a policy determination, made by a constitutionally empowered legislative entity, the electorate acting through its initiative power, to permit those agencies to contract for architectural and engineering services free of article VII-derived limitations. Professional Engineers cites Kugler v. Yocum (1968) 69 Cal.2d 371, 71 Cal.Rptr. 687, 445 P.2d 303, for the proposition that regulation of private contacting involves a core legislative function—`the determination and formulation of the legislative policy.'  ( Id. at p. 376, 71 Cal.Rptr. 687, 445 P.2d 303.) We agree with the general principle, of course, but as Yocum itself illustrates, this legislative function is not the exclusive province of the Legislature. Yocum involved the refusal of a city council to hold an election on an proposed initiative ordinance involving the salaries of certain city employees. In affirming the issuance of a peremptory writ of mandate commanding the city to conduct the election, we observed that the salary question raised a `legislative' rather than [an] `administrative' issue and therefore falls within the electorate's initiative power. ( Kugler v. Yocum, supra, 69 Cal.2d at p. 374, 71 Cal.Rptr. 687, 445 P.2d 303.) Similarly here, the setting of policy with respect to private contracting is a legislative matter and, therefore, a proper subject for the electorate to exercise its legislative authority through initiative, which is what the electorate has done. The initiative accomplishes what Professional Engineers argues under its interpretation of Proposition 35 that the Legislature could also have chosen to do in its own time—repeal statutes embodying article VII-derived restrictions on private contracting. We perceive no separation of power violation simply because the electorate, rather than the Legislature, exercised its constitutional authority as a legislative entity to make policy in this area. [9] Moreover, we agree with Caltrans that the constitutional provision in Proposition 35 is self-executing and does not require legislative implementation. ( People v. Vega-Hernandez (1986) 179 Cal. App.3d 1084, 1091, 225 Cal.Rptr. 209 [constitutional provisions are presumed to be self-executing unless a contrary expression is clearly stated.].) This being so, there is no separation of powers violation simply because the electorate has chosen to bypass the Legislature and, through Proposition 35, authorize public agencies to contract for architectural and engineering services pursuant to the constitutional and statutory provisions added by the initiative. ( Chesney v. Byram (1940) 15 Cal.2d 460, 462, 101 P.2d 1106 [constitutional provision is self-executing `if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty to be imposed may be enforced'].) We do not believe that any interpretation of Proposition 35, other than an interpretation that expands the Legislature's power, impermissibly forecloses the Legislature's role in the realm of private contracting by state agencies. This case does not present the global question of the Legislature's power vis-à-vis such private contracting. We address only the issue before us—whether it was the intent of the electorate in enacting Proposition 35 to lift article VII-derived limitations embodied in certain specific statutes and thereby allow public agencies to enter into contracts with private entities for particular kinds of services, architectural and engineering services, free of these particular limitations. Even within this specific area of public contracting, section 5 of the initiative reserved to the Legislature some measure authority to act. [10] Therefore, our interpretation of Proposition 35 does not leave the Legislature out of the public contracting equation even as to the specific subject matter of this initiative. For the same reason, we reject the claim advanced by Professional Engineers that Proposition 35 produced such a fundamental restructuring of state government as to constitute a revision of the Constitution. A revision to the Constitution cannot be accomplished by an amendment but requires a constitutional convention. A revision may be found where an enactment is so extensive in its provisions as to change directly the `substantial entirety' of the Constitution by the deletion or alteration of numerous existing provisions or accomplish[es] such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. ( Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 223, 149 Cal.Rptr. 239, 583 P.2d 1281.) Professional Engineers' argument appears to be based on the latter, or qualitative, effect of Proposition 35: Taking away the Legislature's plenary power to determine contracting out policies and procedures for the State of California, and shifting that power to the Executive branch, constitutes a fundamental restructuring of our traditional tripartite system of government. [11] As we have pointed out, however, this characterization of the effects of Proposition 35 as we have discerned its intent and purpose, is erroneous. Proposition 35 does not usurp the Legislature's plenary authority to regulate private contracting by public agencies in a global sense, but simply permits public agencies to enter into contracts with private entities for architectural and engineering services without article-VII derived restrictions on their ability to do so. Under Professional Engineers' own interpretation of Proposition 35, repealing the statutes at issue could permissibly be done by the Legislature. Here, that repeal has been effected by the other constitutionally empowered legislative authority, the electorate. Therefore, this is not a case in which the Legislature has been stripped of authority to regulate private contacting but, rather, a case in which a permissible legislative decision has been made to remove previous limitations on the ability of public agencies to contract for architectural and engineering services. Moreover, as we have observed, even under our construction of Proposition 35, the Legislature retains some authority as defined in section 5 to amend the initiative by statute. Accordingly, we cannot agree that Proposition 35 creates such far reaching changes to our basic governmental plan as to amount to a revision. ( Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at p. 223, 149 Cal.Rptr. 239, 583 P.2d 1281.) [12] Finally, Professional Engineers contends that, if Proposition 35 is construed to implicitly repeal preexisting statutes regulating private contracting, then Caltrans has ho statutory authority at all to enter into such contracts. The Court of Appeal found that authority in section 14030, subdivision (d), which authorizes Caltrans to plan, design, construct, operate, and maintain transportation systems which the Legislature has made, or may make, the responsibility of the department. Professional Engineers argues that section 14030 does not confer such authority because nothing in its language or history demonstrates that it was intended to authorize private contracting. This is true, but irrelevant. We agree with the Court of Appeal that section 14030 is a broad grant of power sufficient to encompass private contracting for the accomplishment of Caltrans's tasks once that authority became available to Caltrans, which it did when the voters enacted Proposition 35. The voters are presumed to have been aware of existing laws at the time the initiative was enacted. ( People v. Weidert (1985) 39 Cal.3d 836, 844, 218 Cal.Rptr. 57, 705 P.2d 380.) Therefore, the voters can be deemed to have been aware that Caltrans's broad preexisting authority to plan, design, construct, operate and maintain transportation systems was sufficient to add to it the new authority to contract out for architectural and engineering services without requiring en actment of a separate implementing statute. Furthermore, as the Court of Appeal pointed out, article XXII, which confers the choice and authority to enter into contracts with private entities for architectural and engineering services is, like all constitutional provisions, presumed to be self-executing unless a contrary intention is clearly expressed. ( People v. Vega-Hernandez, supra, 179 Cal.App.3d at p. 1092, 225 Cal.Rptr. 209.) Here no such intention has been shown and, as previously noted, we must presume the amendment is self-executing and needs no implementing legislation. For all these reasons, we conclude that Proposition 35 implicitly repealed preexisting statutes regulating private contracting for architectural and engineering services.
+The remaining issue before us is the continued validity of the QBS procedure, set forth in sections 4525 to 4529.5, used by Caltrans to select private architectural and engineering firms. The QBS procedure requires the agency to negotiate a contract with the best qualified firm for such services at compensation which the state agency head determines is fair and reasonable to the State of California or the political subdivision involved. (§ 4528, subd. (a)(1).) Thus, qualifications, not cost, is the primary competitive measure by which contracts are awarded under the QBS procedure. But cost is not irrelevant. If the agency is unable to negotiate a contract with the most qualified firm at a fair and reasonable price, negotiations are terminated and the agency is directed to undertake negotiations with the second most qualified firm, and then, failing that, with the third most qualified firm. (§ 4528, subd. (a)(2).) If this process fails to produce a contract, the agency shall select additional firms in order of their competence and qualifications and continue negotiations ... until an agreement is reached. (§ 4528, subd. (a)(3).) As an additional cost safeguard, administrative regulations require Caltrans to prepare its own cost estimate for a project before commencing price negotiations. That estimate may be based on such factors as a market survey, comparison with fees paid to other departments' or agencies' contractors for similar services, or comparison with the salaries of comparable positions within the Department, within State service, or within other governmental entities. This estimate shall serve as a guide in determining fair and reasonable compensation for the services rendered. (Cal.Code Regs., tit. 21, § 1520.4.) In the trial court and the Court of Appeal, Professional Engineers contended that Proposition 35 implicitly repealed these statutes because the QBS procedure was inconsistent with the initiative's cost-saving mandate. In this court, however, Professional Engineers has retreated from that position. Instead, it argues only that, to meet the initiative's cost-saving mandate, [l]egislation implementing Proposition 35 must add a cost savings mechanism to the consultant selection process. We agree with the Court of Appeal that the QBS procedure is not inconsistent with Proposition 35's requirement that contracting for architectural and engineering services occur[] through a fair, competitive selection process, (Voter Information Guide, Gen. elec. (Nov. 7, 2000) text of Prop. 35, § 2, subd. (e) p. 65; § 4529.12; see appen. A, pp. ii-iv), for the reasons given by that court. First, the QBS process is a competitive process and while cost may be a less salient consideration in the qualifications-based selection procedure than in a competitive bidding process, it is a consideration nevertheless. Second, section 4529.16 requires that the initiative shall not be applied in a manner that will result in the loss of federal funding to any governmental entity. As the Court of Appeal explained: Federal law requires the use of a qualifications-based selection procedure where the construction of federal-aid highways is to be performed by a state transportation department or under its supervision, contracts for architectural and engineering services must be awarded pursuant to the Brooks Act (40 U.S.C. § 1101 et seq.) or an equivalent state qualifications-based selection procedure. (23 U.S.C. § 112(b)(2)(A).) The Brooks Act establishes a qualification-based selection procedure virtually identical to Government Code chapter 10, sections 4525-4529.5. (40 U.S.C. § 1101 et seq.) About 84 percent of Caltrans architectural and engineering contracts are subject to these federal requirements. At a minimum, as to federally funded projects, section 4529.16 compels a construction of section 4529.12 that allows the use of the qualifications based procedure. Third, while the initiative mentions taxpayer savings, the ballot materials made clear that cost savings were not necessarily the measure of the value to the taxpayers of permitting private contracting by public entities. As the Court of Appeal observed: The official summary of the initiative prepared by the Attorney General, and the Legislative Analyst's analysis of the measure both indicate that the fiscal impact of the initiative was unknown. The Legislative Analyst specifically notes that in some cases costs may be higher when an agency contracts out. `It may still be in the state's best interests to do so, however, because of other considerations' such as avoiding the delay of formally hiring and training state employees to meet a short-term surge in workload, and the financial benefits derived from completing construction projects more quickly. Moreover, the official summary clearly states that competitive bidding on the contracts (the prevailing method of public contractor selection that gives prominent weight to cost) is permitted but not required under Proposition 35. In addition, the argument in favor of the initiative specifically informed voters that existing selection statutes would be utilized to procure architectural and engineering services. Prop. 35 would simply restore state and local agencies' choice to utilize private experts— using the same fair selection process on the books today —to select the most qualified architects or engineers to get these projects designed and built on time and on budget. (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) Argument in Favor of Prop. 35, p. 20; see appen. A, p. xi.) The voters are deemed to have understood that reference was to the QBS statutes then in effect. ( People v. Weidert, supra, 39 Cal.3d at p. 844, 218 Cal.Rptr. 57, 705 P.2d 380.) We conclude, therefore, that the QBS procedure is not inconsistent with Proposition 35 and Caltrans's use of that procedure is not improper. To the extent that Professional Engineers' argument is that Proposition 35 requires some legislative alteration of the QBS procedure to give cost savings a more prominent role, that argument is best directed at the Legislature. Proposition 35 gives the Legislature the power to amend the initiative by statute to further its purposes. (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) text of Prop. 35, § 5; see appen. A, p. iv.) Unless and until the Legislature does so, however, we are in no position to pass upon the validity of such amendment.",analysis
+402,2632470,1,2,"
+With respect to review of summary judgment, this court has recently stated: We review the circuit court's grant or denial of summary judgment de novo. Yamagata v. State Farm Mut. Auto. Ins. Co., 107 Hawai`i 227, 229, 112 P.3d 713, 715 (2005) (citing Hawai`i Cmty. Fed. Credit Union v. Keka, 94 Hawai`i 213, 221, 11 P.3d 1, 9 (2000)). The standard for granting a motion for summary judgment is well established: [S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion. Querubin v. Thronas, 107 Hawai`i 48, 56, 109 P.3d 689, 697 (2005) (citations omitted) (brackets in original). Orthopedic Assocs. of Hawai`i, Inc. v. Hawaiian Ins. & Guar. Co., Ltd., 109 Hawai`i 185, 194, 124 P.3d 930, 939 (2005). Given that the DLNR Defendants' motion for judgment on the pleadings, or, in the alternative, for summary judgment contained three exhibits, including the federal district court's findings of fact, conclusions of law and order in Captain Andy's Sailing, Inc. v. Johns , and also given a variety of other matters outside the pleadings submitted to (and not excluded by) the court, the DLNR Defendants' motion is one for summary judgment, such that this standard of review governs. See Hawai`i Rules of Civil Procedure (HRCP) Rule 12(c) (2000). [19]
+This court has previously stated that [t]he existence of jurisdiction is a question of law that we review de novo under the right/wrong standard. Lester v. Rapp, 85 Hawai`i 238, 241, 942 P.2d 502, 505 (1997) (citation omitted).",standard of review
+403,1057780,2,5,"The Defendant next argues that the State did not prove all elements required for convictions of aggravated robbery and robbery. We simply disagree. Because, however, the Defendant is entitled to new trials on grounds that the trial court erred by refusing to grant severances, we will not recount the proof offered at trial in support of each conviction. In its appeal, the State argues that the Court of Criminal Appeals erred by modifying the conviction for the July 11th incident from robbery to theft. We have decided to resolve this issue as a part of our remand. Initially, as we address the issue presented by the State, we keep certain well-established principles in mind. When considering a sufficiency of the evidence question on appeal, the State must be afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn therefrom. State v. Vasques, 221 S.W.3d 514, 521 (Tenn.2007). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Id. When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R.App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn.1983). The same standard applies even if the evidence is entirely circumstantial. State v. Brown, 551 S.W.2d 329, 330 (Tenn.1977). Because a verdict of guilt removes the presumption of innocence and raises a presumption of guilt, the criminal defendant bears the burden on appeal of showing that the evidence was legally insufficient. State v. Evans, 838 S.W.2d 185, 191 (Tenn.1992). The Defendant was convicted of two counts of robbery, an offense defined as the intentional or knowing theft of property from the person of another by violence or putting the person in fear.  Tenn.Code Ann. § 39-13-401 (2003) (emphasis added). The fear referred to in the statute is a fear of `bodily danger or impending peril to the person,' which intimidates and promotes submission to the theft of the property. State v. Bowles, 52 S.W.3d 69, 80 (Tenn.2001) (quoting Britt v. State, 26 Tenn. (7 Hum.) 45 (1846)). The Court of Criminal Appeals found that the Defendant had fulfilled his burden by demonstrating that the State failed to establish the requisite element of fear on the part of the victim in the July 11th offense because Crain refused to so testify. The majority ruled that the victim had to explicitly acknowledge his fear before the State had met its burden of proof. As indicated, the elements of any crime may be established by circumstantial evidence. Stinson v. State, 181 Tenn. 172, 180 S.W.2d 883, 885 (1944). Indeed, Crain contended in this instance that he was not really afraid: I was still just mad that it was happening. When a victim denies fear under circumstances such as these, the determination of this element hinges on a question of witness credibility, which is an issue within the province of the jury. State v. Wilson, 924 S.W.2d 648, 649 (Tenn.1996). The test may be properly described as objective rather than subjective in nature. Crain testified that he had not seen a weapon, but he had gleaned from the circumstances that there was a strong possibility that the Defendant was armed. He was aware that other drivers from his company had recently been robbed at gunpoint. According to Crain, the Defendant threatened to shoot and he reached for his pocket or belt. While Crain did not explicitly acknowledge that he was afraid, he did testify that he was more concerned — the fact that if something happened to me, my kids would be without a father. A reasonable inference is that the actions of the Defendant caused Crain to consider the possibility of his own death. He acquiesced only after the Defendant threatened to shoot him. When the robbery was over, Crain directed his co-worker to call the police. In our view, these are circumstances that the jury could have considered in determining that the victim was placed in fear during the course of the robbery. As aptly pointed out in the dissent to the Court of Criminal Appeals opinion, the victim's actions spoke louder than his words. State v. Dotson, No. W2005-01594-CCA-R3-CD, 2006 WL 3438161, at  (Tenn.Crim.App. Nov.29, 2006) (Williams, J., dissenting); see also People v. Renteria, 61 Cal.2d 497, 39 Cal.Rptr. 213, 393 P.2d 413, 414 (1964) (finding that the circumstances surrounding a robbery supported the trial court's finding that the victim would not have given his employer's money to defendant unless he was in fear, in spite of his `bravado' answer in court). Fear could have been inferred from the circumstances. [14] In our assessment, the jury's task is to determine from all of the evidence whether the victim was placed in fear by the conduct of a defendant or should have been under the circumstances. A rational jury, weighing all the evidence presented at trial, could have found beyond a reasonable doubt that Crain was actually placed in fear. See Tenn. R.App. P. 13(e); Williams, 657 S.W.2d at 410. Thus, the Court of Criminal Appeals erred by reducing Dotson's robbery conviction to theft based upon the content of Crain's testimony.",sufficiency of the evidence
+404,1616871,2,2,"White argues there is insufficient evidence to support his conviction for first-degree kidnapping. Specifically, he contends mental anguish unaccompanied by physical injury or sexual abuse is not torture within the meaning of Iowa Code section 710.2. Our review is for correction of errors of law. State v. Kotlers, 589 N.W.2d 736, 738 (Iowa 1999). The Iowa Code provides first degree kidnapping is when the person kidnapped, as a consequence of the kidnapping, suffers serious injury, or is intentionally subjected to torture or sexual abuse. Iowa Code § 710.2. [2] In the present case, there is no evidence of serious injury or sexual abuse. Therefore, the State had the burden to prove White intentionally subjected Nelson to torture as is contemplated by section 710.2. We have repeatedly addressed cases involving both mental suffering accompanied by either physical injury or sexual abuse. See, e.g., State v. Siemer, 454 N.W.2d 857 (Iowa 1990); State v. Simmons, 454 N.W.2d 866 (Iowa 1990); State v. Schertz, 330 N.W.2d 1 (Iowa 1983); State v. Schertz, 328 N.W.2d 320 (Iowa 1982); State v. Cross, 308 N.W.2d 25 (Iowa 1981); State v. Kirchner, 600 N.W.2d 330 (Iowa Ct.App.1999). However, whether mental torture alone is enough to constitute torture as it is used in section 710.2 is an issue of first impression in Iowa. We had occasion in State v. Cross to discuss the definition of torture. We relied upon [c]ommentators on the criminal code [who] suggest `torture' ordinarily means `the intentional infliction of pain (either) mental or physical.  308 N.W.2d at 27 (citing Dunahoo, The New Iowa Criminal Code: Part II, 29 Drake L.Rev. 491, 554 n. 570 (1980); J. Yeager and R. Carlson, 4 Iowa Practice: Criminal Law and Procedure § 236 (1979)). Torture is defined by the dictionary as anguish of body or mind. Webster's Collegiate Dictionary 1242 (10th ed.2002). A survey of case law from other jurisdictions shows torture is generally interpreted to encompass physical and/or mental anguish. See, e.g., Mehinovic v. Vuckovic, 198 F.Supp.2d 1322, 1346 (N.D.Ga.2002) (the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him ... information or a confession....); Hale v. Gibson, 227 F.3d 1298, 1335 (10th Cir.2000) (for purposes of heinous, atrocious, or cruel aggravator to murder, torture includes the infliction of either great physical anguish or extreme mental cruelty); People v. Hines, 194 Colo. 284, 572 P.2d 467, 470 (1977) (class one felony kidnapping is whether the victim is inflicted with bodily injury, which includes impairment of mental condition); In re A.G., 325 Ill.App.3d 429, 258 Ill.Dec. 835, 757 N.E.2d 524, 529 (2001) (in context of CINA action, torture of children includes conduct that involves solely the infliction of emotional harm, mental pain and suffering, mental anguish and agony); State v. Wisowaty, 137 N.H. 298, 627 A.2d 572, 578 (1993) (Class A felony kidnapping is where the victim suffers a serious injury which includes psychological injuries and mental anguish); State v. Ryan, 248 Neb. 405, 534 N.W.2d 766, 793 (1995) (element of torture which makes murder especially heinous, atrocious or cruel and therefore a capital offense, is found where the victim is subjected to serious physical, sexual or psychological abuse before death). It would be contrary to legislative intent and common sense to find torture must include an element of physical injury. It is reasonable to assume the legislature was aware of the duality of the term torture and would have explicitly limited it to physical torture if that was what the legislature had intended the term to mean. In re A.G., 258 Ill.Dec. 835, 757 N.E.2d at 524, 528-29. Furthermore, other Iowa Code sections lend support to the conclusion that torture encompasses mental anguish unaccompanied by physical injury. Iowa Code section 702.18 defines serious injury to include [d]isabling mental illness, or extensive bodily injury. Iowa Code § 702.18(1)( a ), ( b ). We conclude torture as it is used in Iowa Code section 710.2 includes mental anguish unaccompanied by physical or sexual assault. In other words, torture is either physical and/or mental anguish. There is substantial evidence showing White intentionally tortured Nelson. When she arrived home, Nelson took a shower. As she dried her hair, Nelson saw the bathroom door move and slowly open. She saw the barrel of a shotgun in the mirror. Nelson dropped the hairdryer and turned around. There stood her estranged husband standing at the threshold with a shotgun. White forced Nelson at gunpoint upstairs to her bedroom. She was so consumed with fear that White was going to shoot her, Nelson walked backwards up the stairs. All the while, White pointed the shotgun at Nelson's chest. At the top of the stairs, Nelson saw the video recorder. She saw the red light was on and knew she was being taped. She saw shotgun shells lined up in a row on the stand near the television. Nelson believed she was going to die. White ordered Nelson to sit on the bed or he would shoot her knee. As he said this, White pointed the gun at Nelson's knee. White then placed a chair in front of the video recorder and ordered Nelson to sit there. Nelson moved to the chair. At all times, White kept the shotgun pointed at her. He interrogated her. He accused her of sexual infidelity. He demanded she tell the truth about having intimate relationships with other men. Nelson answered his questions. She was hysterical; she was trembling uncontrollably, crying and sobbing, wailing and screaming, and begging for her life. Nelson said, I don't want you to kill me, and White responded, Then answer my questions. Nelson pleaded to him not to kill her because their children needed her. White responded, They'll be all right. When Nelson asked White why he was doing this to her he said, I'll be in jail as soon as I leave if I don't shut you up.... You can't keep your mouth shut. At some point, White turned off the video recorder and forced Nelson downstairs. This time, Nelson went down the stairs sideways, terrified White would shoot her in the back. White forced Nelson, at gunpoint, into the living room. White put a videotape in the VCR and turned on the television. He forced Nelson to watch the two and a half hours of videotape White recorded as he waited for Nelson to come home. The tape was replete with explicit statements of White's intent to kill Nelson, his accusations against her, and vulgar name-calling. White stayed with Nelson as she viewed the entire two and a half hour video. As Nelson watched the tapes and heard the homicidal ideations of her husband, White repeatedly cocked and uncocked the shotgun. She heard White say on the tape he was going to torture her. She heard White say he was going to shoot her when she returned home. Nelson believed White was going to hurt her. At one point, White allowed Nelson to go into the kitchen for a cigarette and pop. He pointed the gun at Nelson and followed her into the kitchen with it. Some time after Nelson returned to the living room, White acted like he was going to let Nelson go. He unloaded the shotgun. When the tape was finished, White said to Nelson You can go. You can go call the police if you want to. Nelson started walking for the door and reached for her cell phone. White jumped up from the recliner and came after Nelson. He grabbed the cell phone out of her hand and blocked the door so Nelson could not leave. He reloaded the shotgun and ordered Nelson back into the living room. Nelson told White everything was her fault and that she deserved what White had done to her. She told him things to boost his ego. White left the house without his shotgun and shotgun shells. These facts support the jury's conclusion that Nelson was torture[d] within the meaning of Iowa Code section 710.2. This case is more than just a threat with a gun. The record shows repeated acts of terror against Nelson. A psychiatrist who examined the videotapes testified White looked and behaved like a caged animal. The psychiatrist remarked about White's behavior when he was waiting for Nelson to return home. White repeatedly checked the window for headlights. Every time a car approached the house and White saw the headlights, he became visibly nervous. He watched carefully to determine if it was Nelson coming home. The psychiatrist testified White was upset and was ready for what we call fight or flight. [3] When Nelson came home, White laid in wait for her as she showered. He crept around the upstairs, tiptoeing so as not to be detected. Holding his shotgun, he hid behind a wall. White intentionally held Nelson at gunpoint for three hours. He made her watch the tape containing his repeated threats to hurt her—to murder her. White forced Nelson to listen to every minute of his two and a half hour videotaped diatribe. Nelson heard the following statements: I don't want to kill her. I don't know what else to do. Don't know if I'm going to shoot her, shoot her and then me, or shoot her and leave. I want to scare the f   out of her for once. The more I think about it, the more I want to kill them. She's got the devil in her. I'm not going to shoot anyone but her probably. Sometimes I want to shoot her in the f  ing p  y, blow it away from her. She doesn't need it. I'm not even sure this gun will shoot. I hope it does.... Feel pretty stupid trying to shoot somebody and it doesn't even work. I've always wanted to shoot her and now I really feel like it. White said that he might leave after he killed Nelson to think about killing himself. White said, I might have some time after someone finds her. He also apologized to his parents and Nelson's parents. He said to them, I'm sorry I have to do this. White also made threatening statements directly to Nelson. As Nelson listened to the threats, White repeatedly cocked and uncocked his shotgun in front of her. These were not impulsive or out of control acts. Rather, everything White did and said bespeaks of purposeful behavior. White used a shotgun to terrorize Nelson. White repeatedly called Nelson demeaning names such as slut and whore. White portrayed himself on the tape as an innocent victim of his wife's deception. He reiterated that he didn't want to kill Nelson, but he didn't have a choice. He said he can't cure this problem, referring to Nelson's deception. White said he couldn't live with her screwing other guys. He said, [Heather] ruined my life. My life has no meaning. White was extremely jealous. He constantly talked about the other men in Nelson's life. He questioned why he wasn't good enough for her. White said Nelson had rejected him. White had used physical violence in the past. He used this fact as additional power to control Nelson in a nonphysical manner. Because of White's past use of physical force, there is an implied threat in his verbally abusive statements made to Nelson in person and on videotape. In sum, in this case, we are confronted with an overwhelming case of domestic violence resulting in kidnapping. Because there is substantial evidence of White terrorizing Nelson, we affirm.",sufficiency of the evidence
+405,3134470,1,1,"Section 2 of the Illinois Hunter Interference Prohibition Act (Act) states: “Any person who performs any of the following shall be guilty of a Class B misdemeanor: (a) Interferes with the lawful taking of a wild animal by another with intent to prevent the taking. (b) Disturbs or engages in an activity that will tend to disturb wild animals, with intent to prevent their lawful taking. (c) [D]isturbs another person who is engaged in the lawful taking of a wild animal or who is engaged in the process of taking, with intent to dissuade or otherwise prevent the taking. (d) [E]nters or remains upon public lands, or upon private lands without permission of the owner or his agent or a lessee, with intent to violate this Section.” 720 ILCS 125/2 (West 1996). The Act defines “wild animal” as “any wild creature the taking of which is authorized by the fish and game laws of the State.” 720 ILCS 125/1(a) (West 1996). Under the Act, “taking” means “the capture or killing of a wild animal and includes travel, camping, and other acts preparatory to taking which occur on lands or waters upon which the affected person has the right or privilege to take such wild animal.” 720 ILCS 125/1(b) (West 1996). No other terms are defined by the Act. The State filed an information on November 19, 1996, charging defendant, Robert Sanders, with the offense of “Interference with lawful taking of wild animal.” 720 ILCS 125/2 (West 1996). The State alleged that on February 16, 1996, defendant “disturbed Elizabeth B. Surge” with the intent to dissuade her, by yelling at her and taking her photograph as she attempted to shoot a deer. In documents filed with the circuit court, defendant initially contended that the confrontation with Surge occurred “on a public street in a residential neighborhood relating to the capture of deer.” The State's response to defendant's motion to dismiss stated that defendant approached Surge at a “deer relocation sight [ sic ] in Highland Park.” On appeal, defendant apparently agrees with the State's characterization of the incident, since the defendant's appellee's brief concedes that “[d]efendant took a picture of, and spoke to a person working at a deer relocation center.” Defendant moved to dismiss the information. Defendant claimed that subsection (c) of section 2 is overbroad in violation of the first amendment to the United States Constitution and unconstitutionally vague in violation of the “Due Process Clause.” On February 20, 1997, the circuit court of Lake County entered a written finding granting defendant's motion to dismiss. The court ruled that prosecution of subsection (c) of section 2 “require[s] allegations and proof of three elements: 1. disturbing another person ; 2. the other person must be actively engaged or in the process of taking a wild animal; and 3. an intent to dissuade or otherwise prevent the taking.” The circuit court examined other Illinois statutes, such as those proscribing disorderly conduct (720 ILCS 5/26–1 (West 1996)), mob action (720 ILCS 5/25–1 (West 1996)), intimidation (720 ILCS 5/12–6 (West 1996)), and telephone harassment (720 ILCS 135/1–1 (West 1996)), “from the p[er]spective of similar language, constitutional challenges, and rulings based on those challenges.” Lastly, the court found persuasive case law cited by defendant, as it pertained to “vagueness, overbrea[d]th, free speech and due process.” Based on the foregoing analysis, the circuit court dismissed the information, and ruled that section 2 of the Act “is vague, overbroad, and violative of due process with respect to the protection of freedom of speech,” “to the extent that the term [`]dissuades['] is used.” Pursuant to Illinois Supreme Court Rule 603, the State appealed the February 20, 1997, order to this court. 134 Ill. 2d R. 603.",facts
+406,1476858,1,1,"[¶ 2] Wagner was the president of local R01-077, National Association of Government Employees, which does contract work at the Brunswick Naval Air Station. Ballard, then a Lieutenant in the United States Navy, was in charge of the Public Works Department (PWD) at the Air Station. The fire department regularly conducts inspections on the base and issues deficiency notices as needed. After conducting inspections on January 13, 2000, the Chief Fire Inspector delivered 125 deficiency violation notices to the PWD. John Bond, a PWD employee, received the January 13 notices in the PWD office. Routinely, the PWD has thirty days to inform the fire department whether it has corrected or abated such alleged violations. Bond instructed an information assistant to enter the notices in the PWD's system, the process by which the PWD employees receive the notices. Despite numerous promptings, the information assistant either was unable or refused to enter the notices. On February 17, Bond informed Ballard that the PWD had missed the deadline for all 125 deficiency notices. As a result, Ballard approved a plan to get the deficiency notices corrected, including authorizing as much overtime as needed. [¶ 3] After Wagner learned about the deficiency notice problem from the information assistant, he reported the problem directly to the executive officer and the commanding officer without following the chain of command. In response, the commanding officer informed PWD that he wanted the situation involving the deficiency notices resolved immediately, and in a few days the PWD had addressed the majority of the problems. On March 6, 2000, the safety supervisor wrote to Wagner informing him that all the deficiencies had been abated; the supervisor based this letter on information Ballard provided to him. [¶ 4] One deficiency, however, involving an oil leak from a furnace at a child care center, had probably not been corrected at that time. [1] A PWD employee had been to the location described in the deficiency and found no indication of a leak. The employee reported this to Bond and Ballard, and signed a completed deficiency report indicating that he found no leak. Wagner, however, learned from a different source that the oil leak remained unrepaired, and he filed a complaint with the Occupational Safety and Health Administration (OSHA) about the oil leak and what he described as other safety problems. [¶ 5] On March 23, 2000, the OSHA inspector conducted an investigation on the base. Wagner accompanied the OSHA investigator during his March 23 inspection. In a report, the OSHA investigator labeled the oil leak serious, and allowed PWD thirty days to fix the problem. [2] The OSHA investigator also found another problem that had not been the subject of a deficiency notice. The remaining problems cited by OSHA were not PWD's responsibility. PWD immediately fixed the oil leak, as well as the other problem. During the course of the inspection, the OSHA investigator showed Wagner the deficiency notice upon which the PWD employee had noted that there was no leak in space. Thus, Wagner knew that Ballard had been told that the oil leak deficiency was not a problem. [3] [¶ 6] Meanwhile, on February 25, 2000, Ballard contracted with non-union workers to perform emergency repairs on weeknights and weekends. After signing this contract, Ballard left for a brief trip to Norfolk, Virginia. Soon after, Wagner learned that the emergency services contract was granted to an outside contractor. On February 29, 2000, Wagner, on behalf of his union, negotiated a tentative contract with members of the command for union personnel to perform all evening and weekend emergency work. This conflicted with the contract that Ballard had previously negotiated. When Ballard returned, he called the commanding officer's attention to the conflicting contracts. The commanding officer sided with Ballard and decided to uphold the earlier February 25 contract with the non-union workers, and invalidated the later February 29 contract negotiated with the union. At trial, Wagner testified that he did not know that the contract Ballard had signed was valid until the workers came to the base, but the court found this testimony not to be credible. [¶ 7] Wagner, who was acting as president of Local R01-77, and on behalf of the union, published a website on the Internet that remained available from March 27, 2000 to June 2, 2000. The website was subtitled: When telling the truth hurts[:] Dedicated to Exposing Lies at Naval Air Station, Brunswick. The first link from the homepage, entitled Lie # 1[:] LT Ballard's Little Fib, brought the viewer to a subsequent page, discussing Ballard's negotiation of the contract with non-union workers. The page included the following text: After contracting out after hours maintenance response for NASB, Lt Ballard, Public Works Officer, told a group of PW[D] workers on March 22, 2000: `I never saw a proposal to keep after hours response work in-house.' This paragraph, as published, contained the word Lie in handwriting in the margin. Additionally, at the bottom of the page, it stated, the work was then contracted out by LT Ballard's ROICC office DESPITE THE 29 FEB 00 AGREEMENT WITH THE COMMAND AND IN SPITE OF THE CO'S AND XO'S APPARENT DESIRE TO KEEP THE WORK IN-HOUSE. [¶ 8] The second link from the homepage was entitled Lie # 2[:] It's Safe Now. This link brought the viewer to a subsequent page discussing the PWD's response to the oil leak in the child care center. The page included the following language: On 6 March 2000, the Command representative for Safety—based on a report from Public Works—declared that: `. . . . At this time Public Works has informed us that all mentioned deficiencies have been abated and that they were completing NAVOSH Deficiency notices to provide us with completed paperwork.' Similar to the first link, in the left-hand margin the handwritten word Lie was published. Wagner did not include among the supporting documentation for this page the deficiency notice signed by the PWD employee indicating that there was no leak. [¶ 9] Wagner refused to publish a retraction. Ballard filed a complaint against Wagner and Local R01-077 in Superior Court, seeking, in part, damages for defamation. Following a jury-waived trial, the court decided in favor of Ballard against Wagner and Local R01-077. The court found that the information published on the website regarding the oil leak and the contracts constituted two acts of defamation. The court awarded Ballard $75,000 in damages against Wagner and the Union, holding the Union vicariously liable for Wagner's actions. The court also held a subsequent hearing to determine punitive damages, the court found Wagner alone liable for $20,000 in punitive damages. Wagner and the Local R01-077 filed this appeal.",facts
+407,1999189,1,2,"In reviewing defendant's contention that there was not sufficient credible evidence to support the conviction it must be remembered that on appeal all that must be shown is that there is any credible evidence which could convince the trier of fact of defendant's guilt beyond a reasonable doubt. The crime with which defendant was charged, uttering a forged check, has two elements: first, that the person utter as genuine or possess with intent to utter as false or genuine any forged writing, and second, that the person know that the writing has been falsely made or altered, sec. 943.38 (2), Stats. In the present case defendant endorsed a forged check made payable to her. There is no question but that the check passed by defendant was stolen and forged. The issue raised is whether the evidence demonstrated that she knew the check was forged. There was a conflict in testimony. A police detective testified that defendant, after waiving her constitutional rights, had admitted that she knew the check was forged. Defendant denied this knowledge. Thus the question is simply one of credibility. The trial court believed the police officer and disbelieved the defendant. We have no doubt that the testimony of the police officer, if believed, was sufficient to prove the second element of crime beyond a reasonable doubt. There is clearly sufficient evidence to support the conviction. By the Court. —Judgment affirmed.",sufficiency of the evidence
+408,888841,1,2,"¶ 6 Maniaci moved to Clinton, Montana, in late 1994 or early 1995. Maniaci and Kulstad met in Montana in late 1995. Maniaci lived in a trailer on her sister's property and worked part-time as a chiropractor out of her sister's home. Kulstad lived in Seattle, Washington. She worked in Seattle on business ventures and supported herself with her accumulated assets. The parties' relationship progressed to the point that they began staying with each other at their respective homes. Kulstad eventually moved to Montana in 1996 to live with Maniaci. ¶ 7 Kulstad and Maniaci exchanged rings on March 18, 1996. Kulstad and Maniaci wore the rings until the fall of 2006. Maniaci also gave Kulstad three anniversary cards. Maniaci represented Kulstad as her partner on numerous occasions. The parties attended couples counseling in 2002, 2003, and 2006. The parties' mutual friends regarded them as domestic and intimate partners, and later as co-parents. ¶ 8 Kulstad supported the parties primarily with her accumulated assets from 1996 to 2001. Kulstad and Maniaci had a joint automobile insurance policy naming each of them as insureds. Maniaci added Kulstad to the homeowner's insurance policy. Maniaci executed a living will that authorized Kulstad to make her end-of-life decisions.",facts
+409,2602167,1,2,"¶ 10 The parties present six issues for our review, specifically, whether the court of appeals erred in (1) holding that Brookside did not preserve its bona fide purchaser argument for appeal; (2) upholding the trial court's reversal of its summary judgment ruling; (3) affirming the trial court's grant of Peebles' motion for directed verdict; (4) affirming the trial court's denial of attorney fees for Brookside and in allowing attorney fees for Peebles; (5) disregarding Brookside's arguments that Harold Peebles should have been reinstated as a defendant; and (6) upholding the jury's finding that Brookside's rejection of a prospective buyer of Peebles' mobile home was reasonable.",issues
+410,883667,1,3,1. May damages for emotional distress be recovered for negligent conduct? 2. May emotional distress damages be recovered in a breach of contract action? 3. May Appellants recover contract damages?,issues
+411,4553858,1,4,"We have two sets of appeals: those taken following the June 18, 2018, orders and those taken after the district court awarded attorney fees to the relators. The first appeals were 7 § 84-712.01(3). 8 Id. 9 Aksamit Resource Mgmt., supra note 5. 10 Id. 11 Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 N.W.2d 100 (1998). 12 See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). - 789 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 premature. 13 We dismiss those appeals for lack of jurisdiction. We have jurisdiction over the second set of appeals.",jurisdiction
+412,6329083,1,1,"This case is before the court on the voluntary surrender of license and the motion to terminate proceedings filed by the respondent, Mark D. Kratina, Sr., on January 25, 2022. The court accepts the respondent’s voluntary surrender of his license and enters a judgment of disbarment. The respond­ ent’s motion to terminate proceedings is moot and, accordingly, overruled. STATEMENT OF FACTS The respondent was admitted to the practice of law in the State of Nebraska on July 2, 1976, and at all times relevant to this proceeding, he was engaged in the practice of law in Omaha, Nebraska. On January 25, 2022, the respondent filed a voluntary surrender of his license to practice law. He stated that on August 5, 2021, the chairperson of the Committee on Inquiry of the Second Judicial District filed an application - 281 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. KRATINA Cite as 311 Neb. 280 for temporary suspension of the respondent’s license, and on September 30, 2021, the respondent was suspended from the practice of law. He has not been reinstated. The respondent states that for purposes of this voluntary surrender, he knowingly does not challenge or contest the truth of allegations and waives all proceedings against him. He thus acknowledges that without the knowledge or consent of his clients, the respondent withdrew his clients’ funds and misappropriated them for his own use. Subsequently, the respondent made false statements to another attorney and to the Counsel for Discipline to the effect that the funds had been maintained in the trust account. The Counsel for Discipline attempted to audit the respond­ ent’s trust accounts, but the respondent failed to produce any of the requested documents. The Counsel for Discipline served a subpoena duces tecum on the respondent’s bank to obtain the respondent’s trust account bank statements, which revealed that he misappropriated his clients’ funds in June and August 2017. The Counsel for Discipline has continued to examine the respondent’s trust accounts, which has raised further concerns with respect to costs and advanced expenses paid to the respondent from the same clients’ settlements. The respondent states that he has provided to the Counsel for Discipline all reasonably available documentation with regard to the costs and advanced expenses, including written testimony from his office staff showing the records relied on to invoice for costs and expenses. He has provided the Counsel for Discipline with settlement sheets for all of his personal injury clients from June 2017 to June 2021 whose settlements would have been run through his trust account. He states that no client has failed to receive funds that he or she was due. The respondent has been previously disciplined by this court. On January 5, 2001, the respondent was publicly reprimanded when his negligence led to a discrepancy in his - 282 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. KRATINA Cite as 311 Neb. 280 trust account. And on April 4, 2008, the respondent was suspended for 60 days after advancing sums to a client for transportation and rent. The respondent stated that he voluntarily surrenders his privilege to practice law in the State of Nebraska; waives his right to notice, appearance, or hearing prior to the entry of an order of disbarment; and consents to the entry of an immediate order of disbarment, with special conditions.",introduction
+413,1734218,1,6,"The personal representatives first assert that the district court erred in holding that the probate court lacked jurisdiction to confirm the sales, thus making confirmation of the putative contract a noncondition. In common-law and equity actions relating to decedents' estates, the county courts have concurrent original jurisdiction with the district courts. Iodence v. Potmesil, 239 Neb. 387, 476 N.W.2d 554 (1991); In re Estate of Steppuhn, 221 Neb. 329, 377 N.W.2d 83 (1985). In addition, Neb.Rev. Stat. § 30-2405 (Reissue 1989) provides that [t]he [county] court has jurisdiction of all proceedings to determine how decedents' estates subject to the laws of this state are to be administered, expended and distributed. Clearly, the confirmation of a sale of estate property presents a question of how an estate is to be distributed. Furthermore, Neb.Rev.Stat. § 30-2465 (Reissue 1989) provides that a personal representative may invoke the jurisdiction of the [county] court, in proceedings authorized by this [probate] code, to resolve questions concerning the estate or its administration. The comment to that section states in part: This section is intended to confer authority on the personal representative to initiate a proceeding at any time when it is necessary to resolve a question relating to administration. Whether bids at an auction for estate property are sufficient or adequate relate to the administration of the estate. Thus, a personal representative is given the right to invoke the jurisdiction of the county court, and the county court probating an estate does, in fact, possess jurisdiction to hear such questions. Therefore, the probate court here had jurisdiction to confirm or reject the bids made at the auction, and confirmation was a condition to the formation of a contract, not a noncondition, as the district court ruled.",jurisdiction
+414,1131096,1,4,"The motion for judgment notwithstanding the verdict was granted here on both liability and quantum. As to liability, reasonable persons could certainly differ on the question of Ms. Scott's contributory negligence. A jury of twelve persons found her to be sixty percent at fault and could reasonably have concluded that she should have seen the warning sign, may have known the floor was wet, and could have avoided the wet area. The trial court erred in granting a judgment notwithstanding the verdict and the judgment of the jury as to liability is reinstated. The trial court also erred in granting a judgment notwithstanding the verdict on the quantum issue. The trier of fact, here the jury, is given much discretion in fixing the measure of damages. LSA-C.C. art. 1999 [formerly LSA-C.C. art. 1934(3)]. [11] The assessment of Maudie Scott's damages at $330,000 was not such an abuse of discretion as would necessitate a judgment notwithstanding the verdict. The trial judge gave her $450,000, including past lost wages of $20,000 and future lost earning capacity of $100,000, despite the fact that, because of prior health problems, Ms. Scott had not worked for at least a year prior to the accident. Likewise, he awarded $85,000 for future medical, the testimony concerning which was far from precise and explicit. The jury apparently appraised the evidence concerning past and future loss of wages, the future medical, and possibly even general damages differently from the judge. The evidence is capable of different interpretations; it cannot be said that reasonable persons could not differ. The jury's verdict must stand. The trial judge clearly erred in granting a judgment notwithstanding the verdict. The jury award of $380,000 in damages, $330,000 to Ms. Scott and $50,000 to her husband subject to the reduction for Ms. Scott's liability, is reinstated. For the foregoing reasons, the judgment of the court of appeal is reversed. The judgment of the trial court granting a judgment notwithstanding the verdict is reversed, [12] and the jury determinations as to liability and quantum are reinstated. REVERSED: JURY VERDICT REINSTATED. [13]",conclusion
+415,1230678,1,5,"The record reflects that the parties entered into a valid and binding agreement to arbitrate their dispute which was governed by the provisions of Nebraska's Uniform Arbitration Act. The city did not file an application to vacate, modify, or correct the award pursuant to the act, and therefore the district court correctly concluded that the award should be confirmed. The district court's entry of judgment on the award in favor of the Hartmans and against the City of Grand Island in the amount of $100,000 is affirmed. AFFIRMED.",conclusion
+416,4511252,1,5,"We conclude that the district court erred in sustaining Jedlicka’s motion to quash. The State’s exception is sustained, and because jeopardy did not attach, the cause is remanded to the district court for further proceedings under § 29-2316. Exception sustained, and cause remanded for further proceedings. 34 State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).",conclusion
+417,1807603,1,2,"Did the trial court err when it refused, at the preliminary hearing, to receive into evidence an affidavit from the State Health Laboratory concerning the analysis of substances discovered during a search of Conner's residence? We hold that it did and, accordingly, reverse.",issues
+418,2582249,1,3,"[¶ 8] Evidentiary rulings are left to the sound discretion of the trial court and will not be overturned where the record reveals a legitimate basis for the ruling. Armstrong v. Hrabal, 2004 WY 39, ¶ 10, 87 P.3d 1226, 1230 (Wyo.2004). Resolution of this case also involves the application of Wyo. Stat. Ann. § 17-21-701(b) (LexisNexis 2003). Our principles of statutory interpretation are well established: In interpreting statutes, our primary consideration is to determine the legislature's intent. . . . [I]n ascertaining the meaning of a given law, all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Statutory construction is a question of law, so our standard of review is de novo. We endeavor to interpret statutes in accordance with the legislature's intent. We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia. When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. BP America Production Co. v. Dept. of Rev., 2005 WY 60, ¶ 15, 112 P.3d 596, 604 (Wyo. 2005). The statute at issue is part of the Wyoming Revised Uniform Partnership Act (RUPA), Wyo. Stat. Ann. §§ 17-21-101 et seq. (LexisNexis 2003). [2] RUPA directs that we construe and apply its provisions to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it. Wyo. Stat. Ann. § 17-21-1001 (LexisNexis 2003).",standard of review
+419,852078,1,4,"We affirm the judgment of the trial court. SHEPARD, C.J., and DICKSON, SULLIVAN and DAVID, JJ., concur.",conclusion
+420,2051477,1,7,"Defendant argues that the trial court erred in refusing to give his tendered instruction number 7 which advised that guilt beyond a reasonable doubt may not be established by showing the mere opportunity to commit the crime. While the instruction is a correct statement of the law, the evidence did show more. Further, it is not reversible error for the trial court to refuse to give an instruction when the substance thereof is adequately covered by other instructions given by the court. Tawney v. State, (1982) Ind., 439 N.E.2d 582, 587. The trial court instructed the jury that the State must prove the Defendant guilty of each essential element of the crime charged, beyond a reasonable doubt, and fully explained the meaning of the term reasonable doubt to the jury. Thus, it was not error for the court to refuse to give Defendant's tendered instruction number 7. See Baker v. State, (1973) 260 Ind. 618, 627, 298 N.E.2d 445, 451 ( rehearing denied ).",issues
+421,6349107,1,1,"On November 23, 2020, formal charges containing two counts were filed by the office of the Counsel for Discipline of the Nebraska Supreme Court, the relator, against Dazmi H. Castrejon, the respondent. The respondent filed an answer to the formal charges on January 6, 2021. This court appointed a referee who conducted a hearing. At the hearing, the parties offered a joint statement of facts and agreed on the record that the violations alleged in the formal charges were not disputed and that the only contested issue was appropriate discipline. The referee filed a report on January 31, 2022. With respect to the allegations contained in the formal charges, the referee concluded that the respondent’s conduct breached the following provisions of the Nebraska Rules of Professional Conduct: Neb. Ct. R. of Prof. Cond. §§ 3-501.5(a) (fees and accounting), 3-501.15 (safekeeping funds), 3-508.1(b) (unresponsiveness in disciplinary matters), and 3-508.4(a) to (c) (rev. 2016) (misconduct). The referee further found that the respondent - 561 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. CASTREJON Cite as 311 Neb. 560 had violated her oath of office as an attorney licensed to practice law in the State of Nebraska. See Neb. Rev. Stat. § 7-104 (Reissue 2012). With respect to the discipline to be imposed, the referee recommended suspension of the respond­ ent’s license to practice law for a period of 2 years, followed by a period of probation or supervision. The relator moved for judgment on the pleadings under Neb. Ct. R. § 3-310(L) (rev. 2019) of the disciplinary rules. We grant the motion for judgment on the pleadings and impose discipline as indicated below.",introduction
+422,3176863,1,3,"¶28. We find that MTC waived any challenge to the admission of Parker’s after-taking valuation when it failed to object contemporaneously. We also find that any error in the admission of Parker’s testimony was harmless. And we do not consider United Assets’ cross-appeal, at its request. We therefore affirm the judgment of the Forrest County Special Court of Eminent Domain. ¶29. AFFIRMED. WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN AND MAXWELL, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. 12",conclusion
+423,2197835,2,3,"Appellant also argues that the trial court erred in denying his motion for judgment of acquittal. He maintains that the complaining witness's testimony was inherently incredible because (1) she was under the influence of PCP, alcohol, and marijuana at the time she claimed appellant assaulted her, and (2) she recanted her accusation that appellant had sexually assaulted her. We review a trial court's denial of a motion for judgment of acquittal de novo, and like the trial court, determine whether the evidence, viewed in the light most favorable to the government, was such that a reasonable juror could find guilt beyond a reasonable doubt. Johnson v. United States, 756 A.2d 458, 461 (D.C.2000) (citing Curry v. United States, 520 A.2d 255, 263 (D.C.1987)). In recognizing the jury's role in weighing the evidence, we will defer to its credibility determinations, as well as its ability to draw justifiable inferences of fact. Id. (citing Patton v. United States, 633 A.2d 800, 820 (D.C.1993)). Reviewing the record, we are satisfied that there was ample evidence from which a reasonable juror could have convicted appellant of sexual assault and assault with a dangerous weapon. C.M. testified at trial that appellant ripped her clothes off and forcibly inserted his fingers inside her vagina, and then kicked her with his boots. Her story was corroborated by physical evidence, her ripped pants and appellant's boots, which were admitted into evidence. Her son Michael corroborated that appellant beat and kicked her. The medical testimony also confirmed that she had been beaten and sexually assaulted in the manner she described. C.M.'s version of events was not inherently incredible and the jury was not presented with a competing plausible explanation for her injuries. The questions appellant raises about C.M.'s credibility—her drug consumption and recantations—were fully aired before the jury, which nonetheless, decided to believe C.M.'s testimony that appellant assaulted her. This court may not second-guess the jury's credibility determination. See In re S.G., 581 A.2d 771, 774-75 (D.C. 1990). Viewing the evidence in the light most favorable to the government, we conclude it was sufficient to establish that appellant assaulted her sexually and with a dangerous weapon. Therefore, the trial judge did not err in denying appellant's motion for judgment of acquittal.",sufficiency of the evidence
+424,1287992,1,1,"Sanders was arrested on April 17, 1994, shortly following an incident where, according to testimony presented at trial, he robbed Teresa Jessup at gunpoint on the parking lot of a Shoney's restaurant in South Charleston, West Virginia. Ms. Jessup left the restaurant at approximately 2:30 p.m., after finishing her morning waitressing shift, and walked to a nearby car. After she was seated in the vehicle, an African-American male in dark clothing with a hood over his face opened the car door and, while holding a gun, demanded money. A shoving contest ensued, with Ms. Jessup refusing to remain seated and the masked robber attempting to force her to stay in the car. When she finally reached a standing position, the robber put the gun to Ms. Jessup's head and again demanded all of her money, stating: Give me your money. Now. I mean it. While Ms. Jessup initially indicated that she had no money, the robber's nervousness and statement, I know you have money because you just got off from work, eventually persuaded her to produced several one dollar bills. Ms. Jessup was never able to see the assailant's face. The robber fled the Shoney's parking lot on foot. A retired firefighter, John Clark, was driving his pickup a short distance from the site of the robbery when he heard a police bulletin regarding the incident over his scanner radio. Approximately one and one-half blocks away from the restaurant, he spotted a man fitting the description of Ms. Jessup's robber in an alleyway, heading toward a nearby set of railroad tracks. According to Mr. Clark, the man was acting suspicious, in that he was looking around quite a bit. Mr. Clark drove to the Shoney's and told police about his observations. Another motorist, Lena Steele, who was driving on nearby Interstate 64, likewise heard a bulletin on her scanner radio which gave a description of the assailant and indicated that he was last seen near the railroad tracks that lay directly beneath the highway. After spotting an individual walking along I-64 that matched the description of the man wanted by police, Ms. Steele contacted authorities using her cellular phone. Upon obtaining this information, Patrolman Larry Thomas of the South Charleston Police Department drove onto I-64 and pulled in behind a man walking beside the roadway, whom he later identified at trial as Sanders. Sanders immediately fled down the highway and then up an adjacent hillside, but halted after Patrolman Thomas drew his pistol and ordered him to stop. Sanders was found in possession of a dark sweatshirt with eye and nose holes cut out of the hood, a .22 caliber semi-automatic pistol, and several one dollar bills. Sanders was indicted for robbery by the Kanawha County Grand Jury on June 30, 1994. Shortly prior to that date, Sanders' appointed counsel on June 2, 1994 moved for a mental status examination pursuant to W. Va.Code § 27-6A-1(a) (1983), indicating to the trial court that defendant was delusional and unable to assist counsel. The defense motion was granted, and Sanders was subsequently examined on October 12 by Dr. Ralph Smith, M.D., a psychiatrist, and Dr. Rosemary Smith, Psy. D., a psychologist. In a report detailing their findings, these mental health professionals indicated that Sanders was acting in a psychotic manner, as evidenced in part by delusional thinking regarding his involvement in a military mission to protect a Charleston chemical plant from Russian attack. The doctors further noted, however, that several tests raise[d] a great suspicion of malingering as a sole explanation for his behavior. As a consequence, the report stated that because of the conflicting evidence at hand, no conclusive determination could be made concerning Sanders' competency to stand trial. Accordingly, it was recommended that Sanders be placed in a state mental facility for further observation. In response to these findings, the circuit court under authority of W. Va.Code § 27-6A-1(b) ordered that Sanders be admitted to the Forensic Unit of the South Central Regional Jail for a twenty-day observation period, which was later extended pursuant to a joint motion by the State and defense counsel. Clinical evaluation at the South Central Jail was completed in mid-December 1994, with the examining psychiatrist, Dr. Daniel Thistlewaite, M.D., and psychologist, Dr. David Clayman, Ph. D., both concluding that Sanders was incompetent to stand trial based upon bipolar disease and an effectively-based psychotic disorder. It was recommended that Sanders undergo protracted treatment with antipsychotic drugs. The circuit court subsequently determined without a hearing that Sanders was incompetent to stand trial, and, on February 1, 1995, committed him to Sharpe Hospital in Weston, West Virginia, for a six-month improvement period pursuant to W. Va.Code § 27-6A-2(b). An initial report from Sharpe Hospital dated July 12 by forensic psychologist Dr. Theodore A. Glance, Ph. D., indicated that Sanders continued to suffer from a psychotic disorder and remained incompetent to stand trial. Pursuant to Dr. Glance's recommendation, the circuit court ordered an additional three-month period of examination and treatment. By September 1995, the clinicians charged with Sanders' care reported substantial improvement in his mental condition. While continuing to diagnose Sanders as suffering from a psychotic disorder, Dr. Glance stated in his second report that [r]eports noted in the progress notes and from the treatment team, including the psychiatrist Dr. Thomas Adamski and the various treatment team members, suggests that Mr. Sanders has improved considerably since the July, 1995 evaluation. He has been aggressively treated with medications. While he does not actively participate in programming, he is compliant and realistic in his daily behaviors. He has not been reporting thoughts which the treatment team described as delusional. No psychotic activity such as hallucinations are noted in the file by any shift worker.... Malingering has been a consideration of all previous evaluators.... Malingering remains an opinion of a few of the treatment team members. Malingering is not considered as part of this diagnosis since no[ ] symptoms were presented other than lack of memory of the alleged crime. Based upon his finding that Sanders' psychotic disorder was being controlled by medication, Dr. Glance was of the opinion that he was able to assist counsel in mounting a defense at trial. The treating psychiatrist, Dr. Adamski, likewise concluded in a separate report that Sanders was fit to be returned for trial, and cautioned that [o]ne must consider that he is now a veteran of the Mental Health System and that he may well malinger persecutory delusions in order to remain in the hospital. Sanders was later returned to the South Central Jail to await trial. On December 14, 1995, the circuit court entered an agreed order authorizing Dr. Glance to enter the South Central Jail for purposes of interviewing and evaluating Sanders to determine whether he was criminally responsible for the charged offense. During a subsequent April 11, 1996 interview, Sanders became irate under questioning and threw a chair at Dr. Glance. [1] In a report issued immediately after the incident, Dr. Glance posited that the deterioration in the defendant's condition was likely caused by his refusal to comply with his medication needs. Dr. Glance further stated that Sanders' competency to stand trial is suspect, and suggested that the defendant once more undergo a mental-status evaluation to determine whether he remained competent to stand trial. Shortly thereafter, the circuit court again committed the defendant to Sharpe Hospital, where he remained until June 1997. Prior to Sanders' return to the regional jail, Dr. Glance issued a report on May 27, 1997, where he observed that the defendant's mental status was dramatically different from that observed during the April 11, 1996 chair-throwing incident. While Sanders was diagnosed as suffering from paranoid schizophrenia, the circuit court was informed that the condition was in remission, and that the still-existent schizoid personality disorder suffered by Sanders did not render him incompetent to stand trial. Dr. Glance, cautioned, however, that in the event Sanders' trial were not held promptly, it was likely that his condition would disintegrate to the point of incompetency. Upon his final return from Sharpe Hospital, Sanders was arraigned on July 7, 1997 and entered a plea of not guilty. At the same hearing, defense counsel requested and were granted leave to obtain further psychiatric and psychological evaluation for Sanders by experts of their choice. Sanders' counsel thereafter served notice under W. Va. R.Crim. P. 12.2(a) of the defendant's intent to rely upon an insanity defense at trial. On August 29, 1997, Sanders was examined by psychiatrist Dr. F. Joseph Whelan, M.D., who was chosen by defense counsel. Dr. Whelan, based upon his own observations as well as review of past reports, diagnosed Sanders as suffering from bipolar disorder, which he determined was in partial remission. He further indicated in a report dated December 1, 1997, that Sanders was not criminally responsible for the charged robbery, and was likewise incompetent to stand trial. Defense counsel also arranged for Sanders to undergo an examination by Mari Walker, M.S., a licensed psychologist. In a report dated November 19, 1997, Ms. Walker stated that Sanders appear[s] to this clinician to be suffering from psychological symptomatology which he denie[s]. She went on to state in her report: Mr. Sanders fulfills the diagnostic criteria (DSM-IV) for Bipolar Disorder, NOS. He is not considered competent to stand trial. He would have difficulty objectively processing information, maintaining attention or making judgments for his own best benefit..... Continued psychiatric treatment is very strongly recommended. At a December 1997 status hearing, the results of these most recent psychiatric and psychological evaluations were discussed, at which time defense counsel asserted that Sanders was incompetent to stand trial. After sparring between the State and defense counsel concerning whether Sanders should once more be sent to Sharpe Hospital for an improvement period, the trial court made clear that it would require a hearing [2] on the issue of defendant's mental competency prior to taking any further action in the case. At the conclusion of the status hearing, the court put the onus on defense counsel to promptly schedule a competency hearing for a time when it was convenient for their expert witnesses. While the defense initially indicated its intention to proceed with a competency hearing in January 1998, no immediate action was taken. Rather, on July 8, 1998 the circuit court endorsed an agreed order permitting Dr. Glance to once more interview and evaluate Sanders regarding his competency to stand trial. In his final report, based upon an interview conducted on July 10, 1998, Dr. Glance observed that Sanders did not evidence any psychotic symptoms such as loose associations, clanging, or neologisms. Echoing his earlier May 1997 report, Dr. Glance stated that Sanders' schizophrenia was in remission, in this instance without the use of medication, and that he was competent to stand trial. A competency hearing was finally held on August 19, 1998. The sole witness at this proceeding, Dr. Glance, was called by the State. Based upon his July 10 examination, Dr. Glance testified that in his opinion Sanders was competent to stand trial. In reaching this conclusion, Dr. Glance observed that Sanders was no longer under medication, suggesting that he no longer require[d] neuroplectic[] [drugs] to keep his mind free of psychotic thought. As to the sustainability of Sanders' competency, however, defense counsel elicited the following testimony on cross-examination: Q Doctor, ... if we were to schedule this trial ... within, let's say, the next month or so, based on your observations and your interview with my client ..., would my client's condition degenerate within the next month to such an extent that it perhaps renders the necessity of another competency hearing? A Mr. Sanders, as I—he can get fired up and angry and irritated and I can't—it depends upon how angry and irritated he may get in the sense of how he is going to handle the anxiety. Based on history, I know Mr. Sanders in personal experience with me has not done well over time when left to stew, so to speak, over an impending or upcoming legal event. Q Would you suggest that this trial be held relatively expeditiously? A Forthwith, yes, I would. There is a risk of disintegration, yes. Defense counsel did not present any evidence on the issue of mental competency. One of Sanders' lawyers, Matthew Victor, stated during the hearing that [i]f I wanted to send Mr. Sanders back to Weston, [3] I would have had two witnesses that could have testified about his incompetence. I have chosen not to bring in these witnesses because I do believe that Mr. Sanders is competent at this point .... (Footnote added.) The circuit court, based in part upon Dr. Glance's unrebutted report and testimony, found Sanders competent to stand trial. Sanders' trial did not commence until December 7, 1998. Defense counsel had sought and obtained a continuance from an earlier October trial date in order to have Sanders evaluated on the issue of criminal responsibility. Sanders was examined by Drs. Ralph Smith and Rosemary Smith [4] on October 16, 1998; however, it proved impossible to make any determinations as to the defendant's criminal responsibility at the time of the offense, since he refused to cooperate with the examining physician and psychologist. A report prompted by this incident was received by the circuit court on November 17, 1998, and appeared to raise serious questions concerning Sanders' present capacity to assist in his defense: Mr. Sanders' diagnosis remains an enigma. His behavior at the time of the interview and his mother's report calls into question as to whether he has continued psychotic symptoms. By reports from the Sharpe Hospital and Forensic Unit at the South Central Regional Jail, Mr. Sanders did have psychosis that was evident in 1994, for which he was treated. However, he has been off medication over the last year and a half, has been uncooperative with his attorneys, was uncooperative with the psychiatric examination, seems peculiar to his mother, and may have symptoms that he is hiding. The record of Sanders' trial is replete with evidence of irrational and self-defeating behavior. At the very outset of proceedings, Sanders at one point refused to enter the courtroom until his leg shackles were removed. A deputy charged with his transport stated at that Sanders was rambling on about his innocence, and how the court had already found him guilty. Once seated in the courtroom, it became apparent that Sanders desired to appear before the jury in his jail-issue orange jumpsuit, notwithstanding urging by counsel and the court that he change into street clothes. Defense counsel also made it clear on the record that Sanders was refusing, against their advice, to permit the introduction of any evidence bearing upon his criminal responsibility. Also, it became apparent that Sanders was refusing to permit one of his lawyers, Matthew Victor, to actively participate in the trial. After the State completed its case-in-chief, the issue arose as to whether Sanders would testify on his own behalf. Defense counsel made the following statement: MR. HIVELY: Mr. Sanders at different times has told me he didn't want to testify; he does want to testify. As of last night, apparently he did not want to testify. Earlier, just this afternoon, he said he wants to testify. I told him that there would come a point when the Court would inquire as to his options; that the Court would instruct if he declined to testify, that they couldn't infer anything from that, but I feel at this point you have to inquire of Mr. Sanders. A colloquy ensued between the trial court and the defendant, where Sanders indicated his intent to testify. Defense counsel subsequently requested an opportunity to talk alone with Sanders, and, following a brief recess, counsel informed the court as follows: MR. HIVELY: Your Honor, during the recess Mr. Victor and I talked with Mr. Sanders about testifying, what he would testify. Basically, he refuses to tell us what he would testify to. In prior interviews, we had an understanding of what he would say if he was called upon. We just wanted to narrow and just go over his testimony. He refused to tell us and said he wasn't going to tell us what he was going to testify to. Also, I would like to place on the record that based upon his behavior today in the courtroom, it is against my advice that he testify. THE COURT: It's what? MR. HIVELY: It would be against my advice for him to testify. If he testifies, it will be against my advice. I think that in testifying as a witness, the conversation with me, getting angry and carrying on, that on the witness stand if he carries on as well, then the jury can draw a negative inference from that. Defense counsel requested a recess until the following day, but after Sanders insisted upon testifying [t]his evening, right now, the trial court reluctantly acceded to the defendant's request and permitted him to take the witness stand. In the course of direct examination by defense counsel, Sanders briefly and succinctly answered questions concerning his life history. When asked a question regarding his encounter with Ms. Jessup, however, the defendant proceeded to engage in a lengthy and largely incoherent monologue regarding the incident as well as his subsequent arrest. This was followed by Sanders refusing to answer several questions on grounds of self-incrimination: Q Why did you ask the woman, if you asked her, why did you ask her for money? A I plead the Fifth. Q That woman you asked for money, did you pull the gun on her? A No. Q But you asked for money because you just needed money, right? A That is not the case here. I want the lady that said I robbed her up there, not some other—she didn't even have glasses on. This is 1994. I'm sure if you've got a gun, you are going to wear your glasses. Q At some point, the officer stopped you, didn't he? A Yes. Q Did he recover a gun from you? A I plead the Fifth. Q You had a gun because somebody had robbed you before, right? A I plead the Fifth. Q And you used that for your protection? A I plead the Fifth. Q But on April 17th, you didn't rob anybody, did you? A I plead the Fifth. Robbery is not the point here.... Sanders likewise refused to answer the sole question posed on cross-examination, which asked if he was carrying a black hooded sweatshirt when arrested. At the close of evidence on the first day of trial, following the additional testimony of two character witnesses, one of Sanders' lawyers moved for a mistrial, stating that that the psychosis that he has suffered from `94 off and on, different doctors and evaluations, is still evident. [5] The trial court denied the motion, indicating only that it was for the same reasons I've already put on the record. The jury found Sanders guilty of robbery the following day after deliberating only 38 minutes, and answered an interrogatory concerning his use of a firearm in the affirmative. Sanders was subsequently sentenced to forty-years imprisonment pursuant to W. Va. Code § 61-2-12. A motion for a new trial predicated upon Sanders' purported lack of mental competency at the time of trial was later denied by the trial court, and this appeal followed.",facts
+425,4535988,1,1,"This is an original action brought by the Counsel for Discipline of the Nebraska Supreme Court against attorney Brandon B. Hanson. This action alleges Hanson violated several provisions of the Nebraska Rules of Professional Conduct and his oath as an attorney by preparing legal documents for his girlfriend without including a “Prepared By” notation as required by Neb. Ct. R. of Prof. Cond. § 3-501.2(c) (rev. 2016). At the time, Hanson was employed as the Valley County Attorney and Hanson’s girlfriend, a former Valley County employee, was involved in a lawsuit as a self-represented litigant regarding the reasons for her termination from the Valley - 568 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. HANSON Cite as 305 Neb. 566 County sheriff’s office. This is the first time Hanson has been the subject of a disciplinary action.",introduction
+426,2063984,1,1,"Did the trial court err in denying the defendant's motion to suppress? On appeal, the defendant makes three claims of constitutional dimension: (1) that the entry into the Kraimer residence was not justified under the emergency exception to a warrant requirement and therefore, all of the evidence obtained should have been suppressed under the fruit of the poisonous tree doctrine; (2) if the police were justified in entering the defendant's home, the failure of the police to give Kraimer his Miranda rights before asking him about his wife required suppression of all of his subsequent statements; and (3) assuming the initial entry to be unlawful, the defendant's statements to the police when he encountered them in his home were not voluntary and thus, there was neither a consent to the search or a cleansing of the primary taint of the unlawful invasion and therefore, the decision of the court of appeals was in error. The state, in essence justifies the search and seizure herein on two bases: (1) the officers were confronted with an acute emergency, to-wit: a possible homicide and a danger of harm to the children confined in the home with a possible murderer, thus the initial entry was lawful and the defendant's fruit of the poisonous tree argument must fail; and (2) because the defendant voluntarily consented to the officers' presence in his home, he thereby waived and removed any taint of unlawful invasion and therefore the fruit of the poisonous tree doctrine would be inapplicable as to an illegal entry into the defendant's house. Thus, we are initially presented with the question of whether the emergency rule justified officers Frievault and Holton's entry into the Kraimer residence as an exception to the Fourth Amendment search warrant requirement. The emergency doctrine has been defined generally as follows: Law enforcement officers may enter private premises without either an arrest or a search warrant to preserve life or property, to render first aid and assistance, or to conduct a general inquiry into an unsolved crime, provided they have reasonable grounds to believe that there is an urgent need for such assistance and protective action, or to promptly launch a criminal investigation involving a substantial threat of imminent danger to either life, health, or property, and provided, further, that they do not enter with an accompanying intent to either arrest or search. Moscolo, The Emergency Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buff. L. Rev. 419, 426 (1972). The justification for this exception to the warrant requirement has its underpinnings in the Fourth Amendment itself. As we stated in Bies v. State, 76 Wis.2d 457, 251 N.W.2d 461 (1977), The ultimate standard under the Fourth Amendment is the reasonableness of the search or seizure in light of the facts and circumstances of the case. State v. Elam, 68 Wis.2d 614, 621, 229 N.W. 2d 664 (1975); Cady v. Dombrowski, 413 U.S. 433, 439, 93 S. Ct. 2523, 37 L. Ed.2d 706 (1973). (emphasis supplied). Id. at 468. See also: State v. Flynn, 92 Wis.2d 427, 445, 285 N.W.2d 710 (1979) and State v. Pires, 55 Wis.2d 597, 609, 201 N.W.2d 153 (1972). The element of reasonableness with regard to the emergency rule is supplied by the compelling need to render immediate assistance to the victim of a crime, [7] or insure the safety of the occupants of a house when the police reasonably believe them to be in distress and in need of protection. [8] In LaFournier v. State, 91 Wis.2d 61, 67, 280 N.W.2d 746 (1979), this court, commenting on State v. Pires, supra , stated We have recognized an `emergency rule exception' that neither the Fourth Amendment nor the Wisconsin Constitution bars peace officers from making warrantless entries where they reasonably believe that a person within is in need of aid. We held that in the instant case an entry to locate and aid the victim [of drug overdose] required no warrant. . . . LaFournier, supra at 71. Most recently, in State v. Prober, 98 Wis.2d 345, 297 N.W.2d 1 (1980), this court adopted a two-step analysis for determining when a warrantless search that is claimed to be justified under the emergency doctrine would be reasonable and therefore valid. Under this analysis, the exigency of the situation confronting the police is tested both objectively and subjectively. In Prober we stated: First, the search is invalid unless the searching officer is actually motivated by a perceived need to render aid or assistance. Second, even though the requisite motivation is found to exist, until it can be found that a reasonable person under the circumstances would have thought an emergency existed, the search is invalid. Both the subjective and objective tests must be met. Id. at 365. [1] Thus, the determination of whether the emergency exception to the search warrant requirement applies in this case requires the resolution of two issues: (1) were Officers Frievault and Holton actually motivated by a perceived need to render aid or assistance, and (2) were the circumstances confronting these officers at the time they entered the Kraimer residence such that a reasonable person would have believed that an emergency existed. Prober, supra at 360-66. The search sought to be justified under the emergency exception must be held invalid unless both of these questions are answered affirmatively. Id. In other words, the search was valid if the officers subjectively perceived a need to render immediate aid or assistance and intended to do so when they entered the defendant's home, and the facts, viewed objectively, support the conclusion that the officers had probable cause to believe there was an emergency at hand and immediate action was needed for the protection of life or property. Before examining the applicability of the Prober emergency doctrine, we note that the defendant cites only the general rules applicable to search and seizures, namely, that searches conducted without warrants are per se unreasonable and the burden of showing that a case falls within an exception is upon the state. Bies v. State, supra at 463, citing Coolidge v. New Hampshire, 403 U.S. 443, 454, 455 (1971) and Pires, supra at 603. Further, Kraimer directs our attention to the principle . . . that there are recognized distinctions in the appropriate levels of protection afforded by the Fourth Amendment to different forms of intrusion. Wendricks v. State, 72 Wis. 2d 717, 722, 242 N.W.2d 187, 190 (1976). The highest level of protection is afforded to a dwelling place. See: State v. Pires, 55 Wis.2d 597, 604, 201 N.W.2d 153, 157 (1972). State v. Monahan, 76 Wis.2d 387, 395, 251 N.W.2d 421 (1977). We are cognizant of the foregoing general rules, but as both parties agree that the question with regard to the initial entry of Kraimer's home is whether the emergency doctrine is applicable, the general rules are of little aid in this analysis for the test of the applicability of the emergency doctrine is that set forth in Prober. Turning to the subjective step of the Prober analysis, we note that the trial court failed to make a finding as to the actual motivation of the officers at the time of their entry into the defendant's home. We wish to point out, however, that this was not required of the trial court on the date of the suppression hearing as the Prober decision was rendered subsequent thereto. Thus, we are presented with a preliminary issue of whether this court can make its own finding as to the subjective intent of the officers at the time they entered the defendant's home. In Barnes v. State, 25 Wis.2d 116, 130 N.W.2d 264 (1964), this court stated: In the instant case we do not have the benefit of any finding of fact by the trial court with respect to whether or not defendant voluntarily consented to the search. We, therefore, must make our own determination of this factual issue upon the evidence before us.  (Emphasis supplied.) Id. at 122. Barnes, supra, was followed by Howland v. State, 51 Wis.2d 162, 186 N.W.2d 319 (1971), where the trial court again ruled that evidence alleged to have been obtained as a result of a warrantless search was admissible in the absence of specific findings of fact. In Howland, supra, this court, after an independent review of the record, concluded . . . that the evidence adduced at the pre-trial hearing would support only one of two possibilities. Either the defendant voluntarily produced the boots [evidence seized] himself or he consented to a search in which the boots were discovered [in plain view]. Id. at 170. Thus, it held that the trial court's ruling on the admissibility of the boots was correct and supported by adequate credible evidence. Id. [2] Thus, this court has held that when a trial court has not made an ultimate finding of fact on the issue of whether the defendant voluntarily consented to a search, it must make its own independent determination on that particular factual question upon the evidence contained in the record. Howland, supra ; Barnes, supra . Moreover, it is important to note that this court has also held: On review of an order suppressing evidence, the findings of fact, if any, of the trial court will be sustained unless against the great weight and clear preponderance of the evidence. State v. Pires, supra, 55 Wis.2d at 602, 603. However, this court will independently examine the circumstances of the case to determine whether the constitutional requirement of reasonableness is satisfied. See State v. Carter, 33 Wis.2d 80, 89-96, 146 N.W.2d 466 (1966), cert. denied 387 U.S. 911; Ker v. California, 374 U.S. 23, 33, 34, 83 S. Ct. 1623, 10 L. Ed.2d 726 (1963). (Emphasis supplied.) Bies, supra at 469. Although Howland, supra, and Barnes, supra, involved the issue of consent to search, we believe that the question of the officers' actual motivation in entering the Kraimer home is analogous to that of a defendant's consent to a search and thus under Barnes, supra, this court must make its own independent determination of this factual issue upon the evidence. Since Prober sets forth the test for determining whether the reasonableness requirement is met where the emergency exception is invoked to justify a warrantless search, under Bies, supra, we are, in any event, obliged to make an independent examination of the facts of this case to ascertain if the Prober two-step analysis is satisfied. Of the two officers who made the initial entry into the defendant's home, Frievault was the only one to testify at the suppression hearing. Frievault stated that he entered the Kraimer residence to investigate the status of Kraimer's wife and/or a possible burglary and to ascertain as to the welfare of Kraimer's children. Indeed, the fact that Frievault discussed the well-being of the defendant's children with one of his neighbors and his testimony that his suspicions were aroused when the neighbor stated she saw the children over the weekend because the school authorities had advised the police the children were reported to be on vacation, clearly demonstrates that he was concerned for their safety. As recited in his testimony, Frievault's purpose in entering the Kraimer residence was to investigate the status of the defendant's wife or a possible burglary. Further, Frievault's actions illustrate that he was concerned with a possible homicide as immediately upon entering the house, he proceeded to the second floor bathroom as he was told that if this were a homicide, the victim would most likely be found in that area. Additionally, the fact that Frievault's first question to the defendant after he ascertained that the defendant was the caller was Where is your wife? rather than Where is the body? or Did you kill your wife? illustrates that Frievault's main purpose was not to secure evidence of a crime, but, rather, was one of determining Mrs. Kraimer's condition and assisting her if in fact she was still alive. Thus, upon finding her in an upstairs bedroom, Frievault's initial action was to check for signs of life, as it was his duty to determine whether she was dead or alive. In Prober we recognized that . . . there are inherent difficulties in assessing the purpose of a search, . . . Id. at 366, but stated that this determination could best be made from an analysis of the officer's testimony and the manner in which he conducted the search. Id. We also stated Conduct by the searching officer which is inconsistent with the purported reason for entry is cause for skepticism. Id. Frievault's testimony relating his conduct prior to and upon entering the defendant's residence demonstrates that he was actually motivated by a perceived need to render immediate aid and assistance to the defendant's wife, if alive, as well as to protect and insure the Kraimer children from the obvious risk of possible serious harm from their emotionally upset and distraught father. For, all too frequently, one who kills his wife will also kill himself as well as his children. [9] Thus, this case is distinguishable from Prober, for in Prober the searching officer testified no less than three times that the sole purpose for the search was to inventory the contents of the defendant's car. Id. at 364, 366. The defendant argues that Frievault's conduct in driving to a call box to request assistance and waiting until the assistance arrived before he entered the defendant's home illustrates that Frievault did not believe he was confronted with an emergency situation requiring immediate action. Further, he argues that Frievault was not concerned with the well-being of Kraimer's children because he did not inquire as to their status after encountering Kraimer in his living room. [3] Although it is clear that the emergency exception is based upon the perceived need to take immediate action, i.e., the officer must be confronted with what he believes to be an exigent situation, the totality of the circumstances surrounding Frievault's conduct unequivocally demonstrated a belief that there was a need for prompt response to a perceived emergency not only involving the defendant's wife but his children as well. Indeed, given that there existed a possibility that Frievault would be confronted with an emotionally upset or distraught and potentially psychotic individual, it was his duty to call for assistance or take some other reasonable precautionary measure to protect against a risk of serious harm to the children as well as himself. Additionally, the fact that Frievault did not ask Kraimer where his children were does not support the defendant's claim as he saw the children at the same time he saw Kraimer, and thus there was no need to question Kraimer with regard to his children for Frievault could determine for himself whether or not they were in need of aid or assistance at that time. Hence, the record clearly demonstrates a subjective belief on the part of Officer Frievault that he was confronted with an emergency and that his entrance into the Kraimer home was for the purpose of rendering aid to the victim of a reported homicide and protecting and insuring the safety of the defendant's children. Therefore, we hold that the subjective portion of the Prober test is satisfied in this case. The question with regard to the objective step of the Prober analysis is whether a reasonable peace officer would, under the circumstances, have had reason to believe that an emergency existed at the Kraimer home. The circuit court found that the entry was justified because the officers had probable cause to believe that a burglary had taken place. [10] On appeal, the state does not abandon the burglary theory even though they did not address this possible justification for the entry before this court. Rather, as noted above, it claims that the entry was lawful because the officers had probable cause to believe the report of a possible homicide at the Kraimer home. Thus, not knowing the condition of Kraimer's wife, the officers could reasonably conclude that an emergency existed because it was necessary for them to gain immediate entry to determine the status of the victim (Mrs. Kraimer) as well as to investigate and protect the welfare of the defendant's children. Although the state does not abandon the burglary theory, it contends that there is no need to consider this theory because the entry was justified on the ground that the police had probable cause to believe there had been a possible homicide at the Kraimer home. Thus, we must consider whether the Racine Police Department had probable cause to believe there was a homicide at the Kraimer residence, for as the state contends, if probable cause existed as to a homicide, there is no need to consider the burglary theory. The defendant counters the state's homicide emergency argument claiming that the information possessed by the police officers before they entered the Kraimer abode, when viewed objectively, did not support a reasonable belief that the defendant's home was the locus of the reported homicide or that the officers were confronted with an emergency and, therefore, the second step of the Prober test has not been met. Additionally, the defendant contends that the circuit court found that there was no probable cause to justify the entry on a homicide theory and thus we are bound by this finding unless it is contrary to the great weight and clear preponderance of the evidence. Bies, supra ; Pires, supra . In support of the latter claim, Kraimer refers us to the following statements by the trial court: I think there is one thing I'd like to clarify so your argument will stay with what I feel is important. They had no information. They [the police] had a phone call saying that perhaps somewhere in the city there was a wife in the bedroom. They had no information that in the Kraimer home there was a wife in the bedroom. He [Frievault] did not know whether or not there was this phone call that they had received actually — actually reported a homicide or not. He did not know if he was dealing with a crank. He did not know what was occurring, whether it required further investigation to see, do I have a crime here or don't I have a crime here? . . . He didn't know whether he was dealing with a crime in which Mr. Kraimer was involved or not. Thus, we must initially determine whether the trial court's statement quoted above constitutes a finding that the police did not possess probable cause to believe that a homicide had been committed and that the defendant's home was the situs of the reported crime. The defendant emphasizes the court's language to the effect that Frievault had no actual knowledge that a homicide had taken place at the Kraimer residence. The requirement of probable cause does not demand that [the searching officer] have had knowledge showing that there had been a [homicide in the defendant's home] beyond a reasonable doubt. Bies, supra at 475. Thus, since the above quoted trial court statements refer only to an absence of knowledge, the defendant's claim that they constituted a finding of no probable cause as to a homicide at the Kraimer residence lacks merit. Therefore, in the absence of a finding by the trial court on this factual issue, we must independently review the record to determine whether the police had probable cause to believe that a homicide had taken place at the Kraimer home. See: Barnes, supra . The test of probable cause is whether the [officers] had knowledge that would lead a reasonable police officer to believe it probable that [an emergency existed] (citation omitted). Bies, supra at 475. The probable cause requirement must be applied by reference to the circumstances then confronting the officer, including the need for prompt assessment of sometimes ambiguous information concerning potentially serious consequences. 2 La Fave, Search and Seizure, § 6.6(a) (1970). Along this line of reasoning, this court has stated: Police have the right to undertake ` legitimate and restrained investigative conduct . . . on the basis of ample factual justification' even though that justification falls short of what would be required to support arrest or formal search. Terry v. Ohio, 392 U.S. 1, 15, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968). In Terry the Court recognized the existence of `[a] rubric of police conduct . . . which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved . . . must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.' 392 U.S., at 20. . . . In Browne v. State, 24 Wis.2d 491, 507, 129 N.W.2d 175 (1964), cert. den. 379 U.S. 1004, this court acknowledged that police may investigate claims of crime on evidence not sufficient to justify an arrest, and stated: `Although the Fourth Amendment and sec. 11, art. I [Wis. Const.] protect against police invasion of privacy, police officers should be permitted to conduct a reasonable investigation when their suspicion has been reasonably aroused. Whether an inquiry is considered reasonable must depend upon the facts in each case and must turn on the application of what is essentially an indeterminate and flexible test. ' The standard is an objective one: `[W]ould the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief that the action taken was appropriate.' Terry v. Ohio, supra, 392 U.S. at 21, 22. `[I]n determining whether the officer acted reasonably . . . due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.' Id., at 27. (Emphasis supplied.) Bies, supra at 465-66. Thus, the inquiry here is whether upon an objective analysis of the circumstances confronting Officers Frievault and Holton, including the nature and reliability of their information, it can be said that their investigative conduct was supported by a reasonable belief that an emergency existed. Prober, supra at 365; Bies, supra at 469. The state claims that the probable cause requirement of the Prober emergency rule is satisfied in this case because the police had credible information that a possible unnatural death may have occurred in the defendant's home and that this situation, combined with the defendant's upset and distraught mental condition, posed a danger to the children. Kraimer's reply to the state's argument is that the facts in this case do not support a finding of probable cause of the existence of an emergency at his residence. He, in essence, maintains that the anonymous calls were not credible, but even if credible, the police did not have probable cause to believe that the Kraimer abode was the home of the caller. He claims that the information gained from the local schools had no bearing on either the credibility of the caller or the existence of an emergency at the caller's home. Further, he argues that since the caller said that he killed his wife four days ago, no emergency existed. The defendant's assertion that the information gained from the telephone calls was not credible rests primarily upon this court's statement in Bies, supra at 470, that since information received in that case was from . . . an anonymous telephone caller; it therefore was not possessed of even minimal `indicia of reliability.' Bies is clearly factually distinguishable from this case. In Bies, supra, the police received one anonymous call that someone was making noise shortly after midnight in an alley located near the defendant's premises. Upon reaching the alley, the officers observed a light in the defendant's garage go out. Believing that this was a response to their presence, the officers became suspicious and upon further investigation, observed what they believed to be stolen telephone cable in the defendant's garage. In this case, the police received not one but three anonymous calls. Further, the calls were urgent requests for help and constituted an admission against the caller's penal interest. Under these circumstances, we believe the statement in Bies to be inapplicable for the calls herein, although anonymous, can be said to have possessed sufficient indicia of reliability because of the fact that the caller made three calls requesting assistance and that he admitted shooting his wife, a statement that people do not lightly undertake to make. Further, the fact that the police obtained the names of three families with three school age children with the eldest being twelve absent that day corroborates the information received from the caller. [4] Turning to the defendant's claim that the police had no reason to believe that the Kraimer residence was the home of the caller, we note that the police had contacted the local elementary schools to ascertain whether their absentee records for that day could give them any leads to match the information the defendant gave them regarding his children. The school authorities gave the police three leads as to possible homes involved, two of which were eliminated after investigation, before the police went to the defendant's home. The officers, as a result of prompt and thorough police work, received corroborating information from the local schools with regard to the defendant's children being absent. The following facts are determinative of the probable cause issue: (1) three phone calls for help from an emotionally upset individual who reported shooting his wife and who stated that his four children, three of whom might possibly be of school age, were home with him; (2) a report from school authorities stating that the Kraimer children were on vacation; (3) an investigation that gave rise to three leads on the basis of the information regarding the defendant's children; and (4) the elimination of two of the leads leaving only the defendant. We hold that a reasonable police officer possessing this information would believe it probable that an emergency existed because further and immediate investigation was necessary in order to render aid to Mrs. Kraimer, if alive, and to insure the safety of the Kraimer children. Thus, the second step of the Prober analysis has been satisfied, and, therefore, the initial entry into the Kraimer abode was justified under the emergency exception. The defendant's claim that the police had no reason to believe an emergency existed because the caller reported his wife was dead for four days lacks merit for it ignores the testimony of Officer Frievault that when he went to the Kraimer home in response to three phone calls from a highly emotional and distraught individual that there was no way for me to know that there would have been a homicide at that home. Additionally, this contention overlooks the risk of serious harm to the defendant's children, for as noted above, it is not uncommon for a man in Kraimer's emotionally upset and distraught condition to take his own life as well as his children's. Moreover, as stated by the Delaware Court: Frequently, the report of death proves inaccurate and a spark of life remains, sufficient to respond to emergency police aid. As a general rule, we think an emergency may be said to exist, within the meaning of the `exigency' rule, whenever the police have credible information that an unnatural death has, or may have, occurred. And, the criterion is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact. (Citations omitted). Patrick v. State, 227 A.2d 486, 489 (Del. 1967). Thus, although the caller reported that his wife was dead for four days, the police had no way of knowing this as a verity and therefore an emergency existed because . . . apparent death may turn out to be barely surviving life, still to be saved. State v. Epperson, 571 S.W.2d 260, 264 (Mo. 1978). Having concluded that the initial entry was lawful, the defendant's fruit of the poisonous tree claim must fail, and therefore, the trial court did not err in denying the defendant's motion to suppress the physical evidence. [11] [5] We now turn to the defendant's claim that his Miranda rights were violated by the failure of the officers to inform him of these rights before asking where his wife was. The trial court found that this inquiry into the location of the defendant's wife was investigatory rather than accusatory and thus, Miranda did not apply. This issue is controlled by our holding in Britton v. State, 44 Wis.2d 109, 170 N.W.2d 785 (1969). In that case a police officer arrived at the scene of a shooting shortly after it occurred and was informed that the assailant had just run into a gangway between two nearby houses. The officer gave chase and saw a man coming from the door of a house as he reached the end of the gangway. He asked the man if he had been involved in the shooting and the man replied Yeah, I shot him. This court held that the trial court did not err in denying the defendant's motion to suppress this statement because it was completely voluntary and not made in response to any custodial interrogation. We observed that the officer was merely attempting to sort out the facts and that the question was a natural and spontaneous reaction to the circumstances before him. Thus, we concluded that: The officer had not proceeded beyond general on-the-scene questioning which is specifically exempted in Miranda: `Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. Illinois. . . . When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.' (emphasis added). Miranda, supra, pp. 477, 478. `In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions.' (Emphasis added.) Miranda, supra, p. 481. Britton, supra at 113-14. In the present case, Frievault's question Where is your wife? was a natural reaction to the situation confronting him. After ascertaining that Kraimer was the caller, the question Where is your wife? was merely an attempt to discover her whereabouts, for at this point in time, Officer Frievault did not know whether Mrs. Kraimer was alive or dead. Indeed, since Frievault was investigating a reported emergency, his query can only be viewed as a general-on-the-scene questioning in order to determine whether in fact Mrs. Kraimer was present and in need of assistance. Thus, we conclude that the officers were not required to advise the defendant of his constitutional rights and Miranda did not apply at the time Frievault asked this question because he was performing an investigation of a reported emergency and crime. Therefore, we hold that the court's failure to suppress the defendant's statement was not error. By the Court. — Decision of the court of appeals is affirmed. SHIRLEY S. ABRAHAMSON, J. ( concurring ). I agree that the decision of the court of appeals should be affirmed. I do not agree that this record satisfies the subjective prong of the State v. Prober, 98 Wis.2d 345, 365, 297 N.W.2d 1 (1980), test. On the facts before us, I would employ the analysis used by the court of appeals, see State v. Kraimer, 91 Wis.2d 418, 283 N.W.2d 438 (Ct. App. 1979), to decide this case.",issues
+427,865169,2,5,"15 Sergeant White searched Hebert’s car after detaining Spicer and deciding to impound the truck until a positive identification of Spicer could be made and the identify of the owner determined. During the search, Sergeant White discovered registration papers stating Hebert to be the owner of the truck. 22 ¶37. At the close of the evidence, Spicer moved the trial judge for a directed verdict, arguing that the State had presented legally insufficient evidence to prove Spicer guilty of capital murder. The trial judge denied Spicer’s motion, and Spicer now argues that the trial judge’s denial was erroneous. ¶38. When reviewing the legal sufficiency of the evidence, this Court’s standard of review is as follows: [This Court] must, with respect to each element of the offense, consider all of the evidence–not just the evidence which supports the case for the prosecution–in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. [This Court] may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Franklin v. State, 676 So. 2d 287, 288 (Miss. 1996). Spicer argues that there was not legally sufficient evidence to support a conviction of the underlying felony of robbery. A capital murder conviction under Miss. Code Ann. § 97-3-19(2)(e)16 must be supported by evidence legally sufficient to support a conviction of both the murder and the underlying felony, had either been charged alone. Fisher v. State, 481 So. 2d 203, 212 (Miss. 1985). Spicer claims that the only 16 Miss. Code Ann. § 97-3-19(2)(e) states: (2)The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases: (e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnaping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies. 23 evidence to support a robbery conviction was the mere possession of Hebert’s Nissan truck,17 and the testimony of Michael Jones, a convicted felon.18 According to Spicer, there was no evidence to suggest Spicer had an intent to rob Hebert prior to Hebert’s death. Spicer cites no Mississippi case law to support his argument. ¶39. Spicer’s argument is not persuasive. In Knox v. State, the defendant argued that the prosecution failed to prove he intended to rob the murder victim. 805 So. 2d 527, 531 (Miss. 2002). Knox claimed that the prosecution presented no direct evidence as to when and under what circumstances he came into the possession of the murder victim’s keys. Id. Therefore, according to Knox, the jury could not have determined beyond a reasonable doubt that Knox had committed an underlying robbery. Id. This Court rejected Knox’s argument, stating: Fully considering the crime in question, the location of [the murder victim’s body] in the trunk of her car, and the keys to that car in Knox's possession even after he changed his clothes, it is clearly a question for the jury whether [the murder victim] was robbed or whether it was Knox's intent to rob her. Id. Later in the opinion, this Court reiterated: [W]hen the defendant is discovered with the personal property of the deceased on his person it is entirely within reason for the jury to find that this fact in itself constitutes robbery. It is also within the jury's province to conclude that Knox killed [the murder victim] intending to take her car and that he either failed to do so or intended to return at a later time. 17 As part of his defense, Spicer elicited testimony from Jerry Woodward, the owner of a convenience store in Jackson County which Spicer and Hebert frequented, stating that he had observed at times previous to the murder Spicer driving Hebert’s truck alone. Spicer was attempting to prove Hebert allowed Spicer to borrow the truck and thus Spicer had permission to drive the truck the day he was caught in Jackson County. 18 Jones rode with Spicer in Hebert’s truck before Spicer picked up Hinger. Jones testified that Spicer told him “the truck is stolen.” 24 Id. at 532. ¶40. The present case is analogous to Knox. Law enforcement officials discovered Spicer in possession of Hebert’s truck and a sword taken from Hebert’s trailer. Following the holding of Knox, possession of a deceased’s property creates a reasonable inference that the property was stolen. Therefore, a reasonable juror could determine that Spicer stole Hebert’s property. In addition to Spicer’s possession of Hebert’s property, there was testimony that Spicer admitted to Michael Jones that the truck was stolen. The jury is the final arbiter of a witness’s credibility. Morgan v. State, 681 So. 2d 82, 93 (Miss. 1996). Accordingly, there was enough legally sufficient evidence to determine Spicer robbed Hebert and convict Spicer of capital murder under Mississippi law. We find that Spicer’s fifth assertion of error is without merit. VI. Denial of a Lesser-Included Offense Instruction ¶41. Spicer argues that the trial judge erred by not instructing the jurors that they could find Spicer guilty of the lesser-included offense of murder.19 The trial judge refused two such instructions by Spicer on the basis that there was no evidence in the record that would justify the lesser-included offense of murder.20 Thus, the only potential findings by the jury were that Spicer 19 Murder is a lesser-included offense of capital murder. Howell v. State, 860 So. 2d 704, 744 (Miss. 2003). 20 Spicer’s proposed instruction D-3 stated: The Court instructs the Jury that if the evidence warrants it and you so believe from the evidence in this case, beyond a reasonable doubt, then you may find the Defendant guilty of a lesser crime than Capital Murder. However, notwithstanding this right, it is your duty to accept the law as given to you by the Court, and if the facts and law warrant a conviction of the crime of Capital Murder, then it is your duty to make such findings 25 was guilty of capital murder or not guilty of any offense. Spicer asserts that because there was some evidence supporting his contention that he did not rob Hebert, he was entitled to a jury instruction of the lesser-included offense of murder that would allow the jury to convict him of a non-capital offense. ¶42. As support for his argument, Spicer cites Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). In Beck, the United States Supreme Court held as unconstitutional the imposition of a death sentence on a defendant convicted by a jury of a capital offense when the jury was not permitted to consider a verdict of guilt of a lesserincluded offense despite evidence supporting a lesser included offense. Id. at 638. An uninfluenced by your power to find a lesser offense. This provision is not designed to relieve you from the performance of a unpleasant duty. It is included to prevent a failure of justice if evidence fails to prove the original charge but does not justify a verdict for the lesser crime. Spicer’s proposed instruction D-11A stated: The Court instructs the Jury that you [sic] verdict should be written on a separate pierce [sic] of paper; need not be signed, and may be in one of the following forms: (1) If you find the Defendant, Freddie Sanford Spicer, Jr., guilty of Capital Murder of Edmond Herbert [sic], the form of your verdict shall be: “We, the Jury, find the Defendant, Freddie Sanford Spicer, Jr., guilty of Capital Murder of Edmond Herbert;” [sic] OR (2) If you find the defendant Freddie Sanford Spicer, Jr., guilty of Murder of Edmond Herbert [sic], the form of your verdict shall be: “We, the Jury, find the Defendant, Freddie Sanford Spicer, Jr., guilty of Murder of Edmond Herbert;” [sic] OR (3) If you find the Defendant, Freddie Sanford Spicer, Jr., not guilty, your verdict shall be in the following form: “We, the Jury, find the Defendant, Freddie Sanford Spicer, Jr., not guilty.” 26 Alabama jury convicted Beck of capital murder for the robbery and murder of an 80 year-old man. Id. at 639. As a defense, Beck asserted that he did not kill the victim or intend the victim’s death, but that instead his accomplice unexpectedly struck and killed the victim. Id. Under the Alabama death penalty statute at that time, the requisite intent to kill could not be supplied by the felony-murder doctrine. Thus, felony-murder could not be a lesser-included offense of the capital crime of intentional killing in the course of a robbery. Alabama law, however, specifically prohibited a trial judge from giving a jury the option of convicting a defendant of a lesser-included offense. The Supreme Court stated: when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense–but leaves some doubt with respect to an element that would justify conviction of a capital offense–the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. Id. at 637. ¶43. This Court’s standard of review for challenges to jury instructions is as follows: The Court does not single out any instruction or take instructions out of context; rather, the instructions are to be read together as a whole. A defendant is entitled to have jury instructions given which present his theory of the case. This entitlement is limited, however, in that the court is allowed to refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Parks v. State, 884 So. 2d 738, 746 (Miss. 2004) (citations omitted). Furthermore, this Court has stated: 27 Even though based on meager evidence and highly unlikely, a defendant is entitled to have every legal defense he asserts to be submitted as a factual issue for determination by the jury under proper instruction of the court. Where a defendant’s proffered instruction has an evidentiary basis, properly states the law, and is the only instruction presenting his theory of the case, refusal to grant it constitutes reversible error. Hester v. State, 602 So. 2d 869, 872 (Miss. 1992) (citations omitted). ¶44. This Court has articulated the following test to determine whether there is an evidentiary basis for a lesser-included offense: Lessor included offense instruction should be granted unless the trial judge–and ultimately this court–can say, taking the evidence in the light most favorable to the accused, and considering all reasonable references which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lessor included offense (and conversely not guilty of at least one element of the principal charge). Agnew v. State, 783 So. 2d 699, 702-03 (Miss. 2001) (quoting Graham v. State, 582 So. 2d 1014, 1017 (Miss. 1991). ¶45. The facts in Beck are distinguishable from the facts of the current case. First, Mississippi courts are not governed by the same capital sentencing law at issue in Beck. Miss. Code Ann. § 99-17-20 states: The judge, in cases where the offense cited in the indictment is punishable by death, may grant an instruction for the state or the defendant which instructs the jury as to their discretion to convict the accused of the commission of an offense not specifically set forth in the indictment returned against the accused. ¶46. Second, Spicer presented no evidence before the trial court or this Court that would warrant a lesser-included offense instruction of murder. The United States Supreme Court stated in a later opinion interpreting Beck: 28 Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. The jury's discretion is thus channeled so that it may convict a defendant of any crime fairly supported by the evidence. Hopper v. Evans, 456 U.S. 605, 611, 102 S. Ct. 2049, 2053, 72 L. Ed. 2d 367 (1982). Spicer presented no evidence that he acted with “deliberate design,” a “depraved heart,” or “in commission of any felony” other than the ones listed under Miss. Code Ann. § 97-3-19(2), the capital murder statute. 21 Spicer’s basis for his argument that there was evidence to “support a verdict of guilt of a non-capital offense” is his continued assertion that he had permission to drive Hebert’s truck. Spicer’s argument is a defense to the charge of capital murder, not evidence of 21 Miss. Code Ann. § 97-3-19(1) states: (1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being; (b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual; (c) When done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnaping, burglary, arson, robbery, sexual battery, unnaturalintercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felonies; (d) When done with deliberate design to effect the death of an unborn child. 29 murder under Miss. Code Ann. § 97-3-19(1). In addition, there is too much probative evidence in the record of the underlying felony of robbery for a reasonable juror to find Spicer guilty of simple murder beyond a reasonable doubt. There is evidence that he stole the sword because he was in possession of it after Hebert’s death and it had Hebert’s blood on it. There is also a lack of evidence that Spicer possessed a spare key to Hebert’s truck. This strongly suggests that he not only stole the keys, but also the truck. Even if the jury believed Spicer had permission to use the truck on previous occasions, it seems unlikely that he had permission here because Hebert was deceased. ¶47. Taking the evidence in a light most favorable to the accused, no reasonable jury could find beyond a reasonable doubt that the defendant was guilty of the lesserincluded offense. We find that the trial court correctly rejected the murder instruction because it was not warranted by the facts of this case. VII. Grant of Jury Instruction S-8 and the State’s Burden of Proving Intent to Commit the Underlying Felony Spicer argues that Jury Instruction 822 misled the jury on the intent necessary for a 22 Both Spicer and the State in their briefs refer to Instruction 8 as “Instruction S-7A.” However, their citations to “Instruction S-7A” correspond with Instruction 8 in the Clerk’s Papers and they quote Instruction 8 as “Instruction S-7A.” 30 for a conviction of capital murder as defined in Miss. Code Ann. § 97-3-19(2)(e).23 According to Spicer, Instruction 8 “not only did not focus the jury’s attention on the issue of intent, but peremptorily instructed the jury that the issue of intent was irrelevant.” Thus, Spicer asserts, Instruction 8 “created an irrebuttable presumption relieving the jury of its responsibility of determining whether Spicer intended to commit robbery at the time of the killing.” ¶48. In support of his argument Spicer cites Jenkins v. State, 607 So. 2d 1171 (Miss. 1992). In Jenkins, the defendant was convicted of capital murder with the underlying felony of robbery. Id. at 1173-74. Jenkins objected to the following jury instruction: The Court instructs the Jury that if a person enters upon the commission of a crime involving danger to human life, such as robbery, said person is criminally accountable for death caused in the common enterprise. It need not be that the design is to commit the particular crime which is subsequently committed, but there must be a preconcerted plan to do some unlawful act. Therefore, if you find from the evidence in this case that all of the elements of Capital Murder, as defined in the Court’s instructions, have been proved beyond a reasonable doubt, you must find the Defendant WILLIAM WAYNE JENKINS, 23 Jury Instruction 8 states: This Court instructs the Jury that in a case of Capital Murder the fact that the victim was dead at the time of taking his property does not mitigate against the conclusion of robbery. If the intervening time between the murder, if any, and the time of the taking of the property, if any, formed a continuous chain of events, the fact that the victim was dead when the property was taken cannot absolve the Defendant from the crime. If you should find from the evidence in this case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence that the Defendant, Freddie Spicer, Jr., killed and murdered Edmond Hebert and then, after the said Edmond Hebert was dead, took his property; and if you should further find beyond a reasonable doubt that the intervening time of the murder, if any, and the time of the taking of the property, if any, formed a continuous chain of events, the fact that Edmond Hebert was dead when the property was taken does not absolve the Defendant from the crime of Capital Murder. 31 guilty of the crime of Capital Murder, even though, at the outset, he may not have intended to do the particular thing constituting the crime. Id. at 1179. Jenkins objected that the instruction was erroneous “because it informed the jury that they could convict [him] of capital murder even if he did not form the intent to rob until the homicide had occurred.” Id. After having earlier in the opinion reversed Jenkins’s conviction due to discovery violations by the State, this Court replied to Jenkins’s assertion that the above jury instruction was given in error: Without a thorough review of the merits of this claim, we note that Instruction S-3 was, at best, confusing to the jury and, at worst, peremptory in nature. S-3 did nothing to focus the jury's attention upon the issue of Jenkins' intent. Consequently, it merely obfuscated the issue and left the jury shrouded by smoke. Upon retrial, we must recommend that S-3 be revised or deleted from the court’s instructions. Id. at 1179-80. ¶49. Spicer is procedurally barred from asserting his seventh allegation of error. At trial, Spicer objected to instruction 8 “on the basis that there is no time of death proven.”24 Spicer did not place before the trial judge the present issue of whether Instruction 8 relieved the State of the burden of proving intent to commit the underlying felony of robbery. This Court cannot find that a trial judge committed reversible error on a matter not brought before him or her to consider. Montgomery v. State, 891 So. 2d 179, 187 (Miss. 2004). “[A]n objection on one 24 Spicer’s attorney’s entire comments regarding the objection were as follows: BY MR. HURT: We object to this instruction on the basis that there is no time of death proven. If you’ll look at the last part of this instruction, it talks about the intervening time and the fact that Edmond Hebert was dead when the property was taken. That was never established by the State. There is no time of death in this case. I think you would agree with me on that one. There is no time of death ever proved in this case. Was there? 32 or more specific grounds constitutes a waiver of all other grounds.” Doss v. State, 709 So. 2d at379 (quoting Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993)). ¶50. Notwithstanding the procedural bar, we find that Spicer’s argument is without merit. “In determining whether error exists in granting or refusing jury instructions, the instructions must be read as a whole; if the instructions fairly announce the law and create no injustice, no reversible error will be found.” Martin v. State, 854 So. 2d 1004, 1009 (Miss. 2003). The trial judge did not instruct the jury that Spicer’s intent was irrelevant nor did he relieve the jury of its responsibility of determining whether Spicer intended to commit robbery at the time of the killing. Instead, the trial judge allowed Instruction 8 which correctly stated the law regarding the continuous chain of events” theory in capital cases and when the underlying felony of robbery could have occurred. See Duplantis v. State, 708 So. 2d 1327, 1343 (Miss. 1998).25 This Court said in West v. State: 25 The instruction at issue in Duplantis stated: The Court instructs the jury that in a case of capital murder the fact that the victim was dead at the time of taking his property does not mitigate against the conclusion of robbery. If the intervening time between the murder, if any, and the time of the taking of the property, if any, formed a continuous chain of events, the fact that the victim was dead when the property was taken cannot absolve the defendant from the crime. If you should find from the evidence in this case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis that the Defendant, David Duplantis, killed and murdered Gary Thrash and then, after the said Gary Thrash was dead, took his property; and if you should further find beyond a reasonable doubt that the intervening time between the time of the murder, if any, and the time of the taking of property, if any, formed a continuous chain of events, the fact that Gary Thrash was dead when the property was taken does not absolve the Defendant from the crime of Capital Murder. 708 So. 2d at 1342-43. 33 [W]e construed our capital murder statute and held that “the underlying crime begins where an indictable attempt is reached . . ..” An indictment charging a killing occurring “while engaged in the commission of” one of the enumerated felonies includes the actions of the defendant leading up to the felony, the attempted felony, and flight from the scene of the felony. The fact that the actual moment of the victim's death preceded consummation of the underlying felony does not vitiate the capital charge. 553 So. 2d 8, 13 (Miss. 1989) (citations omitted). See also Simmons v. State, 805 So. 2d 452, 477-78 (Miss. 2001); Turner v. State, 732 So. 2d 937, 949-50 (Miss. 1999). The trial judge’s instruction in the present case mirrored this Court’s holding in West and other cases. Furthermore, the trial judge’s instruction is almost an exact quote of the instruction upheld by this Court in Duplantis. The instruction cited by Spicer from Jenkins is not similar to the one at issue in the present case, and this Court’s disapproval of the Jenkins instruction is not controlling. We find that Spicer’s seventh assertion of error is without merit.",sufficiency of the evidence
+428,6215900,2,1,"The ward first argues that the evidence was insufficient to support a finding that she is “incapacitated.” “Incapacity” is a legal, not a medical, disability, and refers to “any person who has suffered, is suffering or is likely to suffer substantial harm due to an inability to provide for his [or her] personal 3 needs for food, clothing, shelter, health care or safety or an inability to manage his or her property or financial affairs.” RSA 464-A:2, XI (2018). Incapacity is measured by “functional limitations,” id., that “impair [an individual’s] ability to participate in and perform minimal activities of daily living that secure and maintain proper food, clothing, shelter, health care or safety for himself or herself.” RSA 464-A:2, VII (2018). “Isolated instances of simple negligence or improvidence, lack of resources or any act, occurrence or statement if that act, occurrence or statement is the product of an informed judgment shall not constitute evidence of inability to provide for personal needs or to manage property.” RSA 464-A:2, XI. Because the ward challenges the sufficiency of the evidence, our task is to review the record to determine whether it supports the trial court’s findings beyond a reasonable doubt. In re Guardianship of G.S., 157 N.H. 470, 473-74 (2008). In a sufficiency challenge, “we examine whether the [trial] court’s actual or implicit factual findings on the statutory components required for guardianship are reasonably supported” by the evidence. Id. at 474. However, we defer to the court’s judgment on such issues as resolving conflicts in testimony, measuring the credibility of witnesses, and determining the weight to be given testimony. Id. The ward contends that “there was not proof beyond a reasonable doubt as to [her] incapacity, as NHH did not make a showing of substantial harm due to inability to provide for needs.” See RSA 464-A:2, XI. We disagree. The ward’s psychiatrist opined that the ward is unable “to care for herself with respect to . . . her psychiatric medications, and with respect to medical treatment.” According to the psychiatrist, the ward is unable to weigh “the risks and benefits of proposed treatment” and incapable of making informed decisions regarding her treatment needs. The psychiatrist further testified that NHH evaluated the ward’s “ability to identify dangers in the home,” budget finances, care for her home, and complete activities of daily living, and found that the ward “needed assistance almost across the board.” The psychiatrist opined that, without a guardianship, the ward was “likely [to] suffer substantial harm because she can’t provide for her basic needs.” The psychiatrist noted that, even while at NHH, the ward was unable to care for herself in that she did not shower for 47 days; wore shoes that were three or four sizes too big, falling apart, and held together with tape; and refused to allow staff to assess what appeared to be a fungal infection on her feet. As a result, the psychiatrist expressed concern about the ward’s ability to live independently. She noted that the ward intended to return to the apartment from which she was evicted, although she has refused to agree to pay the $3,000 in back rent that she owes. The psychiatrist opined that “the only safe options for discharge” were for the ward to live independently but with assistance at home, or to live in a group home, or in an assisted living 4 facility. The psychiatrist noted that the ward had “declined all of those options.” The psychiatrist testified that if a guardian were appointed for the ward, then the ward could be discharged from the hospital safely, she could stabilize on her medication, and she might be able to return to independent living. According to the psychiatrist, discharging the ward from the hospital without a guardian would be unsafe. Based upon this record, we conclude that the evidence was sufficient for the trial court to have found, beyond a reasonable doubt, that the ward “is likely to suffer substantial harm due to an inability to provide for [her] personal needs for food, clothing, shelter, health care or safety or an inability to manage . . . her property or financial affairs.” RSA 464-A:2, XI; see In re Guardianship of Peter R., 159 N.H. 562, 563-64 (2009) (ruling that evidence that ward refused to take medication recommended by his psychiatrist, had been involuntarily admitted to NHH for a period of no more than one year with a conditional discharge, and suffered from a psychotic disorder was sufficient to support trial court’s finding of incapacity). The ward next asserts that “[t]here was also insufficient testimony that guardianship was necessary, appropriate, or least restrictive.” Before imposing a guardianship, the trial court must find, beyond a reasonable doubt, that “[t[he guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the proposed ward.” RSA 464-A:9, III(d). “Least restrictive form of intervention” means that the guardianship imposed “represents only those limitations necessary to provide him or her with needed care and rehabilitative services, and that the ward shall enjoy the greatest amount of personal freedom and civil liberties consistent with his or her mental and physical limitations.” RSA 464-A:2, XIV (2018). Contrary to the ward’s conclusory assertion, there is support in the record for the trial court’s finding that guardianship is the least restrictive intervention for the ward. The ward’s treating psychiatrist specifically testified that guardianship is the least restrictive “treatment option right now” in that it is “less restrictive than her remaining in the hospital.” The psychiatrist explained that if a guardian were appointed, NHH “would be able to discharge [the ward] from the hospital” and “be able to stabilize her on the psychiatric medication.” She expressed the hope that “with the right medication,” the ward might be able to return “to independent living, which is what she wants.” This testimony is sufficient to support the trial court’s finding that “[t]he guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the proposed ward.” RSA 464-A:9, III(d). 5",sufficiency of the evidence
+429,1780854,1,3,"The cash deed contract signed by the School Board president sold only a right of way, a servitude, for canal purposes to United Irrigation. No sale of full ownership occurred. For the foregoing reasons, we reverse the judgment of the trial court and court of appeal. We remand this matter to the trial court for determination of whether the canal servitude has terminated for non-use.",conclusion
+430,2570302,1,3,"[¶ 9] We apply a de novo standard of review when evaluating the issuance of a search warrant under Article 1, § 4 of the Wyoming Constitution. Urbigkit v. State, 2003 WY 57, ¶ 9, 67 P.3d 1207, ¶ 9 (Wyo.2003). We have previously stated: Indeed, de novo review is particularly appropriate under these circumstances. The reasons which normally underlie deferring to the district court's denial of a motion to suppress — its ability to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions at the hearing on the motion — are absent when reviewing the sufficiency of an affidavit to support a determination of probable cause. Because art. 1, § 4 requires that all information the issuing officer relied upon to make the determination be included within the affidavit, this court is in essentially the same position as the issuing magistrate. Cordova v. State, 2001 WY 96, ¶ 10, 33 P.3d 142, ¶ 10 (Wyo.2001). [1] [¶ 10] An affidavit presented in support of a search warrant is presumed valid. Page v. State, 2003 WY 23, ¶ 9, 63 P.3d 904, ¶ 9 (Wyo.2003). Search warrant affidavits are tested by a less vigorous standard than those governing the admissibility of evidence at trial. Id. We interpret a search warrant affidavit in its totality in a `commonsense and realistic fashion.' Cordova, ¶ 29. Because of the desire to encourage law enforcement personnel to seek warrants, any doubt should be resolved by sustaining the search. Page, ¶ 9 (citing Hixson v. State, 2001 WY 99, ¶ 6, 33 P.3d 154, ¶ 6 (Wyo.2001)).",standard of review
+431,2617041,1,1,"Shaw presents the following issues for review: 1. Whether evidence of a cohabiting couple's agreement to share in the financial growth of their ten-year association and their conduct in maintaining a stable, mutually beneficial, family relationship requires a jury decision on the ultimate issues of the creation of an express contract or an implied contract. 2. Whether evidence of the parties' agreement to share equally in the control, direction and pecuniary outcome of their rental property enterprise requires a jury decision on the ultimate issue of the creation of a partnership or joint venture. 3. Whether one cohabitor is entitled to recover the reasonable value of her services to the other cohabitor, when she provides such services, in part, in exchange for his commitment to share equally in the financial growth of their association. 4. Whether Wyoming recognizes a claim for just and equitable division of property earned during a long, stable, non-marital, family relationship. 5. Whether a California corporation subjects itself to the personal jurisdiction of Wyoming courts by establishing an office in Wyoming, employing workers in Wyoming, and transacting business in Wyoming. Appellee, Smith, states the issues as follows: 1. To create an express contract, Wyoming law requires, inter alia, (1) consideration and (2) a meeting of the minds. Is there a genuine issue of material fact as to the formation of an express contract between the parties where the terms of the contract are vague and unclear, and the evidence fails to show that the consideration for the contract was bargained for by both parties? 2. For an implied contract to exist proof of the intention of the parties is essential. Is there a genuine issue of material fact with regard to the formation of an implied contract between parties where the conduct of one party does not show an intention to enter into a contractual relationship? 3. Is Appellant entitled to recover the value of household services rendered during the period of the parties' cohabiting relationship where there is no contract between the parties and where the evidence does not reflect that Appellee had reason to know that Appellant expected additional compensation for such services? 4. A partnership or joint venture is formed where the parties (1) have an equal right of control over the venture and (2) agree to share in both the profits and losses of the business endeavor. Is there a genuine issue of fact with regard to the formation of a joint venture where Appellant did not have the right to transfer or convey the investment properties and where Appellant admits that the parties did not agree that they would share in the profits and the losses associated with the investment properties? 5. Should the property acquired by one party during the period of a cohabiting relationship be treated as marital property upon dissolution of the relationship? Appellee, SGN, presents one issue: Whether a corporate officer/shareholder who telecommutes from the forum state may subject a foreign corporation to personal jurisdiction, particularly when the plaintiff's claim arises from the telecommuter's individual activities, as opposed to his corporate activities.",issues
+432,2546272,1,5,[¶13] Grove and Broberg possessed separate and independent causes of action. The district court erred when it found Broberg to be a necessary and indispensable party and required joinder. We reverse and remand to the district court so that Grove may proceed with her claim.,conclusion
+433,1134803,1,1,"The facts of the crimes and the evidence presented in this case are fully recounted in State v. Pirtle, 127 Wash.2d 628, 904 P.2d 245 and will not be revisited except as is necessary to resolve the arguments presented in this personal restraint petition.",facts
+434,2223971,1,5,"Plaintiffs note that the FTC has never adopted a trade regulation rule approving the use of descriptors such as light or low tar, and that the FTC has never stated that the use of such descriptors has been substantiated by any cigarette manufacturer. Further, plaintiffs argue that PMUSA has never claimed to have any proof that its Lights are safer than regular cigarettes. These statements are true, but do not resolve the question whether the FTC has specifically authorized the use of these terms. Plaintiffs also assert that the FTC has, fairly recently and after entering into the consent orders, expressly disavowed any official definitions of the terms. See Cigarette Testing, Request for Public Comment, 62 Fed.Reg. 48,158, 48,163 (September 12, 1997) (There are no official definitions for these terms but they appear to be used by the industry to reflect ranges of FTC tar ratings). It is not clear to this court what the FTC meant by no official definitions, unless it was referring to the absence of a trade regulation rule. The FTC itself certainly uses these terms in its publications and its reports to Congress. Perhaps the FTC's published definitions of these terms in these contexts are considered by the agency to be unofficial. We conclude that the specific authorization required to trigger the exemption of section 10b(1) does not require formal rulemaking or official definitions. See Lanier, 114 Ill.2d at 12-13, 101 Ill.Dec. 852, 499 N.E.2d 440 (finding specific authorization in Federal Reserve Board staff interpretation of the applicable regulation). It is sufficient if the authorization proceeds from regulatory activity, including the resolution of an enforcement action by means of a consent order. The consent order provides express authority for the party that was the target of the enforcement action to engage in the conduct described in the consent order. In addition, a consent order entered into by the FTC with one member of a regulated industry, which is published pursuant to statute, provides implied authority for other members of the regulated industry to engage in the same conduct. It would elevate form over substance to say that the FTC specifically authorized American Brands to use such descriptors so long as certain conditions were met ( American Brands, 79 F.T.C. 255), but did not thereby specifically authorize other members of the industry to act accordingly. Thus, while the authorization given to American Brands was express, the authorization given to the rest of the industry was implied, but no less specific. The necessary degree of specificity is provided by the language of the consent orders and by the FTC's long-standing use, if not formal adoption, of the definition of low tar as meaning 15 milligrams or less of tar per cigarette. Because PMUSA was specifically authorized to use the disputed terms without fear of the FTC challenging them as deceptive or unfair, it is exempt from civil liability under 10b(1) of the Consumer Fraud Act for the use of the terms so long as the other conditions set out in the consent orders were met. We find no evidence in the record that PMUSA failed to use these terms in compliance with the terms of the consent orders. The increased mutagenicity of the smoke delivered by Marlboro Lights and Cambridge Lights cannot be a separate basis for a claim under the Consumer Fraud Act because, even if the terms light and lowered tar and nicotine do convey a message of safety, their use is specifically authorized by the FTC. In addition, any claim of fraud based on PMUSA's failure to disclose increased mutagenicity is barred by this court's long-standing rule against imposing additional disclosure requirements beyond those established by statute or agency regulation. Plaintiffs' claim under the Deceptive Practices Act must also fail. Section 4 of the Deceptive Practices Act exempts from liability conduct in compliance with the orders of a federal agency. 815 ILCS 510/4 (West 2000). Because we have concluded that the 1971 and 1995 consent orders provided specific authorization to all industry members to engage in the conduct permitted by the orders, these orders fall within the scope of section 4, even though PMUSA was not a party to either consent order. See also Mario's Butcher Shop & Food Center, Inc. v. Armour & Co., 574 F.Supp. 653, 655 (N.D.Ill. 1983) (noting parallel between exemption clauses of the Consumer Fraud Act and the Deceptive Practices Act). We have resolved the present case entirely on the basis of state law by construing and applying an exemption clause in a state statute. We do not address PMUSA's arguments that this action is expressly or impliedly preempted by federal law. Operation of section 10b(1) is not dependent on the intent of Congress. Rather, it is dependent on the intent of the Illinois General Assembly to allow regulated entities to engage in commercial conduct that might otherwise be alleged to be fraudulent or deceptive without risk of civil liability, so long as that content is specifically authorized by the regulatory body. Finally, we share the concerns expressed by plaintiffs and their amici about the devastating health effects of smoking and, in particular, the scourge of smoking among young people. We emphasize that because this action is barred by section 10b(1) of the Consumer Fraud Act, it is unnecessary to reach the merits of plaintiffs' claim that PMUSA intentionally deceived the public. Our resolution of the present case is in no way an expression of approval of PMUSA's alleged conduct. Nevertheless, as justices, our role is to apply the law as it exists, not to decide how the law might be improved. We must defer to the policy of the legislature as expressed in the language of the Consumer Fraud Act. Therefore, plaintiffs and others who would seek to alter the conduct of tobacco companies must take their case to the General Assembly, where they might seek amendment of section 10b(1); to the FTC, where they might seek changes in regulations; or to Congress, where they might seek amendments to the Labeling Act. We reverse the judgment of the circuit court and remand with instructions to dismiss pursuant to section 10b(1) of the Consumer Fraud Act. Circuit court judgment reversed; cause remanded with instructions. Chief Justice THOMAS took no part in the consideration or decision of this case.",conclusion
+435,1043887,1,3,"Tennessee Code Annotated section 50-6-103(a) (2008 & Supp. 2012) provides that injuries “arising out of and in the course of employment without regard to fault as a cause of the injury” are compensable under the Workers’ Compensation Law. The phrase “arising out of” means the origin of the incident in terms of causation, while “in the course of” refers to time, place, and circumstance. Phillips v. A & H Const. Co., 134 S.W.3d 145, 150 (Tenn. 2004) (citing McCurry v. Container Corp. of Am., 982 S.W.2d 841, 843 (Tenn. 1998)). It is undisputed that Ms. Vandall was acting in the course of her employment at the time she fell. The dispute in this case, however, is whether Ms. Vandall’s injury arose out of her 4 employment. The trial court concluded that Ms. Vandall’s shoulder injury was compensable because her injury arose out of her employment. We review issues of fact in workers’ compensation cases de novo on the record of the trial court, accompanied by a presumption of correctness of the trial court’s findings. Tenn. Code Ann. § 50-6-225(e)(2). A trial court’s conclusions of law, however, are reviewed de novo on the record with no presumption of correctness. Seiber v. Reeves Logging, 284 S.W.3d 294, 298 (Tenn. 2009). The mere presence of an employee at her place of employment at the time of an injury does not mean that the injury is deemed to have arisen out of the employment. Rogers v. Kroger Co., 832 S.W.2d 538, 541 (Tenn. 1992) (citing Jordan v. United Methodist Urban Ministries, 740 S.W.2d 411, 412 (Tenn. 1987)). Instead, the phrase “arising out of” requires a causal connection between the resulting injury and employment conditions. Wait v. Travelers Indem. Co. of Ill., 240 S.W.3d 220, 227 (Tenn. 2007). If reasonable doubt exists as to whether an injury arose out of employment, it is to be resolved in favor of the employee. Phillips, 134 S.W.3d at 150. However, the plaintiff in a workers’ compensation case has the burden of proving every element of the case by a preponderance of the evidence. Tindall v. Waring Park Ass’n, 725 S.W.2d 935, 937 (Tenn. 1987). Allenbrooke argues that Ms. Vandall has failed to carry her burden of proving the required causal connection between the employment conditions and the injuries she sustained as a result of her fall. In particular, Allenbrooke contends that Ms. Vandall’s injuries resulted from an idiopathic fall and not from any hazard incident to her employment. An “idiopathic fall” occurs “when the fall is caused by a condition of unknown origin.” Dickerson v. Invista Sarl, No. E2006-02144-WC-R3-WC, 2007 WL 4973735, at  (Tenn. Workers’ Comp. Panel Oct. 18, 2007). In Wilhelm v. Krogers, 235 S.W.3d 122 (Tenn. 2007), this Court summarized the principles governing idiopathic falls or conditions. In that case, we reiterated that workers’ compensation benefits are usually not awarded when the employee’s injury is due to an idiopathic condition and not a “‘special hazard’ of the employment.” Wilhelm, 235 S.W.3d at 128 (quoting Sudduth v. Williams, 517 S.W.2d 520, 523 (Tenn. 1974)). An idiopathic injury will be compensable, however, “if an employment hazard causes or exacerbates the injur[y].” Wilhelm, 235 S.W.3d at 128 (quoting Phillips v. A & H Constr. Co., 134 S.W.3d 145, 148 (Tenn. 2004)). A causal link must exist between the employment and the injury for the incident to be considered as arising out of employment. Wilhelm, 235 S.W.3d at 128. Our courts have repeatedly held that an injury that occurs while walking is not compensable unless an employment hazard, such as a puddle of water, exists and causes the injury. Wilhelm, 235 S.W.3d at 128-29 (citing Williams v. Metro. Gov’t of Nashville & Davidson 5 Cnty., No. M2002-03038-WC-R3-CV, 2004 WL 370296, at  (Tenn. Workers’ Comp. Panel March 1, 2004)). Turning to the facts of this case, we must determine whether the evidence preponderates against the trial court’s finding that Ms. Vandall proved that an employment hazard caused her fall. Ms. Vandall testified that she had previously observed substances such as spit, urine, and spilled medications on Allenbrooke’s floors. Ms. Vandall also stated that certain medications could make the floor “sticky” when spilled. In describing her fall, Ms. Vandall stated that the ball of her right foot “stuck” and that her inability to lift her foot interrupted her gait, causing her to fall forward. She further stated that she knew that something on the floor caused her to fall. Although Ms. Vandall conceded that it was “speculation” as to what, if any, substance was on the floor, the trial court accredited Ms. Vandall’s testimony that the fall had occurred as she described and concluded that the hazard was incident to Ms. Vandall’s employment. When credibility and weight to be given to testimony are involved, considerable deference is given to the trial court because the trial judge had the opportunity to observe the witnesses’ demeanor and to hear in-court testimony. Madden v. Holland Grp. of Tenn., Inc., 277 S.W.3d 896, 898 & 900 (Tenn. 2009). Although Allenbrooke’s witnesses testified that they carefully inspected the area where Ms. Vandall had fallen and found no substance on the floor or any irregularity in the floor that might have caused her to fall, the trial court concluded that the nursing staff could have tracked away whatever substance was present on the floor. We must give deference to the trial court’s determination of credibility. The public policy of our Workers’ Compensation Law requires us to resolve any doubts or conflicts in favor of the employee. See Curtis v. Hamilton Block Co., 466 S.W.2d 220, 222 (Tenn. 1971); see also Phillips, 134 S.W.3d at 150. We conclude that the evidence does not preponderate against the trial court’s conclusion that Ms. Vandall sustained a compensable injury arising out of her employment.",analysis
+436,2631111,1,4,"Workman has failed to raise an issue of material fact regarding his allegations that his guilty plea was involuntary or was not actually entered. The district judge properly evaluated Workman's claims for ineffective assistance of counsel under the Strickland test and was not required to give 20-days' notice before summarily dismissing Workman's petition. We affirm the district judge's decision denying Workman's request for counsel and dismissing his petition for post-conviction relief. Chief Justice SCHROEDER, and Justices EISMANN, BURDICK and JONES concur.",conclusion
+437,2633559,1,3,"[¶7] The defense did not object at trial to the expert testimony about which Mr. Bolin now complains in his first two issues. When no objection is made, the plain error standard applies. Plain error occurs when: 1) the incidents alleged as error clearly appear in the record; 2) the party claiming plain error demonstrates that a clear and unequivocal rule of law was violated; and 3) the party demonstrates he has been denied a substantial right resulting in material prejudice. Farmer v. State, 2005 WY 162, ¶ 26, 124 P.3d 699, 709 (Wyo. 2005). Because of the constitutional implications present when a defendant is forced to appear pro se after refusing, either explicitly or implicitly, to accept the services of appointed counsel, we conduct a de novo review of Mr. Bolin's third claim. Trujillo v. State, 2 P.3d 567, 571 (Wyo. 2000). [3]",standard of review
+438,4278454,1,3,"[1,2] A motion for DNA testing is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court’s determination will not be disturbed.8 An appellate court will uphold a trial court’s findings of fact related to a motion for DNA testing unless such findings are clearly erroneous.9",standard of review
+439,901325,1,7,"[¶41.] Which theory applies for the assigning of the liability for payments of the total disability benefits — the apportionment statute or the last injurious exposure rule? [¶42.] Department applied the apportionment statute found at SDCL 62-4-29 and determined that Estes Brothers should be responsible for two-thirds of Kassube's permanent total disability benefits and Triple R for one-third. SDCL 62-4-29 provides: As to an employee who before the accident for which he claims compensation was disabled and drawing compensation under the terms of this title, the compensation for each subsequent injury shall be apportioned according to the proportion of incapacity and disability caused by the respective injuries which he may have suffered. Estes Brothers contends that because Kassube was not receiving compensation at the time of his subsequent injury with Triple R, the apportionment statute is inapplicable and, therefore, the last injurious exposure rule should govern the matter. We find merit in this contention. [¶43.] This Court has previously adopted the last injurious exposure rule. Under that rule, [w]hen a disability develops gradually, or when it comes as the result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation. Enger, 1997 SD 70 at ¶ 12, 565 NW2d at 83. In 1999 that rule was codified at SDCL 62-1-18. The statute provides: If an employee who has previously sustained an injury, or suffers from a preexisting condition, receives a subsequent compensable injury, the current employer shall pay all medical and hospital expenses and compensation provided by this title. The statute requires that there be a subsequent compensable injury in order for liability for expenses and compensation to transfer to a subsequent employer. Whether a subsequent injury is compensable is determined by SDCL 62-1-1(7). [7] We have interpreted the last injurious exposure rule to exclude a mere recurrence of a previous injury but to include an aggravation of a previous injury. See Titus v. Sioux Valley Hosp., 2003 SD 22, ¶ 13, 658 NW2d 388, 390-91. [¶44.] Our prior cases considering an aggravation, however, did not involve a situation where the injured employee had already been drawing disability compensation at the time of the subsequent injury. See generally Titus, 2003 SD 22 at ¶¶ 2-8, 658 NW2d at 389-390; Paulson v. Black Hills Packing Co., 1996 SD 118, ¶¶ 2-5, 554 NW2d 194, 195. Therefore, we have never considered and applied the apportionment statute in a subsequent injury case. In fact, a review of our past cases reveals only one successive injury case where the apportionment statute has been made an issue. See Truck Ins. Exchange, 1997 SD 37, 561 NW2d 674. In that case, the employee's injury was found to be a single continuing injury without any subsequent injury having ever occurred. This Court then rejected apportionment because a continuing injury to the employee's hands did not qualify as a subsequent injury under the apportionment statute. Id. at ¶ 16, 561 NW2d at 677 (quotations and citation omitted). We also noted that according to the plain language of the apportionment statute, it applies only in cases where the employee is drawing compensation before the subsequent injury. Id. [¶45.] As acknowledged in Truck Ins. Exchange, SDCL 62-4-29 provides specific criteria for when apportionment in subsequent injury cases should occur. It requires that the injured employee must be disabled and drawing benefits before the subsequent accident in order for apportionment to apply. We interpret the statute to mean that an employee must be drawing disability benefits before the subsequent injury occurs. This interpretation is natural, and supports the logical purpose of the statute's express prerequisites to apportionment. By requiring the worker to be drawing disability benefits prior to the subsequent injury, the prior percentage of disability will have been determined. Because the prior percentage of disability has already been determined, apportioning liability is a relatively simple task and would not require further litigation over the issue. Any increase to the prior disability is apportioned to the subsequent employer. [¶46.] Therefore, based on the language of the apportionment statute itself, in addition to our prior treatment of subsequent injury cases, we hold that apportionment only applies in situations where there is a subsequent injury, as opposed to a continuing or recurring injury, and the subsequent injury must have occurred while disability benefits were being drawn. In effect, the apportionment statute is an exception to the last injurious exposure rule that is codified at SDCL 62-1-18, and apportionment should only apply if the injured employee was already drawing disability benefits at the time of the subsequent accident. [¶47.] In the present case, Kassube incurred two separate and distinct injuries, each occurring while Kassube was working for different employers with different insurers. In order to determine if apportionment should occur under the circumstances of this subsequent injury, we must determine whether the requirements of SDCL 62-4-29 have been met. The determinative question in this case thus becomes: Was Kassube disabled and drawing compensation before the last accident; i.e. was he drawing disability benefits? A review of the record reveals the answer is no. [¶48.] Kassube had never been deemed disabled at any time prior to the final accident. Likewise, he had never drawn disability compensation at any time prior to the date of the last accident. At the proceedings which occurred after the last accident, Kassube was awarded back medical expenses, but was not awarded disability compensation for any periods prior to the last accident. Thus, Kassube was not actually drawing benefits or adjudicated disabled at the time of the last accident. Further, he has never been adjudicated disabled or awarded disability benefits for any periods prior to the last accident. Although Kassube had filed a petition for hearing to receive payments and benefits for disability from Estes Brother before the final accident, he was never awarded any disability compensation for any time prior to that final injury. [¶49.] For this same reason, the Iowa case cited to by Triple R is distinguishable. See Excel Corp. v. Smithart, 654 NW2d 891 (Iowa 2002). In that case, it was determined that the employee was entitled to disability benefits for the period of time after the first injury but before the second injury. Id. at 895. The court found that even though this determination was made after the second injury had occurred, and thus the employee was not technically drawing benefits at the time of the second injury, the benefits would be applied retroactively; therefore, the court would apply the apportionment statute in the same retroactive manner. Id. at 899. There was not a similar application or award of disability benefits in this case. Since there was no disability compensation awarded retroactively to the time prior to the final injury, the retroactivity principle espoused in Excel is inapplicable. [¶50.] Because Kassube was not disabled and drawing compensation at the time of his final injury, the last injurious exposure rule codified in SDCL 62-1-18 should have been applied in this case. Apportionment is only appropriate where the employee is drawing disability compensation before the time of the subsequent injury. Thus, Department's application of apportionment was an error of law. In this case, Department should have applied the last injurious exposure rule. Department, however, did not even consider the last injurious exposure rule. Therefore, we cannot construe its findings so as to determine how that rule applies under the facts of this case. We reverse the trial court on this issue and remand for an application of the last injurious exposure rule. [¶51.] GILBERTSON, Chief Justice, and ZINTER, Justice, and MILLER, Retired Justice, concur. [¶52.] SRSTKA, Circuit Judge dissenting on Issue Three, infra at ¶ 63. [¶53.] MEIERHENRY, Justice, writing for the majority on Issue Four.",issues
+440,862851,1,1,"¶1. As part of a plea agreement, Luis Vigo Santiago (Santiago) pled guilty to one count of the sale of cocaine and was sentenced to a term of twenty years in prison, with five years suspended. Santiago subsequently filed a motion for post-conviction relief, alleging that he pled guilty only because the State promised him that he would receive a sentence of no greater than seven years in prison. The trial court granted Santiago's motion, vacated his sentence, and set a trial date so that Santiago could be tried on all the counts contained in the indictment. Aggrieved, the State of Mississippi perfected its appeal to this Court. STATEMENT OF THE CASE ¶2. Santiago was indicted by the Wilkinson County grand jury on one count of sale of cocaine within a church zone (Count I) and one count of possession of cocaine with intent to deliver within a church zone (Count II). Santiago agreed to plead guilty to Count I in exchange for which the enhancement portion of Count I (sale within a church zone) was dropped and Count II of the indictment was dismissed. The trial court then sentenced Santiago to serve twenty years in the custody of the Mississippi Department of Corrections, with five of those years suspended. From the time he was arraigned through the time he entered his guilty plea, Santiago has been represented by paid counsel. ¶3. Approximately fourteen months after being sentenced, Santiago moved to set aside his guilty plea and requested a trial on the charges contained in the indictment. Santiago claimed that his guilty plea was based on the district attorney's promise that in exchange for said plea, he would be sentenced to no more than seven years in prison. At a hearing on the motion, the State argued that because of the amount of time which had passed since Santiago was sentenced, his motion to set aside the guilty plea was procedurally inappropriate, and the only relief available to him was through the Mississippi Uniform Post-Conviction Collateral Relief Act (hereinafter UPCRA), pursuant to Section 99-39-1 et. seq of the Mississippi Code. The State did not argue the merits of Santiago's attempt to procure post-conviction relief (PCR). ¶4. The trial court agreed with the State's procedural argument and dismissed Santiago's motion. However, the trial court granted leave for Santiago to file a motion for PCR under the UPCRA. A copy of Santiago's motion to set aside the guilty plea was made, retitled Motion for PCR, and filed with the circuit court. A certificate of service asserts that the State was served with the PCR motion on the same day. The trial court subsequently granted Santiago's PCR motion, vacating his sentence and setting the matter for trial. On appeal, the State claims it received no notice of trial court's order granting PCR and that it had no opportunity to respond to Santiago's motion. The record reveals that the State filed an answer to the PCR motion but that said answer was not filed until two weeks after the trial court vacated Santiago's sentence. In the answer, the State denied having made any representations to Santiago regarding any sentence he might receive upon pleading guilty. The State, aggrieved by the order of the trial court granting PCR, vacating Santiago's sentence, and setting the matter for trial, now appeals to this Court, raising the following issues:",introduction
+441,4271642,3,2,"¶23 Having interpreted the term “public employee,” we now turn to the question of whether sufficient evidence supports the jury’s finding that Holland was a public employee within the meaning of section 18-9-110(1). ¶24 As an initial matter, we note that the People contend that Rediger’s sufficiency claim should be reviewed only for plain error. This issue has divided divisions of our court of appeals, both as to whether a defendant must make a motion for a judgment of acquittal to preserve a sufficiency claim and whether unpreserved sufficiency claims should be reviewed de novo or only for plain error. Compare Rediger, ¶¶ 9–14, 411 P.3d at 910–11, and Lacallo, ¶¶ 4–24, 338 P.3d at 444–49, with People v. McCoy, 2015 COA 76M, ¶¶ 6–36, ___ P.3d ___, and People v. Randell, 2012 COA 108, ¶ 30, 10 297 P.3d 989, 997–98. Indeed, we have granted certiorari to resolve this division split.3 We, however, need not wade into this dispute here because reviewing either de novo or under the form of plain-error review on which the division relied, see Rediger, ¶¶ 12–13, 411 P.3d at 910, leads to the same result, namely, that Rediger’s conviction under section 18-9-110(1) must be reversed. ¶25 Under the division’s view, when analyzing the evidence requires the preliminary interpretation of a statute, the court must first decide whether the error was obvious. Id. at ¶ 12, 411 P.3d at 910. The division indicated that an error of this nature would not be obvious if determining the meaning of the operative statutory terms under then-existing Colorado authority would be difficult. Id. Conversely, the error would be obvious if the statutory language was unambiguous, even if the operative statutory terms had not yet been interpreted and no previous case law would have alerted the trial court to the error. Id. at ¶ 13, 411 P.3d at 910. Applying this analysis to the case before it, the division concluded that the term “public employee” was unambiguous and that Holland was not a public employee. Id. at ¶¶ 16–19, 28–37, 411 P.3d at 911–913. Accordingly, Rediger’s conviction under section 18-9-110(1) could not stand. Id. at ¶ 27, 411 P.3d at 912. ¶26 Here, whether we were to apply the division’s analysis or to review this issue de novo, our analysis is functionally the same and produces the same result. As noted above, we believe that the term “public employee” is unambiguous and means a person 3 See People in Interest of T.B., 2016 COA 151M, ___ P.3d ___, cert. granted, No. 17SC66, 2017 WL 3593888 (Colo. Aug. 21, 2017); McCoy, 2015 COA 76M, cert. granted, No. 15SC1095, 2016 WL 5723893 (Colo. Oct. 3, 2016). 11 who works in the service of a governmental entity under an express or implied contract of hire, under which the governmental entity has the right to control the details of the person’s work performance. In this case, Holland testified, without contradiction, that she was employed by the Academy, the nonprofit school that she also owns, and not by a governmental entity. Moreover, no evidence showed that any governmental entity had the right to control the details of Holland’s work performance. Accordingly, like the division, we conclude that Holland was not a public employee within the meaning of section 18-9-110(1) and that, therefore, sufficient evidence did not support Rediger’s conviction on that count. ¶27 Notwithstanding the foregoing, the People urge us to conclude that Holland was a public employee for purposes of the statute because she was employed not only by the Academy but also, effectively, by the various governmental entities that accredit, license, monitor, audit, and inspect the Academy, including the Colorado Department of Education, the Colorado Department of Human Services, and the Colorado Department of Health. For three reasons, we are unpersuaded. ¶28 First, regulatory activities like those on which the People rely do not suffice to create an employment relationship at common law, and the People cite no applicable law to the contrary. In an ordinary employment relationship, an employer must possess the right to control the details of its employee’s performance. Norton, 949 P.2d at 567. Here, although governmental entities may have had the authority to “check” the Academy’s curriculum, to perform unannounced audits, and to send students for placement in the school (subject to the Academy’s right to refuse those students), they 12 were not involved in the Academy’s daily operations and did not control the details of Holland’s or any other Academy employee’s performance. Id. at 568 (concluding that the director of a county department of social services was not a state employee because the director served under the supervision of the county board and although the board “operate[d] within the regulatory framework established by the State, the State [was] not involved in [its] daily operations”); see also Logue v. United States, 412 U.S. 521, 530 (1973) (concluding that federal regulations requiring county jail employees to abide by specific standards of treatment for federal prisoners did not render the county employees employees of a federal agency; although the federal government retained the right to inspect the county jail at reasonable hours, it did not have the authority to supervise the conduct of the jail’s employees). ¶29 Second, the People point to no one governmental entity that they deem to be Holland’s employer. Instead, they rely on the piecemeal involvement of various governmental entities to cast Holland as a generalized “public employee.” The People cite no applicable law supporting such a notion of an employee, and we have seen none. ¶30 Finally, in our view, the People’s definition is overbroad because it would deem virtually all employees of regulated employers to be “public employees,” contrary both to our precedents and to the common understanding of the distinction between public, governmental entities and private, regulated entities. See Colo. Ass’n of Pub. Emps., 804 P.2d at 143 (“Private nonprofit corporations are corporations formed by private individuals for a public purpose . . . . In contrast, public corporations are created as 13 subdivisions of the state as an expedient device to carry out the functions of government.”); cf. Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 273 (2011) (Roberts, C.J., dissenting) (“[P]rivate entities are different from public ones: They are private.”); Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) (“The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State . . . . Nor does the fact that the regulation is extensive and detailed.”) (citation omitted). ¶31 For these reasons, we agree with the division that sufficient evidence did not support a finding that Holland was a “public employee.” Accordingly, like the division, we conclude that Rediger’s conviction under section 18-9-110(1) cannot stand.",sufficiency of the evidence
+442,2326824,1,2,"Ms. Vilche has moved this court to dismiss DOES's petition for lack of jurisdiction. She asserts that the petition for review is ineffective because it was filed prematurely on January 11, 2005, after DOES had moved for reconsideration on December 20, 2004. As a general matter, this court has jurisdiction to review only agency orders or decisions that are final, Warner v. District of Columbia Dep't of Employment Servs., 587 A.2d 1091, 1093 (D.C.1991); see D.C.Code §§ 2-510 and 11-722 (2001), and OAH Rules provide that when a motion for reconsideration is timely filed, the previous order shall not be deemed final for purposes of judicial review until the motion is ruled upon by [the ALJ] or is denied. 1 DCMR § 2832.3 (2004). The motion for reconsideration was denied on January 19, 2005, only days after DOES filed its petition to this court. DOES did not file a new petition for review on or after January 19. Ms. Vilche relies on two cases to support her contention that DOES was obliged to file a separate petition for review after the January 19, 2005, decision. Natural Motion by Sandra, Inc. v. District of Columbia Commission on Human Rights, 726 A.2d 194, 197 (D.C.1999), recognized that an agency decision is not final for purpose of appeal to this court until all motions for reconsideration have been acted upon by the agency. However, this court held in Natural Motion that the Commission on Human Rights properly had considered a fee petition that was filed before the pending motions for reconsideration were denied. Id. Natural Motion clearly did not overrule a previous decision where we exercised jurisdiction although the petition had been filed before a motion for reconsideration had been denied. See Kenmore Joint Venture v. District of Columbia Board of Zoning Adjustment, 391 A.2d 269, 274 (D.C.1978) ([C]onsiderations of finality do not require us to withhold our jurisdiction to review [an] administrative order, where, as here, the Motion for Reconsideration was ultimately denied. . . .); see also Robinson v. Howard Univ., 455 A.2d 1363, 1365-66 n. 1 (D.C. 1983) (although notice of appeal in civil case had been filed prematurely, this court exercised jurisdiction where order had become final by the time the appeal was submitted to the panel). DOES's petition for review may have been filed prematurely, but it became effective when the ALJ denied the motion for reconsideration on January 19. Ms. Vilche principally relies upon TeleSTAR, Inc., v. Federal Communications Commission, 281 U.S.App.D.C. 119, 121, 888 F.2d 132, 134 (1989), which held that the filing of a challenge to agency action before the agency has issued its decision on reconsideration is incurably premature and that the challenging party must file a new notice of appeal or petition for review from the now-final agency order. In other words, a prematurely-filed petition does not ripen. . . . Id. Interestingly, however, the court gave this rule only prospective effect, denied the motion to dismiss, and permitted consideration of the originally-premature petition for review. Id. TeleSTAR clearly supports Ms. Vilche's position, but we are not bound by this decision of the United States Court of Appeals rendered after February 1, 1971. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971). On the other hand, we are bound by the decision in Kenmore, which was decided by another division of this court. Id. We likely would have dismissed the petition if the jurisdictional issue had been brought to our attention while the motion for reconsideration was still pending. See Carter v. Cathedral Ave. Coop., Inc., 532 A.2d 681, 683 (D.C.1987). At this stage, [however,] the order from which review is sought is clearly final. Petitioner's intent to appeal was made manifest and the respondent can show no prejudice resulting from any prematurity of the petition. Kenmore Joint Venture, 391 A.2d at 274. We have jurisdiction to consider the petition for review and now turn to the merits.",jurisdiction
+443,2073792,1,3,"Stwalley argues that the evidence is insufficient to establish penetration. When reviewing the sufficiency of the evidence, this Court will not reweigh the evidence nor judge the credibility of witnesses. We will look to the evidence and reasonable inferences therefrom which support the verdict. The conviction will be affirmed if there is evidence of probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Coleman v. State (1986), Ind., 490 N.E.2d 325. The victim's direct and explicit testimony concerning penetration is sufficient as a matter of law. Dobrzykowski v. State (1978), 269 Ind. 604, 382 N.E.2d 170. Referring to anatomical diagrams, the victim testified that sexual intercourse occurs when the male puts his private part inside of the girl's private parts. When the prosecutor asked if that had happened to her, she responded affirmatively. She later testified that she felt Stwalley's penis inside of her. The evidence of penetration was sufficient.",sufficiency of the evidence
+444,1935363,1,8,"Finally, appellants allege that SDCL 7-17-1 is unconstitutional because it has consolidated the two counties without the consent of the residents therein. Article IX, Section 1 of the South Dakota Constitution provides in part: The Legislature shall have plenary powers to organize and classify units of local government, except that any proposed change in county boundaries shall be submitted to the voters of each affected county at an election and be approved by a majority of those voting thereon in each county. There is no evidence in the record that any change in county boundaries has taken place in this case. Rather appellants argue that the combined effect of the Little Thunder decision, supra, and SDCL 7-17-1 merged Tripp and Todd Counties in contravention of the consolidation procedures provided in SDCL 7-2. They cite no authority in support of this contention, and we do not agree that the counties have been consolidated. Consolidation comprehends the `combination into one unit' and therefore, `to consolidate means something more than rearrange or redivide.' Independent District of Fairview v. Durland, 45 Iowa 53, 56 (1876). Tripp and Todd Counties have not been combined into one unit. Each county has a separate budget. Tripp County officials keep separate accounts for the two counties. Taxes collected from the two counties are segregated. Todd County has its own highway department and Food Stamp Program. This separation of government functions is the nature of the attachment, not consolidation, as the legislature structured it, and these counties have stayed within the guidelines. Indeed all of the statutory attachment provisions were followed prior to the decision of Little Thunder, supra, and there has been no evidence of change since that decision. The right to participate in county elections does not work a consolidation of the two counties. They are still two separate units which are merely attached for administrative purposes. In Williams v. Book, 75 S.D. 173, 61 N.W.2d 290 (1953), this court stated that in the absence of constitutional limitations, legislative power over counties is plenary and supreme. As discussed earlier, the legislature had the power to attach Todd County to Tripp County in the manner prescribed by the statutes. It provided a separate method for counties to consolidate. The consolidation statutes provide that in order for consolidation of two counties to take place the electors of the counties must petition the board of county commissioners to hold an election to determine the question of consolidation. SDCL 7-2-1. A majority of all votes cast at such election must be in favor of such consolidation for it to take place. SDCL 7-2-3. There can be no consolidation until there is an election. In this case no such election was held. The duly constituted officials have been acting within the powers given them by law, following the guidelines of the statutory attachment scheme. Even if the county officials had engaged in ultra vires activities, the remedy would not be to sever the two counties. The remedy would be against the officials for exceeding their authority. The Little Thunder decision, supra, has not added to or taken away from the powers of the county officials; it has merely served to define who the duly constituted officials are. We conclude, therefore, that SDCL 7-17-1 is not unconstitutional as having consolidated two counties without the consent of the residents therein.",issues
+445,889802,1,2,"¶ 18 The party seeking to set aside an entry of default bears the burden of proof. Engelsberger v. Lake Co., 2007 MT 211, ¶ 8, 339 Mont. 22, 167 P.3d 902. When a trial court grants a motion to set aside a default, the court's ruling will only be set aside upon a showing of manifest abuse of discretion. Id. A trial court's denial of a motion to set aside a default will be reviewed according to a slight abuse of discretion standard. Id. We review for correctness a district court's conclusions of law pertaining to the recovery of attorney fees. Chase v. Bearpaw Ranch Assn., 2006 MT 67, ¶ 14, 331 Mont. 421, 133 P.3d 190.",standard of review
+446,883553,1,1,"George raises the following issues on appeal: 1. Did the District Court err in finding that Deanna made a greater contribution in acquiring the marital assets? 2. Did the District Court err in requiring George to pay Deanna for lost rental income that could have been realized during their period of separation? 3. Did the District Court err in allowing Deanna to recover post-separation payments while not allowing George to do the same? 4. Did the District Court err in using different property values between its findings of fact and its conclusions of law? 5. Did the District Court err in awarding the family home to Deanna, rather than ordering its sale in an escalating market? 6. Did the District Court err in excluding Deanna's royalty receipts from the marital estate? 7. Did the District Court err in its distribution of George's pension benefits? We have reviewed the record and have considered the arguments and the authorities cited. We conclude that substantial evidence supports the District Court's findings of fact and conclusions of law with respect to issues 1, 3, 5, and 6, and accordingly, we decline to address these further. Issues 2, 4, and 7 require further consideration, however. I. Did the District Court err in requiring George to pay Deanna for lost rental income that could have been realized during their period of separation? 2 II. Did the District Court err in using different property values between its findings of fact and its conclusions of law? III. Did the District Court err in its distribution of George's pension benefits?",issues
+447,862869,1,1,"¶5. On review of a decision for a directed verdict, the Supreme Court must consider the evidence in the same light as the trial court. Fulton v. Robinson Indus., Inc., 664 So. 2d 170, 172 (Miss. 1995). Thus, this Court must review the circuit court's decision de novo. Id. When a party moves for a directed verdict, the trial court must look, solely to the testimony on behalf of the opposing party; if such testimony, along with all reasonable inferences which can be drawn therefrom, could support a verdict for that party, the case should not be taken from the jury. Biloxi Reg'l Med. Ctr. v. David, 555 So. 2d 53, 57 (Miss. 1989). However, when a motion for directed verdict is made and granted at the close of the plaintiff's case-in-chief, such is proper if the plaintiff's evidence is so lacking that reasonable jurors would be unable to reach a verdict in favor of that party. Fulton, 664 So. 2d at 172.",standard of review
+448,2141149,1,8,"
+The first general statutory provision for claims against the State related to the operation of the Erie Canal (L 1817, ch 262). Through many statutory permutations, the modern Court of Claims was constituted in 1915 (L 1915, chs 1, 100). Its essential jurisdiction prescribed that  [i]n no case shall any liability be implied against the state , and no award shall be made on any claim against the state except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity (Code Civ Pro § 264 [emphasis added]). In Smith v State of New York (227 N.Y. 405), this Court held that the State had not waived its sovereign immunity except as expressly surrendered and, thus, preserved the unrelinquished sovereign immunity of the State ( id. , at 409-410). The operative construction canon is that [s]tatutes in derogation of the sovereignty of a state must be strictly construed and a waiver of immunity from liability must be clearly expressed .    In the absence of a legislative enactment specifically waiving this immunity, the state cannot be subjected to a liability therefor ( Smith v State , supra , at 410 [emphasis added]). The majority now ordains a new canon, using a judicial inference method not to fill a natural or legislative interstice, but to discover a vaguely unexplored universe of extensive tort exposure against the State, triable in a court of limited jurisdiction.
+The history of the exclusive legislative authority with respect to the investiture of jurisdiction in the Court of Claims is plainly expressed in New York Constitution, article VI, § 9 (originally added in 1925 as art VI, § 23). It states that [t]he court shall have jurisdiction to hear and determine claims against the state or by the state against the claimant or between conflicting claimants as the legislature may provide  (NY Const, art VI, § 9 [emphasis added]; see , Court of Claims Act § 9). Court of Claims Act § 9 (2) precisely lists the subject-matter jurisdiction in words and structure that indicate a careful consideration by the Legislature of the categories and circumscriptions of claims to which the State's waiver of immunity would also apply. This Court, interpreting the State's statutory post- Smith waiver of immunity (L 1929, ch 467), noted that [i]t includes only claims which appear to the judicial mind and conscience to be such as the Legislature may declare    the State should satisfy ( Jackson v State of New York , 261 N.Y. 134, 138, rearg denied 261 N.Y. 637 [emphasis added]). The legislative history accompanying recodification of the Court of Claims Act shows no intention, understanding or contemplation to sweep the State's assumption of liability into uncharted and open waters as are at issue in this case ( see , Bill Jacket, L 1939, ch 860, Mem of James Barrett, Presiding Judge of the Ct Cl, at 2; Mem of Senator Feinberg, at 2-3). Section 9 of the Court of Claims Act provides, [t]he court shall have jurisdiction    2. To hear and determine a claim of any person, corporation or municipality against the state    for the torts of its officers or employees while acting as such officers or employees, providing the claimant complies with the limitations of this article ( id. [emphasis added]). Correspondingly, the State's waiver of sovereign immunity is contained in section 8 of the Act, which provides: The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations  (Court of Claims Act § 8 [emphasis added]). It is the interplay and application of the various constitutional and legislative declarations, with their evident and express limitations that ought to govern this controversy, not speculative attributions of implied and assumed legislative intent. The plaintiffs' predicate argument is that the Legislature, through its use of the word torts, implied an all-encompassing corral of wrongs. For starters and contrary to this theory, traditional tort law is not an undefinable, limitless arena of wrongs. Rather, the word of art reflects [t]he civil action for a tort    is commenced and maintained by the injured person, and its primary purpose is to compensate for the damage suffered, at the expense of the wrongdoer  (Prosser and Keeton, Torts § 2, at 7 [5th ed]). Professor Prosser also notes the realistic and sensible limitation that [i]t does not lie within the power of any judicial system to remedy all human wrongs (Prosser, op. cit. , § 4, at 23). Indeed, the word tort, for subject-matter jurisdictional purposes, should be viewed and determined discretely within that universe and context. A core feature of the defendant State's more nuanced argument, moreover, is not that the word tort is frozen like a fossil in time as of the original enactment of Court of Claims' jurisdiction. That is a strawman argument posed to overcome the cogent State position on virtually all points and authorities. Indeed, the focus in this statutory construction exercise should remain fixed on the proposition that the term tort, for these jurisdictional purposes, pertains only to those claims reasonably understood by the enactors, as part of the common-law tradition, developed within the tort root rubric and jurisprudence ( see, e.g. , Bovsun v Sanperi , 61 N.Y.2d 219; Battalla v State of New York , 24 N.Y.2d 980, affg 26 AD2d 203). The State's argument should prevail by a reasonable interpretation of the governing statute, the history of its enactment, and this Court's restrained interpretation of it and its own powers in this regard. A transformative redefinition and expansion into a fundamentally different juridical genre gives the holding of the instant case breadth-taking dimensions. Moreover, that approach ignores the well-established discipline that subject-matter jurisdiction, groundbreaking new remedies and their policy and practical ramifications, are matters appropriately within the legislative purview and, thus, not within some generalized supervisory or inferential adjudicative role of the courts ( see generally , Gershman, Supervisory Power of the New York Courts , 14 Pace L Rev 41 [1994]). This Court, following the general canon that any waiver of immunity by the State is to be narrowly construed, has further noted that the waiver of immunity (8) and grant of jurisdiction (9) are not absolute and open-ended ( Weiss v Fote , 7 N.Y.2d 579, 585-587). Relevant and analogous precedents illustratively point out that the State waived that immunity which it had enjoyed solely by reason of its sovereign character, but that the State retained its immunity for those governmental actions requiring expert judgment or the exercise of discretion ( Arteaga v State of New York , 72 N.Y.2d 212, 215-216; see , Tarter v State of New York , 68 N.Y.2d 511, 518-519). Significantly, in Sharapata v Town of Islip (56 N.Y.2d 332), this Court emphasized that it  is hard to believe that any attempt to include punitive damages [in Court of Claims Act § 8] would not have induced lively legislative debate , contemporary State history preceding the formulation of section 8 gives no indication that the matter ever evoked any legislative interest ( id. , at 337 [emphasis added]). The Court stated that: [T]he twin justifications for punitive damages — punishment and deterrence — are hardly advanced when applied to a governmental unit. As [then] Justice TITONE realistically put it in his opinion below, it would be anomalous to have `the persons who bear the burden of punishment, i.e., the taxpayers and citizens,' constitute `the self-same group who are expected to benefit from the public example which the granting of such damages supposedly makes of the wrongdoer' ( Sharapata v Town of Islip , supra , 56 NY2d, at 338-339, affg 82 AD2d 350). The holding of the instant case disregards the usefulness garnered from the parallel purposes and pertinent guidance reflected in the analysis of the punitive damages issue in respect to the constitutional tort species (majority opn, at 178, 192). In Steitz v City of Beacon (295 N.Y. 51), this Court, in interpreting the application of Court of Claims Act § 8 to municipalities, noted that [a]n intention to impose upon the city the crushing burden of such [liability] should not be imputed to the Legislature in the absence of language clearly designed to have that effect  ( id. , at 55 [emphasis added]). Yet, that is precisely what the stretched and attenuated analysis does in the instant case ( see , Weiss v Fote , 7 N.Y.2d 579, 586-587, supra ). It is, after all, the unique governmental police power that is involved here, not some ordinary form of individual or corporate tortious act. For that reason, among others, the claims asserted in this case are nowhere near sufficiently similar (majority opn, at 183) to traditionally recognized individual or corporate tort conduct, the limiting and qualifying phrase of the statute itself. The refined interpretation previously accorded to the State's waiver of immunity is also reflected in the handling of torts involving members of the State militia. In Goldstein v State of New York (281 N.Y. 396), the Court noted that if the word `officers' is given its broad meaning it would include every officer engaged in performing a duty placed upon him by law, including the Governor, judges, members of the Legislature and all others occupying an official position in the State. Such an interpretation of the statute would lead to an absurd conclusion  ( id. , at 405 [emphasis added]). The claim was dismissed because the State militia were not within the meaning of the State's waiver of sovereign immunity ( id. , at 406; see also , Newiadony v State of New York , 276 App Div 59). In 1953, the Legislature amended the Court of Claims Act (L 1953, ch 343) adding section 8-a by which the State waived its immunity for such torts. Notably, the Legislature — not the courts — expressly expanded this jurisdictional reach into that category, as it also did after Smith ( see , Jackson v State of New York , 261 N.Y. 134, 138, supra ). The Legislature does not leave these substantial definitional duties and demarcations to chance, implication, the fertile inferential method or to other entities, because definiteness and distribution of powers are important societal and jurisprudential values. It knows well how to be very plain about such matters in fulfilling its up-to-now distinctive responsibility. The Legislature has never contemplated the common-law word tort to include the kind of extensive constitutional domain advanced here because, not only did it not exist until recently, but also had the notion occurred or been presented to that legislative body, the policy debates would surely and necessarily have been lively indeed ( Sharapata v Town of Islip , 56 N.Y.2d 332, 337, supra ). When the Legislature enacted section 12 (1) of the Court of Claims Act — In no case shall any liability be implied against the state (emphasis added) — it could not have contemplated this kind of substantial judicial exertion, promulgating new substantive remedies.",jurisdiction
+449,2812181,1,2,"As a general proposition, we review a district court’s discovery ruling for abuse of discretion. Mediacom Iowa L.L.C. v. Inc. City of Spencer, 682 N.W.2d 62, 66 (Iowa 2004). A district court abuses its discretion “when the grounds underlying a district court order are clearly untenable or unreasonable.” Id. “ ‘ “A ground or reason is untenable . . . when it is based on an erroneous application of the law.” ’ ” Office of Citizens’ Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 14 (Iowa 2012) (quoting In re Gianforte, 773 N.W.2d 540, 544 (Iowa 2009)). In the context of trade-secret litigation, from the beginning, the cases have stressed the role of the district court judge in balancing the interests of the parties when determining the circumstances of disclosure. Justice Oliver Wendell Holmes in one of the leading early trade-secret cases emphasized that “it will rest in the judge’s discretion to determine whether, to whom, and under what precautions, the revelation should be made.” E.I. du Pont de Nemours Powder Co. v. Masland, 244 U.S. 100, 103, 37 S. Ct. 575, 576, 61 L. Ed. 1016, 1019 (1917); see also Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 326 (10th Cir. 1981). More recently, it has been said that the nature of disclosure in a trade-secret case “ ‘is singularly within the discretion of the district court,’ ” Dove v. Atl. Capital Corp., 963 F.2d 15, 13 19 (2d Cir. 1992) (quoting Galella v. Onassis, 487 F.2d 986, 997 (2d Cir. 1973)), and that “[t]he unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders,” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S. Ct. 2199, 2209, 81 L. Ed. 2d 17, 29 (1984). According to authorities, the balancing of competing rights of the parties poses “a very difficult decision,” see Peter F. Daniel, Protecting Trade Secrets from Discovery, 30 Tort & Ins. L.J. 1033, 1042 (1995), that requires “liberal discretion” in the hands of the trial judge, see Robert A. Matthews Jr., 6 Annotated Patent Digest § 41:120, at 41-258 (2008).",standard of review
+450,2061926,1,1,"The evidence most favorable to the State disclosed that during the evening hours of September 9, 1977, the defendant attended a beer drinking party on Pershing Street in South Bend. When the beer ran out at the party, he left, along with Donna Cox and Denny Kroll, stopping at various places to buy alcohol. Sometime after midnight the defendant and Ms. Cox drove past the scene of a second party at the request of Ms. Cox. The defendant was hesitant about stopping at the party, as he did not want to encounter Robert Crawford, the decedent's brother, who Ms. Cox knew would be there. Crawford had previously fought with one of the defendant's friends. Despite the defendant's reservations, they decided to stop at the party. The defendant and Crawford became involved in a conversation, during which time the decedent, Crawford's brother, approached the two, asked the defendant why he was hassling Crawford and hit the defendant in the mouth. The defendant stumbled backward, said something to the effect that he was going to kill the decedent, drew a sawed off shotgun that had been concealed in his boot and shot the decedent once, fatally wounding him. He then turned to Crawford and stated that he was going to kill him too, at which point Crawford turned and ran. The defendant testified at trial that the decedent had aimed a dark colored gun at him prior to the shooting, however, Crawford and Ms. Cox, both witnesses to the shooting, testified that the decedent was unarmed. The defendant does not espouse the theory of self defense on appeal, as he concedes that the jury could properly have found from the evidence that he was not acting in self defense when he shot the decedent. Rather, he contends that there was insufficient proof that he acted with purpose and malice, inasmuch as the State failed to exclude the hypothesis that he was reacting out of fear and anger, having had no time to coolly reflect upon what he was about to do. As authority for his position, the defendant relies solely on Shutt v. State, (1977) Ind., 367 N.E.2d 1376. At the outset we must first note that, as in any sufficiency determination, we will neither reweigh the evidence nor will we judge the credibility of the witnesses. Beasley v. State, (1977) Ind., 370 N.E.2d 360. We will look only to that evidence most favorable to the State along with all reasonable inferences to be drawn therefrom, to determine whether such evidence and inferences would permit a reasonable trier of fact to find the existence of each of the essential elements of the crime charged beyond a reasonable doubt. If so, the verdict will not be disturbed. Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831. The facts in Shutt are readily distinguishable from those in the case at bar. There, we found that the inference of malice, which arose only from the defendant's use of a deadly weapon, was rebutted by unrefuted evidence to the contrary. In the instant case, there is a marked absence of the provocative circumstances present in the Shutt case, and some inference of malice arose from circumstances other than the use of the weapon. There had been no prior threats of physical harm directed towards the defendant nor had there been any acts other than the assault immediately preceding the shooting, upon which to base a finding of provocation sufficient to give rise to an impassioned mind incapable of cool reflection. On the contrary, the defendant went to the party armed, anticipating the possibility of a fight. After the initial assault, the defendant paused for a moment and stated that he was going to kill the decedent before firing the fatal shot. Much of the evidence tends to support the inference that the defendant acted with purpose and malice.",issues
+451,2737463,1,2,"Summary judgment is proper if there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. 'The standard of review applicable to a summary judgment is the same as the standard for granting the motion....' '... The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the 7 1130440 nonmoving party must present substantial evidence creating a genuine issue of material fact--evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d 933, 935 (Ala. 2006)(quoting Capital Alliance Ins. Co. v. ThoroughClean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994))(internal citations omitted). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004).",standard of review
+452,2590366,1,7,"Respondent has taken and subscribed the oath of admission, was admitted to the bar of this Colorado Supreme Court on October 18, 1961, and is registered upon the official records, Attorney Registration No. 04324. Therefore, he is subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b). Respondent's registered business address is 2993 Broadmoor Valley Road, Suite 204, Colorado Springs, Colorado 80906.",jurisdiction
+453,6497670,1,3,"¶14 Whitaker argues that the circuit court relied on an improper sentencing factor——thereby violating his constitutional rights——when it: (1) repeatedly referenced Whitaker's childhood Amish community; and (2) stated its intent to deter others within that community from failing to report or stop ongoing sexual assaults. Whitaker's exact constitutional claims are somewhat nebulous, but they appear to boil down to freedom of association and the free exercise of religion. As to the former, Whitaker argues that when the circuit court said it hoped the sentence would send a message to members of the Amish community, the court improperly based the sentence on his protected association with that community. As for the latter, Whitaker argues that when the court encouraged his childhood Amish community to report sexual assaults to the secular authorities, contrary to the community's practice of avoiding outside societal influence, the circuit court violated his right to free religious exercise. Because this case can be decided on Thus, depending on how a court looks at it, a reasonable nexus to a proper and relevant sentencing factor either: (1) renders the challenged factor proper because it is inextricably intertwined with a relevant and proper factor; or (2) indicates that the court was actually relying on the related relevant and proper factor and not solely relying on the challenged factor. Either way, the analysis is equivalent. An appellate court affirms the sentence if the challenged factor is relevant to proper sentencing considerations rather than a stand-alone factor untethered to the underlying criminal conduct. In this case, we continue to follow this court's more recent guidance and apply the reasonable nexus test under the actual-reliance prong. 10 No. 2020AP29-CR narrower grounds, as a prudential matter we assume without deciding that any consideration of Whitaker's childhood Amish community was improper.7 That said, we hold that Whitaker fails to prove by clear and convincing evidence that the assumed improper factor was the sole cause of a harsher sentence because it bears a reasonable nexus to relevant and proper sentencing factors. ¶15 We begin with the context in which the circuit court made the challenged comments. Whitaker pled to only one count of sexual assault of a minor despite confessing to hundreds more and received two years of initial confinement.8 In addressing the egregious facts of this case, and at the behest of the defendant,9 the circuit court repeatedly considered the enabling behavior of the elder members of Whitaker's childhood community. The sentencing court stated that the relevant Galleon [sic] factors are punishment, and also deterrence of others, hopefully 7See Md. Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 (Typically, an appellate court should decide cases on the narrowest possible grounds.). 8Under Wis. Stat. § 973.01(2)(b)1. and (2)(d)1., a Class B felony carries a maximum sentence of 40 years initial confinement and 20 years of extended supervision. 9Whitaker asked the circuit court to consider how his upbringing affected his socialization as a mitigating factor. Specifically, Whitaker blamed his upbringing for limiting his sexual education, isolating him from resources, and contributing to a skewed view of adolescent development. He also said that it was important to note that there were adults who were aware of this conduct when it was happening . . . and it was recommended that the allegations remain within the community. 11 No. 2020AP29-CR deterrence of others in the Amish community. It repeated, I'm hoping that this sentence deters, as I said, the community, and continued, a prison sentence is the only way to send the message to Mr. Whitaker and to the community that this is totally unacceptable behavior. . . . And I hope that the elders in the community pay attention to this. ¶16 Whitaker argues that these references to his childhood Amish community lack congruity to his offense and therefore lack a sufficient nexus to relevant and proper sentencing objectives. We disagree. Read in context, the circuit court's efforts to encourage Whitaker's childhood community to report child sexual assaults wholly relate to relevant criminal conduct, both generally and specifically. The circuit court was not addressing a failure to report a one-off crime after the fact; the community elders knew the assaults were ongoing. Their failure to meaningfully intervene directly enabled Whitaker to commit hundreds of additional assaults on his sisters and greatly compounded their harm. As the circuit court stated, it is insufficient to address these crimes internally in the community when it is not a one-time thing and . . . the women, the daughters, the wives in the Amish community are not empowered to come forward. ¶17 This reasoning touches on valid considerations of general deterrence and protection of the public. We have long accepted that general deterrence is an appropriate sentencing consideration. See Gallion, 270 Wis. 2d 535, ¶61. Here, the sentencing court expressed its desire to generally deter others, 12 No. 2020AP29-CR specifically others in Whitaker's childhood community, from both committing sexual assaults and refusing to protect victims in the community from sexual violence. This sentiment was directed at the community members to encourage them to meaningfully intervene by reporting sexual abuse and holding abusers accountable rather than continuing to ignore or conceal the abuse. Should the community protect victims and hold abusers to account, future potential abusers are likely to be deterred from engaging in this type of abusive conduct. In other words, the community's meaningful intervention directly relates to the sentencing goal of deterring similar crimes. ¶18 Here, general deterrence logically ties in with a second sentencing goal: public protection. Much like the goal of deterrence, public protection can be applied both to the individual defendant specifically and to the larger community generally. This means the court may consider: (1) the need to protect the public from the individual defendant; (2) the need to protect the public from those like the defendant; or (3) both. See Id., ¶61 (the court properly took into account the need to protect the public from Gallion and others like him). As with deterrence, the circuit court in this case was focused on public protection in the general sense. As noted above, deterring sexual assault through effective community intervention protects victims. As this case exemplifies, victims of sexual abuse are often powerless to protect themselves. And in this case the victims' powerlessness was compounded when the family and community elders did little to 13 No. 2020AP29-CR protect A.B., C.D., and E.F. from Whitaker's unrelenting abuse even after learning of the ongoing assaults. The three victims were left completely defenseless. The circuit court recognized that the victims' protection was dependent on help from the community and encouraged community members to hold offenders like Whitaker to account. In doing so, the circuit court sought to protect victims from further trauma and abuse. The circuit court acted within its discretion to address this failure of protection in hopes of both preventing others from engaging in similar abuse and protecting potential victims in that community from similar conduct.10 ¶19 For the sake of completeness, we understand the remainder of the court's discussion to be addressing the offenses' seriousness, the effects on the victims, and the need for punishment. The circuit court repeatedly referenced these valid considerations, stating that the relevant Galleon [sic] factors are punishment, and also deterrence of others, that punishing Mr. Whitaker for his behavior was critical, that no confinement would depreciate the seriousness of this offense, and that a prison sentence is the only way to send the message 10The sentencing court made other limited references to Whitaker's childhood community unrelated to general deterrence or protection of the public. However, Whitaker does not allege that these limited comments served as anything other than a basis for leniency. For example, the circuit court exempted Whitaker from the sex offender registration requirement, in part because it shifted the blame from Whitaker onto a community and a family that wasn't protecting the daughters. It also stated that [Whitaker] was in an Amish community. And so . . . I don't believe he poses a risk. 14 No. 2020AP29-CR to Mr. Whitaker . . . that this is totally unacceptable behavior. The circuit court sought to address the sheer number of crimes Whitaker committed, emphasizing that [i]t was a thousand. It was years of abuse. The circuit court also focused on the victims, calling the facts of their abuse abhorrent, saying A.B. was destroyed by her brother's actions, and stating its hope that Whitaker's sentence may help the family heal. ¶20 Having reviewed the entire sentencing transcript, we conclude that the circuit court's challenged statements bore a reasonable nexus to the relevant and proper sentencing factors of general deterrence and protection of the public. Nothing in the transcript suggests the circuit court increased Whitaker's sentence solely because of his religious beliefs or his association with the Amish community. See Williams, 381 Wis. 2d 331, ¶53. Therefore, we will not disturb the circuit court's wide sentencing discretion. Id., ¶45.",analysis
+454,3135291,2,6,"Defendant next argues that the State failed to prove him guilty of aggravated kidnaping, aggravated criminal sexual assault, and first degree murder beyond a reasonable doubt. When considering a challenge to a criminal conviction based upon the sufficiency of the evidence, our function is not to retry the defendant. People v. Milka, 211 Ill. 2d 150, 178 (2004). Rather, we must determine “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.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). In reviewing the evidence we will not substitute our judgment for that of the trier of fact. People v. Collins, 214 Ill. 2d 206, 217 (2005). The weight to be given the witnesses’ testimony, the credibility of the witnesses, resolution of inconsistencies and conflicts in the evidence, and reasonable inferences to be drawn from the testimony are the responsibility of the trier of fact. Milka, 211 Ill. 2d at 178; People v. Evans, 209 Ill. 2d 194, 211 (2004). A conviction may be sustained on circumstantial evidence, provided the elements of the crime have been proven beyond a reasonable doubt. Milka, 211 Ill. 2d at 178; People v. Buss, 187 Ill. 2d 144, 211 (1999). “The trier of fact need not, however, be satisfied beyond a reasonable doubt as to each link in the chain of circumstances. It is sufficient if all of the evidence taken together satisfies the trier of fact beyond a reasonable doubt of the defendant’s guilt.” People v. Hall, 194 Ill. 2d 305, 330 (2000). With these principles in mind, we consider the evidentiary record in detail. The Victim In 1987, Amy Schulz, then 10 years old, lived with her father Dennis, brothers Adam and Ryan (then aged 14 and 12, respectively), and stepmother, Esther, in a mobile home located a half mile south of Kell, Illinois. Kell is situated in Marion County just north of County Line Road, which separates Marion County to the north and Jefferson County to the south. On July 1, 1987, the date of Amy’s disappearance and murder, Amy spent the day with her father and -42- Ryan at her father’s vacuum cleaner business in Salem. According to Dennis Schulz, they returned home at 6 p.m. or 6:30 p.m. Amy changed her clothes, putting on a pair of red, homemade shorts, a red shirt, white socks, and white tennis shoes. Amy sauteed some mushrooms for herself and went to visit Gwen and William Willis, her “step-grandparents.”4 The Willises lived 100 yards north of the Schulzes across a field. Gwen Willis testified that she and Amy ate blackberries in the backyard, after which Amy returned home. Later that evening, Dennis Schulz gave Amy a flashlight and sent her into town to tell Ryan that Biscuit, one of the family dogs that was missing earlier, had been found. Because Jefferson Street is the only road that leads from the Schulz home into Kell, Dennis expected that Ryan and Amy would meet up at some point. Amy stopped at the Willis home around 8:30 p.m., stayed a short time, and then left, walking north on Jefferson Street toward Kell. Ryan never saw Amy, and Amy never returned home. Amy was last seen by neighbors Cathy Simmons and Paul Sherwin, who saw Amy walking south on Jefferson Street at about 9:10 p.m. and 9:15 p.m., respectively. The following morning an oil-field worker discovered Amy’s body on a dirt oil lease road in rural Jefferson County. Vehicle Sightings Cathy Simmons, who was 16 years old at the time of Amy’s murder, lived in Kell and knew the Schulz family. She testified that on the evening of July 1, 1987, she and her sister Cheri took a walk and saw Amy. Amy asked if they had seen her brother; Simmons told her no. Simmons and her sister finished their walk, arriving back home at 8:45 p.m. or 8:50 p.m. Simmons stayed on the front porch for a half hour. At about 9:10 p.m., Simmons again saw Amy, who was headed south on Jefferson Street. About 5 or 10 minutes later, Simmons saw a tan, older model vehicle, which she had seen twice earlier that evening, also headed south on Jefferson Street. Simmons saw the taillight configuration on the tan-colored car for about 30 seconds, and worked with a police artist to produce a sketch. The taillights in 4 Gwen Willis was Esther Schulz’s mother; William Willis was Gwen’s husband. -43- the sketch were similar to the taillights on her parents’ vehicle, but were not a match with the taillights on defendant’s vehicle. Simmons was not sure whether the drawing accurately reflected what she saw that night. Simmons offered conflicting testimony as to whether defendant’s vehicle was the same color as the vehicle she saw on July 1, 1987. She also admitted telling the defense investigator in a May 2002 interview, after being shown photographs of defendant’s vehicle, that defendant’s car was not the car she saw on July 1, 1987. She noted, at that time, that the taillights were different and that defendant’s vehicle had no rust on the right passenger wheel well, unlike the vehicle she saw in 1987. She also told investigators on July 2, 1987, that the driver of the vehicle was on the thin side, a description that would not fit defendant. Defendant’s brother, Kenneth, testified that in August 1987, defendant, who was 6 feet 3 inches tall, weighed about 250 or 260 pounds. Simmons’ sister, Cheri Norton, also testified regarding the walk they took the night Amy disappeared. Norton recalled that they saw a vehicle in town that evening that they did not recognize, but she could not provide a description of the vehicle. Darlene Prior, a Kell resident, testified that on the night of July 1, 1987, she left her sister’s home, which was located on Jefferson Street, at about 9 p.m. On her way home, Prior noticed a creamcolored car which resembled a car she used to own–an older Dodge Polaris–going faster than she thought it should. The taillights looked similar to the taillights in the police sketch. Prior did not recall telling officers on July 10, 1987, that the taillights on the car she saw did not look like those in the drawing. The Crime Scene Richard Caudell, a crime-scene technician with the Illinois State Police, processed the crime scene. Because Caudell died prior to defendant’s retrial, Caudell’s testimony from defendant’s first trial was read to the jury. Caudell testified that the victim was found on a dirt, oil-lease road in Jefferson County about 108 feet west of where the lease road meets county road 1975 east (a north-south dirt and oil road). The victim was lying on her stomach, nude, covered with dust -44- and dirt, with a large amount of blood around her head. A large open wound on the right side of her neck exposed the spinal cord area. Caudell observed shoe impressions on the victim’s back and hairs “stuck in the rectum area.” Caudell also observed a set of tire tracks that began at the entrance to the oil lease road and ended 17 feet from where the body lay, as well as a shoe impression in the mud about six feet from where the tire tracks ended. The shoe impression, which was similar to the shoe impressions on the victim’s back, was located on what would be the driver’s side. Although he observed no trail of boot prints leading to the body, he observed the same tread design on the ground beside the body. Caudell made plaster casts of the tire tracks and shoe impression, and bagged the victim’s clothing which was found on road 1975 east. The underpants had been cut or ripped up the sides, and the red shorts and T-shirt had been turned inside out. The victim’s shoes and socks were also recovered. Donald Ostermeyer, a defense expert in crime-scene techniques and the recovery of evidence, was critical of Caudell. Ostermeyer testified that Caudell should have removed the hairs from the body immediately to prevent loss, and that Caudell compromised the crime scene by placing a sheet over the body. Ostermeyer was also critical of Officer Anthis, the case agent assigned to investigate the matter, because he did not view the crime scene until July 3, 1987. He further testified that police should have talked to oil-field workers about the tire prints. The State and defendant offered evidence that the distance from Kell to the crime scene was approximately 12 miles. Officer John Kemp testified that the most direct route would take approximately 14 minutes to drive, ending in a desolate area of the county. According to Kemp, unless the driver knew the area, “you would basically wander around through there for an extended period of time before you came back to something you recognized to get you back to a main road.” The State offered testimony from Officer Kemp and Russell Hails, a local farmer, which the State argued demonstrated that defendant was familiar with the area. According to their testimony, the last family that lived down the road from where the body was found was the Hufford family. Their home was located about a half mile from the crime scene. Susan Hufford married -45- defendant’s brother Kenneth, and Deborah Hufford married defendant’s brother Michael.5 The Huffords lived at that location until the mid-1980s. According to Joan Sutherland, Susan and Kenneth lived at the Hufford home for a short time. In addition, Officer Kemp testified that defendant previously lived at County Line Road and Harmony Road, about 4½ miles from where the body was found. The Autopsy Dr. Steven Nuernberger performed an autopsy on July 3, 1987. The autopsy revealed an incised wound to the victim’s neck, made by a nonserrated blade, which began left of the midline and had four separate starting marks. The four marks fused into one deep cut that ended behind the right ear, severing the jugular vein and the carotid artery on the right side of the neck and cutting into the cartilage between the fourth and fifth vertebral body in the spinal cord. In addition to the incised wound, Dr. Nuernberger observed hemorrhaging to various neck muscles and the right eye, and that the larynx had been crushed. He observed no ligature marks. Dr. Nuernberger testified that these injuries were consistent with strangulation effected by human hands grasping the victim around the neck. Three distinct areas of hemorrhaging beneath the scalp indicated that the victim had also sustained three blows to the head. In addition, the inner surface of the upper and lower lips were torn and bruised, suggesting that “[s]he had been smacked across the mouth.” The victim’s right ear was torn off at the base, and she had numerous abrasions and contusions. Dr. Nuernberger observed a discreet heel print in dirt on the lower back, and a second heel print on the upper right back that was delivered with “a lot of force,” injuring the skin. Further examination revealed a subtle abrasion of the labia majus, but no vaginal penetration. Anal penetration, occurring either shortly before or after death, was evident, as was a fracture of the right first rib occurring during the same time frame. 5 At the time of the events at issue here, Michael was married to Tina, who was also a witness in this case. -46- An examination of the internal organs revealed trauma to the right kidney and that the liver had been torn almost in half, indicating that “a lot of force” had been applied across the abdomen. Based on the small amount of internal bleeding that occurred in connection with the liver injury, Dr. Nuernberger concluded that the injury occurred postmortem. Dr. Nuernberger testified that based on his examination, the victim was strangled first, possibly into unconsciousness, after which her throat was slit. The pool of blood at the location where the body was found, and the absence of a trail of blood, indicated that the body was not moved after her throat was cut. In addition, exsanguination from the incised wound was more rapid than normal “because someone stepped on her back and squeezed the blood out of her body.” Nothing at the crime scene suggested to Dr. Nuernberger that the confrontation between the victim and her attacker was prolonged; the confrontation could have occurred in a “frenzied few minutes.” Dirt on the victim’s feet indicated that the victim may have been dragged. Finally, Dr. Nuernberger testified that based on the stomach contents, if the victim last ate at approximately 6:30 p.m., death occurred between three to four hours later, i.e., between 9:30 p.m. and 10:30 p.m. Boot and Tire Impression Evidence David Brundage, an expert in footwear and tire track identification with the Illinois State Police, examined the plaster casts of the tire and boot impressions from the crime scene. Brundage determined that the boot print was made by a Texas Steer brand boot sold only by K mart stores. Brundage acknowledged that the Texas Steer boots that were among defendant’s possessions in Montana had a different lug pattern on the sole and could not have left the prints at the scene. Brundage did not attempt to size the plaster casts of the boot impressions. Dr. Nuernberger, however, testified that the shoe impressions on the victim’s back appeared larger than his size 9½ shoe, although the doctor admitted that shoe size was not his area of expertise. The State also offered testimony from William Bodziak, an expert in footwear impressions, that the boot which left the print at -47- the crime scene was a size 12. Pursuant to directions from Bodziak, Officer Kemp measured defendant’s feet using three different methods. Based on Kemp’s measurements, Bodziak concluded that defendant’s feet are “approximate 12s.” Bodziak could not determine the size of the shoe that left the print on the victim’s back, but testified that it was larger than a size 7. Defendant countered this evidence with testimony from Nicholas Petraco, an expert in footwear analysis, that the boot that left the prints at the crime scene was a size 7 or 8. In contrast, defendant’s Texas Steer boots were size 12 triple E. According to Petraco, the style of the Texas Steer boot that left the prints at the scene was not available in a triple E width. Marvin Edelman, a senior buyer at Meldisco, the company that manufactured Texas Steer boots, confirmed that the style in question was manufactured in sizes 7 through 13 in medium width only. Edelman noted, however, that if a customer needed a wider width, he or she could simply go up a half size. In addition to Petraco’s testimony, defendant offered the testimony of his brother, Michael Sutherland, and the testimony of Charles Parker, formerly a special agent with the Illinois State Police. Michael recalled that on the night of July 1, 1987, defendant was wearing his black lace-up boots, and Parker testified that none of the boots in the Sutherland household matched the prints at the scene. Tina Sutherland (Michael’s wife) also testified that defendant was wearing black lace-up boots that evening. David Brundage also examined the plaster casts of the tire impressions found at the scene and concluded that the prints were made by a bias-belted tire, rather than a radial tire. Brundage sent a black and white photo of the best plaster cast to over 100 tire manufacturers and distributors for help in identifying the tire that left that print. Plaiston Tire and Laramie Tire suggested, respectively, that the print could have been made by a Dean Polaris or Falls Persuader tire, both manufactured by Cooper Tire. Steve Cramer, the operations manager for consumer relations at Cooper Tire, also believed the print could have been made by a Cooper Tire brand tire and suggested that Brundage obtain a used Falls Persuader tire for comparison. In September 1987, Brundage obtained a used Falls Persuader tire and concluded that the plaster casts from the crime scene were consistent -48- with the Falls Persuader tire. Brundage also testified that the prints could have been created by a Dean Polaris tire. He explained that the minor differences between a Falls Persuader tire and a Dean Polaris tire that are visible when the tires are new disappear with wear. Brundage admitted that David Mires, Cooper Tire’s chief engineer, offered a different opinion. Mires maintained that the print was not made by a Cooper Tire brand tire but by a Goodyear Custom Super Cushion, possibly mounted on a trailer. Brundage explained that he valued Cramer’s opinion over Mires’ opinion because Cramer’s job at Cooper Tire was to evaluate damaged tires, “so he was used to looking at tires in a worn condition,” whereas Mires’ job involved the design of new tires. Mark Thomas, an engineer in the tire mold design group at Cooper Tire, was aware that Mires did not believe the print at the scene was made by a Cooper Tire brand tire, but he did not recall whether he spoke to Mires about the possibility of the print being made by a Goodyear tire. Thomas testified that the print from the scene showed the same number of ribs, grooves, and sipes, and the same repetitive pitch design, as either the Dean Polaris or Falls Persuader tire. He further testified that, based on evidence of “malwear,” the tire would have been mounted on the front of the vehicle. According to Thomas, 300,000 Falls Persuader and Dean Polaris tires were produced from 1972 to 1987. In October 1987, Brundage traveled with investigators to Montana to examine defendant’s vehicle, which had a Falls Persuader tire in the right front position. Brundage determined that, with the exception of additional wear, the tire on defendant’s vehicle exhibited all the same class characteristics as the plaster cast and that it could have made the impressions at the crime scene. A positive identification was not possible because the individual characteristics were either obliterated or very unclear on the plaster cast. In November 1987, investigators provided Brundage five additional tires from other vehicles for examination. In a report dated December 4, 1987, Brundage concluded that three of the tires, in addition to the tire from defendant’s vehicle, could not be excluded or identified as creating the print at the scene. At trial, however, his conclusion changed. Brundage testified that only one of the tires he examined could have made the print: defendant’s tire. Brundage -49- testified that the day before he took the witness stand, the prosecutor had asked him to reevaluate the tires, which he did, at the prosecutor’s office. Brundage explained that the reason for the change in his opinion was that the investigation of the tires he conducted in the prosecutor’s office the previous day was “a more thorough investigation” than the one he had conducted in his laboratory in 1987 and that he had a little more knowledge about tires currently than he did 17 years earlier. The defendant offered testimony from a friend and mechanic, Ronald Lawrence, that sometime after July 24, 1987, but prior to defendant’s trip to Montana, he changed all four tires on defendant’s vehicle. Lawrence admitted, however, that in a March 1994 affidavit he stated that he changed three tires on defendant’s vehicle between July 28 and August 4, 1987. Lawrence also admitted testifying at a prior hearing in 1998 that he had changed 10 tires on defendant’s vehicle between the date of the murder and late August. Vicki Lawrence, Ronald’s wife, also testified that on July 24, 1987, defendant was at their home for their son’s tenth birthday party. Vicki was upset because her husband came home from work and changed the tires on defendant’s car, rather than coming inside the house for the party. The first time Vicki went outside they were changing the right front passenger tire; the second time she went outside they were changing “the other tire.” Vicki acknowledged that she provided an affidavit in this case in March 1994 that made no mention of this. In addition to the Lawrences, defendant’s mother, Joan Sutherland, testified that she gave a statement to police on October 26, 1987, in which she advised investigators that her son had changed the front tires on his vehicle after Amy’s murder and prior to his departure for Montana. William Anderson, with Gator Tire, testified for the State that he examined the right front tire from defendant’s vehicle to determine whether it had been on another vehicle. If the tire had been removed by hand, he would have expected to see marks on the rim, which he did not see. -50- Human Hairs Recovered From the Body Richard Caudell, the crime-scene technician, observed hairs “stuck in the rectum area” of the victim. Dr. Nuernberger, who performed the autopsy, also observed hairs “adherent to the anal crease and the buttocks  by fecal matter.” Kenneth Knight, a forensic scientist and expert in hair and fiber analysis, examined the hairs recovered from the victim’s rectum: eight Caucasian head hairs, which were consistent with Amy’s head hairs; two Caucasian pubic hairs, which had been forcefully removed from the source; one Caucasian hair of undetermined body origin; and one animal hair, whose species could not be identified. The pubic hairs were used to screen suspects because of their location on the victim and the fact that the victim was prepubertal and thus had no pubic hair of her own. In July 1987, Knight conducted microscopic comparisons of the two pubic hairs found on the victim with pubic hair standards from Dennis, Esther, Adam and Ryan Schulz, Gwen and William Willis, and 23 other individuals. In making his comparisons, Knight considered 23 characteristics, including the hair’s relative length and color; the hair’s configuration, i.e., whether the hair was straight, curly, or wavy; whether the tip of the hair was tapered, broken, rounded, cut or shaved; whether the root was retched, putrid, or bulbous; the size of the shaft; whether the base of the hair was pigmented or damaged; the scale pattern; and the cuticle. Knight explained that to make a determination that an unknown hair could have originated from the same source as a known standard, all the characteristics present in the unknown hair must be present in the standard, with no unexplained differences. When a difference exists that cannot be explained, the source of the known standard must be excluded as a source of the unknown hairs. Based on his microscopic analysis, Knight concluded that the pubic hairs recovered from the victim were dissimilar to the pubic hairs standards from the Schulzes, Willises, and the 23 other individuals and did not originate from them. Knight also microscopically compared the two pubic hairs with pubic hair standards from defendant and determined that the hairs were consistent with each other. Knight noted a difference in pigmentation in the shaft of defendant’s hair, but considered this difference insignificant. Knight concluded that the pubic hairs found on the victim could have originated from defendant. According to -51- Knight, five other examiners reviewed his work with regard to defendant’s hair standards, and all five examiners agreed with his conclusion. The pubic hairs recovered from the victim and the standards obtained from defendant were also subjected to mtDNA analysis. Harold Deadman, the State’s expert on forensic analysis of hair, fiber, and DNA, testified that human hair comparisons based on microscopy are quite difficult because microscopy involves a subjective examination, and the “ability to get the right answer depends on the skill of the person doing the comparison.” Deadman further testified that mtDNA analysis is a more objective technique and, when performed after microscopy, functions “as kind of a quality control mechanism,” likely to pick up a mistake by the microscopist. Neither method, however, provides absolute identification. The differences between nuclear DNA and mtDNA were explained by Harold Deadman, as well as John Planz, an expert in the application of DNA and mtDNA techniques in forensic testing, and Terry Melton, whose lab, Mitotyping Technologies, performed the mtDNA analysis in this case. Generally, nuclear DNA is found in the nucleus of a cell and is transmitted by both parents to their offspring. In contrast, mtDNA is housed in the mitochondria of a cell, found in the cytoplasm surrounding the nucleus. No paternal contribution is made to mtDNA; it is inherited only maternally. Thus, a mother, her children, the mother’s siblings, and the mother’s maternal ancestors all have the same mtDNA. A nuclear DNA molecule has a “double helix” structure and contains three billion “base pairs” consisting of four chemicals: adenine, thymine, cytosine and guanine. Although mtDNA also exhibits a “double helical” form, it is more compact and contains only about 16,569 base pairs. Scientists conducting DNA analysis of two samples compare the sequencing of the base pairs in certain control regions on the DNA strands. A match between two nuclear DNA profiles is much more discriminating than a match between two mtDNA profiles. Terry Melton testified that her laboratory performed an mtDNA analysis of the two pubic hairs found on the body, and blood samples obtained from defendant and William Willis, Amy’s step-grandfather. Melton explained that the mtDNA is first extracted, then copied and -52- sequenced, producing a “string of chemical bases 783 long.” The sequences from the known sample and unknown sample are then compared. A single difference is inconclusive. Two or more differences means that the donor of the known sample, along with the donor’s maternal relatives, are all excluded as the source of the unknown sample. A complete match between the two sequences means that the known individual, and his or her maternal relatives, cannot be excluded as the donor of the unknown sample. If a match is obtained, a search of the “Scientific Working Group on DNA Analysis Methods” (SWGDAM) database reveals how rare or common the sequence may be in the general population, allowing for further statistical analysis. John Planz explained that the SWGDAM database, which the Federal Bureau of Investigation (FBI) maintains and controls, contains over 4,000 mtDNA sequences from primarily North American populations and is constantly growing. The mtDNA sequencing performed at Melton’s laboratory disclosed numerous differences between the mtDNA sequences in the two pubic hairs found on the victim and in Willis’ blood. Thus, Willis was excluded as a possible donor of the two pubic hairs. However, a comparison of the mtDNA sequences from the unknown hairs and defendant’s blood produced a match. Melton’s laboratory analyzed a third hair of unknown origin removed from the sheet used in transporting the body to the morgue. The mtDNA analysis excluded Willis, the victim, and defendant as the source of the hair. Melton did not find the absence of a match significant. She testified that because humans shed between 75 and 100 hairs per day, it is not uncommon to find hairs at a crime scene that are unrelated to the crime. Melton’s laboratory analyzed a fourth hair, identified as a human hair from the victim’s rectal crease. The mtDNA sequence in this hair was identical to the mtDNA sequences in the two pubic hairs recovered from the body, as well as the mtDNA sequence obtained from defendant’s blood. To determine the significance of the match between the mtDNA from the three hairs found on the victim and the mtDNA in defendant’s blood, a search was made of the SWGDAM database. Melton testified that this type of sequence had never been observed in the database, indicating a certain rarity in the population. Statistically, -53- the sequence observed here would not be expected to occur in more than six one-hundredths of one percent (.06%) of the North American population. Stated differently, at least 99.94% of the North American population would not be expected to have this type of mtDNA sequence. Melton further explained: “So the vast majority of people will not have this type, and we place that with what we call a 95 percent confidence. So five percent of the time it could be different, but it’s not likely to be more than that 95 percent of the time.” Melton also clarified that “we cannot ever eliminate the possibility that a maternal relative [of defendant] was the donor” of the hairs found on the victim. Testimony from various family members established that defendant had numerous maternal relatives, and that defendant, Michael Sutherland, Kenneth Sutherland, and their uncle Walter Sinclair, all lived within eight or nine minutes of each other. Melton further testified that no measurable pooling of genes exists in any of the regions of the United States that have been sampled, and she has not seen mtDNA sequences that appear to be abundant in one region that are not abundant somewhere else. “[W]e don’t have any indication that we would go out into a particular city or town and start seeing one type picked at random over and over again. Not if we have a population to choose from of some size.” William Shields, a defense expert in population and molecular genetics, reviewed Melton’s mtDNA reports. Shields testified that Melton’s reputation in the scientific community was very good and that the laboratory results Melton obtained were “good clean results.” Shields disagreed, however, with Melton’s statistical analysis and her use of the SWGDAM database. In his opinion, Melton underestimated the frequency of the mtDNA sequence in this case, thus overstating the significance of the match. Shield’s disagreement stemmed from the notion of “population substructure, the fact that the frequency of genetic types will differ among groups of different kinds.” To illustrate his point, he offered the following example: “Red heads have a reasonably low frequency. If you look at the whole world’s population. And, in fact, if I was in  what used to be called the Belgium [sic] Congo, and somebody told me a red head committed a crime, I could -54- probably find that there were only three or four red heads in the population , which would give me a pretty good handle on what was going on. The frequency would be very low . But if I went to an Irish village in a particular place in Ireland, where 90 percent of the people are red heads, it would have very little meaning. That’s the difficulty.” Shields noted that in this case, there are at least three individuals besides defendant who share the same mtDNA, but that this information is not reflected in the SWGDAM database used by Melton. He testified that a way to insure that the worth of the evidence is not overestimated is to develop an “upper limit,” i.e., a frequency that the true frequency is not likely to be greater than. Shields testified that because the population in the geographic area of the crime is not known, the best estimate of the likelihood that someone drawn at random from that population would be a match with the mtDNA from the crime scene is the largest number seen in any populations that are known. The largest such number seen in any population reflected in the SWGDAM database is 1 in 12, reflected in the Thai population. “What it means is we think that if the Thais could have this level of matching, so could a local population that we’ve not sampled.” Robert Makuch, a defense expert in biostatistics, agreed with Melton’s calculations, but disagreed with her conclusion that “we can exclude 99.93% of the population as contributors of the questioned sample.” Melton’s report, which Makuch reviewed, stated that, based on a database of 4,142 mtDNA sequences, “the 95% confidence limit is 0.000722, or .07%,” meaning that “there is a 5% chance that the true frequency in the population exceeds 0.07%.” Makuch explained that, multiplying 4,142 by .07 yields a value of 3. “So what it really is saying within 95 percent confidence,  it would be reasonable for us to see between zero matches and up to three matches with a data base of this size.  [B]ut then to turn it on its head and then to say that we can exclude 99.93 percent of the population is in biostatistics, it’s simply an inappropriate conclusion for those kinds of data.” Makuch also testified that from a practical standpoint, we know that defendant’s siblings have the same mtDNA. -55- In rebuttal, the State called Bruce Budowle, a senior scientist with the FBI who had a primary role in developing the SWGDAM database. Budowle did not disagree with either Melton’s calculations or Makuch’s calculations, testifying that the results each obtained are simply expressed differently. Budowle did, however, disagree with Shields’ worst case scenario that the mtDNA frequency in this case is one in 12. Budowle also testified that even in small communities, the pooling of a particular mtDNA sequence does not occur to the degree necessary to affect case interpretation. Additionally, Harold Deadman testified that knowing defendant has brothers would affect only the associative value of the mtDNA evidence, but not the value of the microscopic hair comparisons. Deadman testified that even the hair from identical twins could be microscopically dissimilar. Thus, although Deadman had not seen any reports concerning microscopic examinations of the hair of defendant’s siblings and other maternal relatives, he would not expect their hair to be microscopically similar to defendant’s hair. Fibers From Victim’s Clothing and Defendant’s Vehicle Kenneth Knight, who examined the human hair recovered from the body, also examined the fiber evidence recovered from the victim’s clothing and defendant’s vehicle. Knight testified that where two fibers are consistent with each other, i.e., have no significant or meaningful differences, the conclusion is that the fibers “could have originated” from the same source. Harold Deadman testified that a cross-transference, i.e., a two-way transfer of fibers, adds evidential value because the odds of finding these fibers by chance is small, which makes the likelihood that the objects were in contact much greater. According to Deadman, to find any more than a small number of matching fibers by pure coincidence is very unlikely. Knight testified that among the fibers found on the victim’s clothing were three gold fibers and one gold tuft (comprised of over 30 individual fibers) found on the socks; six gold fibers found on the shoes; nine gold fibers found on the underpants; eight gold fibers found on the shorts; and three gold fibers found on the shirt. Knight compared these fibers with carpet standards from the front and back of defendant’s vehicle. With the exception of one gold fiber from the -56- shirt, all of the individual gold fibers and the gold tuft were consistent with the carpeting in defendant’s vehicle. Specifically, Knight testified that the fibers were all large-diameter, trilobal, polyester fibers, consistent in color, fluorescence, and refraction. The gold fiber on the victim’s shirt that was inconsistent with the carpeting was a mediumdiameter gold fiber made of nylon. That fiber was consistent with the fabric in the front and back seats of defendant’s vehicle. Knight was provided carpet standards from the victim’s environment, including the Schulz residence, the Willis residence, and Salem Vacuum Cleaners (Dennis Schulz’s business), for comparison with the gold fibers found on the victim’s clothing. Knight concluded that the gold fibers and the gold tuft did not originate from the victim’s environment, as represented by these standards. In addition, Knight contacted J.P. Stevens & Co., whose name was listed on the carpet tag removed from defendant’s vehicle. Robert Woosley, previously with J.P. Stevens and now a consultant for the automotive carpet industry, testified that the gold polyester carpet identified by the carpet tag was manufactured exclusively for Chrysler. According to Gary Mallett, formerly with the Chrysler corporation, the type of carpeting installed in defendant’s vehicle was used only in certain models for model years 1977 and 1978. Erring on the high side, Mallett estimated that the same type of carpeting was installed in 80,450 vehicles. Harold Deadman testified that, assuming all the vehicles in which the same gold carpeting was installed still existed in 1987, the odds were one in 1,400 of picking a car at random with the same carpeting. Kenneth Knight further testified regarding the fibers recovered from defendant’s vehicle, which was transported in a rental truck from Montana to Mt. Vernon, Illinois, for processing. Knight testified he did not know how many persons were in the vehicle after July 1, 1987, the date of the murder. Other testimony indicated that a gas station employee drove the car briefly late in the day on July 1, 1987, and that during the period from October 10, 1987 (the date the car was found in Montana), and October 28, 1987 (the date the car was processed), at least two park rangers had been inside the vehicle. In addition, testimony from Officer Anthis, who had flown to Montana and arranged for the transport of the vehicle to Illinois, suggested that -57- the car could have been driven a short distance when the Jefferson County police conducted their initial investigation of the vehicle. Knight testified that over 6,000 red fibers were recovered from the vehicle and all but 19 were dissimilar to the victim’s clothing. Specifically, 12 cotton fibers and 4 polyester fibers from the front passenger carpeting were consistent with the victim’s shirt, which was a red polyester and cotton blend. In addition, one red fiber recovered from the front passenger carpeting, and two red fibers found on the front passenger seat, were consistent with the victim’s red shorts. Knight considered this match significant because the victim’s shorts were homemade out of a fabric not typically used for clothing: a multilobe, large-diameter polyester fabric. Harold Deadman also considered the red fibers uncommon. The 19 red fibers were inconsistent with carpet standards obtained from the victim’s environment, as well as clothing and a bedspread found in defendant’s vehicle. Fiber standards from the two park rangers who were inside the vehicle were not provided to Knight for comparison. Randall Bresee, a defense expert on fiber analysis, criticized Knight’s methodology, testifying that Knight’s observations were largely subjective. According to Bresee, Knight failed to perform a quantitative analysis of the fibers, such as counting the delusterant particles, measuring fluorescence, and computing the fiber diameter values and modification ratios (a quantitative measure of fiber shape). He also testified that the visual color comparison Knight performed is error-prone, and that the better method would have been to identify the dyes used to color the fibers. Bresee noted that Hoechst Celanese, the company that produced the polyester used by J.P. Stevens in the manufacture of the carpeting at issue here, could not specifically confirm that it produced the fibers found on the victim’s socks. Bresee also opined that any polyester Hoechst Celanese produced that was “off spec,” or surplus, would have gone into the marketplace into other goods. Thus, the same fibers found in the carpeting used in 80,000 Chrysler vehicles would also be found in other goods such as residential carpeting, floor mats, and crafts. -58- Dog Hair Kenneth Knight testified that animals generally have three types of hair: fur, which insulates the animal; guard hairs, which protect the animal; and tactile hairs, such as whiskers. Guard hairs are used for comparison because they have the largest number of characteristics to compare. Knight recovered 32 guard hairs from the victim’s clothing: 14 from the socks, 4 from the shoes, 4 from the underpants, 4 from the shorts, and 6 from the shirt. In addition, he obtained a single guard hair from Richard Caudell, which Knight was informed had been removed from the victim’s underpants. Knight compared these hairs with hair standards from defendant’s dog, Babe, a black Labrador retriever, and concluded that the hairs found on the clothing were consistent with Babe’s hair and could have originated from Babe. Knight also compared the dog hairs from the victim’s clothing with hair standards from nine dogs in the victim’s environment, including five dogs owned by the Schulz family. The hairs found on the victim’s clothing were dissimilar to these hair standards. In addition, Knight examined one dog hair recovered from the transport sheet. This hair was also consistent with Babe’s hair and dissimilar to the hair standards from the victim’s environment. Knight testified that during the processing of defendant’s vehicle he observed animal hair throughout the vehicle and that all of the tapings from defendant’s vehicle contained dog hair. Knight sampled 90 hairs from the front right passenger carpeting, which he concluded were consistent with Babe and could have originated from Babe. Several of the dog hairs found on the victim’s clothing, as well as standards from defendant’s dog, were provided to Joy Halverson of QuestGen Forensics for mtDNA testing. Halverson testified that the same mtDNA process used on human hair is used on animal hair, but the number of base pairs compared is 655. Like human mtDNA, dog mtDNA does not distinguish among maternal relatives. Halverson tested eight animal hairs from the victim’s clothing and standards from Babe and concluded that the eight hairs were a match with Babe. In order to determine the significance of the match, Halverson compared the mtDNA sequence found in this case with the 345 sequences contained in a dog DNA database she developed. The sequence in this case appeared nine times in her database, indicating a frequency of 2.6%. She explained that dog mtDNA is less -59- discriminating than human mtDNA and that a “match” in this case means that if the dog population in general were sampled, one out of 38 times the same mtDNA sequence would be seen. Halverson also testified that evidence suggests no correlation between a dog’s breed and its mtDNA sequence. Thus, a German Shepherd and a Dachshund could have the same mtDNA and two German Shepherds could have different mtDNA. Christopher Basten, an expert in statistical analysis of DNA results, reviewed Halverson’s report. He testified that the database Halverson used was valid and a reasonable approximation of dogs throughout the United States. According to Basten, an alternative way of expressing the results Halverson obtained is to say that it is “38 times more likely if Babe or a litter mate is the source than if it’s some unrelated dog.” Basten applied a confidence interval to Halverson’s results and obtained a “likelihood ratio of 21, which says that it’s at least 21 times more likely if Babe or a litter mate is the source than if it’s some random dog. And you could also say it’s one in 21.” Robert Makuch, a defense expert on biostatistics, challenged the validity of Halverson’s database, testifying that 345 sequences is a small number to be representative of the entire dog population of the United States. He also testified that the method of obtaining the sequences must guard against bias and that a random sampling of dogs from each of the 50 states could produce a database different from the one Halverson compiled. Defendant’s Knives Federal park ranger Robert Burns testified that among the items he turned over to Jefferson County police were four knives found at defendant’s campsite, including a hunting knife, a “bayonet-type knife,” a “survival knife” with a long blade and serrated back edge, and possibly a pocket knife. Officer Kemp also identified certain knives in court as belonging to defendant. Investigators found no blood on these knives or any of the other items from defendant’s vehicle and campsite. Dr. Nuernberger testified that any sharp, nonserrated blade or sharp linear object could have been used to cut the victim’s throat. -60- Defendant’s Whereabouts on July 1, 1987 Evidence established that on July 1, 1987, defendant, who lived in Dix, Illinois, with his parents, went to his regular place of employment in Mt. Vernon, where he worked from 8 a.m. to 4 p.m. Joan Sutherland, defendant’s mother, testified that defendant ate dinner with her that evening, and that they usually ate dinner between 5 p.m. and 6 p.m. After dinner, defendant went to the home of his brother Michael. Tina Sutherland, Michael’s wife, testified that on July 1, 1987, defendant was at their home in Texico, Illinois, which is located about five miles and five minutes from defendant’s home. Although Tina did not recall when defendant arrived, she recalled that he and Michael watched a violent, bloody movie and that defendant left in his vehicle after the movie ended at 9:30 p.m. Defendant was wearing bib overalls, a white tank “T-shirt,” and black boots, which he laced up in her kitchen before he left. Tina admitted that when she spoke to police in November 1987, she told them that defendant left at 8 p.m. or 8:30 p.m., and that she gave testimony to that effect at a hearing in 1989. Tina testified that she did not recall the name of the movie defendant and Michael watched until defendant’s present counsel showed her a TV guide for that date. The movie they watched was “Red Sonja,” which ended at 9:30 p.m.–15 minutes after Amy disappeared. Michael Sutherland testified that defendant arrived at their home at 5:30 p.m. or 6 p.m. Defendant was wearing black lace-up boots, which he took off to watch the movie. The movie involved sword fighting. Michael initially told police defendant left around 9 p.m., and testified at the prior hearing that defendant left after the movie. When defense counsel provided Michael a TV guide for July 1, 1987, Michael was able to identify the movie they watched as “Red Sonja,” which ended at 9:30 p.m. In rebuttal, the State called Sherry Witzel, who, in 1989, was an intern for the Jefferson County public defender, assisting defendant’s prior counsel. Witzel testified that in May 1989, either Tina Sutherland or Susan Sutherland gave her a copy of the TV guide for July 1, 1987. The same woman later told Witzel that defendant was at her home on the night of July 1, 1987, and that defendant and his brother watched a movie titled “Big Trouble in Little China.” Witzel -61- remembered the name of the movie because she watched the same movie. “Big Trouble in Little China” ended at 9 p.m. The State also offered evidence that on the night of July 1, 1987, at 10:57 p.m., Joan Sutherland, defendant’s mother, received a telephone call from defendant; a belt had broken in defendant’s car. Mrs. Sutherland testified that she met defendant at a gas station in Mt. Vernon, approximately 15 miles from her home. She arrived well after 11 p.m. Mrs. Sutherland and defendant made two trips in her pickup truck to an Amoco station on the interstate to get the correct size belt. Defendant installed the belt and Mrs. Sutherland followed him home in her truck. En route, police stopped their vehicles and spoke with them briefly. They then drove home. Defendant was at home the next morning and did not act unusual. State Trooper Jane Middleton testified that on July 1, 1987, she was requested to assist in the search for Amy Schulz by setting up a point on the Marion-Jefferson county line to stop vehicles to see if anybody had seen Amy. The location was about two-tenths of a mile west of Jefferson Street. Middleton used her flashlight to flag down motorists. At about 12:30 a.m. on July 2, 1987, Middleton tried to flag down defendant’s vehicle, but defendant did not stop until Middleton “hollered real loud.” He stopped 500 feet east of her. Middleton identified defendant’s vehicle from photographs and testified that the driver was heavier set, with brown, unkempt hair, and facial hair. She made an in-court identification of defendant, testifying that she recognized him from his eyes and mouth, although she viewed him primarily from the side. Middleton stated that defendant did not want to look at her and that he appeared nervous. She made a note of the stop in her report of July 7, 1987, but did not identify him by name and could not recall the license plate number. On cross-examination, Middleton testified that what she wrote in her report was simply, “At approximately 12:30 AM on the 2nd I checked the vehicle but could not remember the license plate or the registered owner.” Larry Martin, formerly a cashier at Harper’s Gas Station in Mt. Vernon, testified that one evening in early July 1987, prior to July 4, he noticed a bigger man in bib overalls on the lot working underneath the hood of his vehicle, which was an older model. After 10 to 15 minutes, the man used the restroom for a minute or two, came inside and made a telephone call, and then returned to his car. The man -62- asked Martin to help him move his vehicle to the south side of the building. Martin sat in the driver’s seat and steered, while the man pushed. The man waited inside for his ride, and left with an older woman in a pickup truck. When Martin left the station at midnight, the man’s vehicle was still on the lot. About 30 minutes had passed from the time Martin noticed the man, to the time the man was picked up. According to Officer Anthis, the most direct route from the crime scene to Harper’s Gas Station in Mt. Vernon is about 20 miles and would take about 22 to 24 minutes to drive. ••• Before considering the sufficiency of the State’s evidence, we note that we have omitted from the foregoing summary any reference to the extensive evidence defendant presented at trial which he argued established that William Willis, the victim’s step-grandfather, committed the crimes with which defendant was charged. Defendant has abandoned this argument on appeal, and we therefore find it unnecessary to recount this evidence, particularly the testimony of the numerous witnesses whom, as children, were molested by Willis. Moreover, the jury could have reasonably rejected defendant’s theory of the case where the mtDNA evidence excluded Willis as a donor of the two pubic hairs found on the victim’s buttocks. Although defendant argued that the hairs were unrelated to the crime, the jury could conclude otherwise based on the sexual assault evidence and Dr. Nuernberger’s testimony that the hairs were adhered to the anal crease and buttocks by fecal matter. As to the sufficiency of the evidence, defendant argues that the State’s evidence, contrary to the arguments the State made during closing, failed to connect him to the crime. The State argued in closing that defendant was familiar with the rural road where the body was found and that his whereabouts during the critical period from the time the victim disappeared (approximately 9:15 p.m.) to the time of death (no later than 10:30 p.m.) were unknown. The State also argued that the hair and fiber evidence linking defendant to the crimes could not be simply “coincidence,” particularly where carpeting, animals, and numerous individuals in the victim’s environment were eliminated as possible sources of the hair and fiber. Finally, the State argued that the tire prints, boot prints, defendant’s knives, and the vehicle -63- sightings in Kell all had evidentiary value and pointed to defendant. Defendant contends that even if the jury believed all of the State’s witnesses and disregarded the evidence defendant presented, the State failed to meet its burden of proof. We agree with defendant that some of the evidence introduced by the State failed to connect defendant to the abduction, sexual assault, and murder of Amy Schulz. The boot-impression evidence, for example, established at most that defendant’s shoe size was the same size as the boot that left the print at the scene and that defendant owned a pair of Texas Steer brand boots different from the style that left the print at the scene. In addition, the knives that were among defendant’s possessions when he was arrested in Montana, which the State put before the jury, contained no trace evidence linking defendant to the crimes. Furthermore, evidence suggesting that defendant’s vehicle was the tan-colored vehicle seen on the night of July 1, 1987, was marginalized when the State’s witness acknowledged that she told defense investigators, after seeing photographs of defendant’s vehicle, that his car was not the car she saw on July 1. Of the remaining evidence, no individual item is compelling. Nonetheless, we cannot say that the remaining evidence, taken together, and viewed in the light most favorable to the prosecution, “is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt.” People v. Smith, 185 Ill. 2d 532, 542 (1999). The State’s tire-impression evidence established that defendant’s vehicle, which had a Falls Persuader tire in the right front position, could have left the impressions at the scene. Although the credibility of the State’s tire expert, David Brundage, was called into question when he testified inconsistently with his 1987 report, the weight and credibility of his testimony were for the jury to resolve. See Milka, 211 Ill. 2d at 178. Any conflict in the evidence stemming from the disagreement between Cooper Tire’s Mark Thomas and Steve Cramer on the one hand, and David Mires on the other hand, as to the manufacturer and style of tire that left the print at the scene, and any conflict as to whether defendant changed the tires before leaving for Montana, were likewise for the jury to resolve. See Milka, 211 Ill. 2d at 178. -64- The State’s evidence also established that the numerous gold fibers found on the victim’s clothing were consistent with and could have come from the gold carpeting and upholstery in defendant’s vehicle, and that the gold fibers did not come from the victim’s environment, as represented by certain carpet standards. Evidence also established that certain red fibers found in defendant’s vehicle, which experts considered uncommon, were consistent with and could have come from the victim’s clothing, and that these same red fibers could not have come from the clothing and bedspread found in defendant’s vehicle. Although no expert could testify definitively that defendant’s vehicle was the source of the gold fibers found on the victim’s clothing or that the victim’s clothing was the source of the red fibers found in defendant’s vehicle, the State’s expert, Harold Deadman, considered the association a strong one: “Each of the fiber associations that  were reported in this case have a very small probability of occurring by chance, some more common than others. But each one has a small probability of occurring by chance. The combination of all of them occurring by chance is so small that in my opinion the probability that Amy Schulz was not in the Sutherland vehicle shortly before or after she was killed is extremely remote.” (Emphasis added.) The State’s microscopic and mtDNA evidence also established that the dog hairs recovered from the victim’s clothing could have originated from defendant’s Labrador retriever, Babe, but could not have originated from the dogs in the victim’s environment. Additionally, the State established that defendant could have been the donor of the two pubic hairs found on the victim’s buttocks, as evinced by the microscopic hair comparisons and mtDNA analysis. We acknowledge, as every DNA expert in this case has, that mtDNA evidence cannot exclude defendant’s maternal relatives–including his brothers and uncle–as donors of the pubic hairs. We also acknowledge that the State offered no evidence directly excluding defendant’s brothers and uncle as suspects. Nonetheless, “speculation that another person might have committed the offense does not necessarily raise a reasonable doubt of the guilt of the accused.” People v. Manning, 182 Ill. 2d 193, 211 (1998), citing People v. Herrett, 137 Ill. 2d 195, 206 (1990). -65- Defendant notes that the State’s own witness Tina Sutherland provided his alibi when she testified that defendant left her home on the night of the murder at 9:30 p.m. when the movie “Red Sonja” ended. The jury learned, however, that Tina Sutherland’s testimony that defendant left at 9:30 p.m. conflicted with her testimony at an hearing in 1989 (defendant’s first trial) in which she stated that defendant left at 8 p.m. or 8:30 p.m. Furthermore, the evidence was conflicted as to which movie defendant and his brother may have watched that evening. The jury resolved this conflict against defendant. Defendant also directs our attention to the expert testimony he offered which contradicted the State’s forensics findings, as well as evidence he argues demonstrates that police mishandled the investigation. We are cognizant that defendant mounted a vigorous defense, calling numerous expert and lay witnesses to spotlight what defendant regarded as weaknesses in the State’s circumstantial case. Our function, however, as a court of review is not to retry the defendant or to substitute our judgment for that of the jury. Milka, 211 Ill. 2d at 178; Evans, 209 Ill. 2d at 211. The jury heard the evidence; it was “not obligated ‘to accept any possible explanation compatible with the defendant’s innocence and elevate it to the status of reasonable doubt.’ ” Evans, 209 Ill. 2d at 212, quoting Herrett, 137",sufficiency of the evidence
+455,2686852,1,1,"In February 2012, The Florida Bar filed a complaint against Russell-Love, alleging that she engaged in misconduct in violation of Bar rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). A referee was appointed to consider the matter. Following a hearing, the referee submitted his report for the Court’s review, in which he makes the following findings and recommendations. Russell-Love and the Bar entered into a Joint Pretrial Stipulation in this case, stipulating to most of the relevant, material facts. In September 2009, RussellLove was retained by a client, a citizen of the Bahamas; Russell-Love is also of Bahamian descent, and the referee found she is a “distant cousin” of the client. Russell-Love was hired to assist the client in securing a P-1 visa, a type of visa that would allow the client to legally enter the United States to participate in professional tennis tournaments held by the United States Tennis Association (USTA). In December 2009, Russell-Love prepared and submitted a form I-129 (Petition for Nonimmigrant Worker) to the United States Citizenship and Immigration Services (USCIS) on behalf of the client; she also submitted a form G-28 (Notice of Entry of Appearance as Attorney or Representative). Following her submission, Russell-Love was notified by USCIS that the petition was insufficient, and that the name of the organization sponsoring the -2- tournament was needed. She contacted the client and learned that the tournament was sponsored by USTA. Accordingly, in February 2010, Russell-Love sent a letter to USTA, requesting that the organization provide a letter confirming that the client was expected to participate in several tournaments in the United States. On March 24, 2010, Russell-Love received a letter from Idelle Pierre-Louis, a USTA employee, stating: [The client] has requested a letter that will assist her in obtaining a Visa to enable travel to the United States to participate in professional tennis tournaments. This letter is meant just to inform the consular office that the player has requested to play the event and should not be considered as an endorsement. (Emphasis added.) The following day, Russell-Love prepared and submitted to USCIS an amended form I-129. The referee found that Russell-Love knowingly and deliberately listed the USTA as the “Company or Organization” filing the form. She listed her law office address as the contact address for the USTA. She also hand wrote Ms. Pierre-Louis’s name in the petitioner’s signature line. The signature portion of the form required the petitioner to “certify, under penalty of perjury under the laws of the United States of America, that this petition and the evidence submitted with it is all true and correct. If filing this on behalf of an organization, I certify that I am empowered to do so by that organization.” -3- Russell-Love testified that she was not empowered by the USTA to file any documents on its behalf. Russell-Love also prepared and submitted an amended form G-28. On this form, Russell-Love listed USTA in the space designated for the “Principal Petitioner, Applicant, or Respondent.” She again hand wrote Ms. Pierre-Louis’s name in the portion of the form designated for the petitioner’s signature. She also signed the form, declaring under penalty of perjury that the information provided was true and correct. Russell-Love admitted that the manner in which she completed the form G-28 indicated that she was the attorney appearing on behalf of the USTA. However, the referee did find it was of “some significance” that Russell-Love attached the March 24, 2010, letter from USTA, and she submitted a separate cover letter that identified her as the attorney representing the client. In April 2010, USCIS issued a Notice of Action, indicating that the client was approved for a P-1 visa. The Notice lists the “Petitioner” as the USTA, and the “Beneficiary” as the client. After receiving the P-1 visa, the client had some concerns about the short period of time that was allowed for her travel to the United States, and she contacted a United States Customs and Border Protection Officer for clarification. The officer asked the client to send him a copy of the immigration forms she submitted to USCIS. Upon reviewing the forms, the officer discovered that the -4- signature on the forms attributed to Ms. Pierre-Louis did not match the signature on the March 24, 2010, USTA letter. The officer then contacted USTA. On May 13, 2010, USTA responded in a letter stating: “[P]lease be advised that the USTA did not agree to petition for [the client], the USTA did not pay any applications fees for [the client’s] immigration petition and Ms. Pierre-Louis did not sign the Form I-129 included with your letter.” Based on his investigation, the customs officer reported the filing of false immigration documents to a USCIS field officer in the United States Embassy in Kingston, Jamaica. Ultimately, the client was charged with violations of the Immigration and Nationality Act, and Russell-Love was referred to The Florida Bar. The USCIS field officer testified that the client is now subject to “permanent inadmissibility” from the United States; the client may seek a waiver to allow her to enter the country, although the referee found this is a “burdensome and expensive process.” Based on these factual findings, the referee recommends that Russell-Love be found guilty of violating Bar rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee found that Russell-Love violated the rule by: misrepresenting that she was the attorney for USTA; misrepresenting that USTA was petitioning for a visa on behalf of the -5- client; and by printing the name of a USTA employee on the signature line in the I- 129 and G-28 forms. The referee did not find any aggravating factors in this case. He did find four mitigating factors: the absence of a prior disciplinary record; inexperience in the practice of law; character or reputation; and remorse. The referee also noted that Russell-Love was “overwhelmed in her personal life with her ailing parents, marital discord . . . (which necessarily also involved her young child) and difficulties involving other family members.” However, the referee found that the stress created by her personal hardships was not sufficient to excuse her misconduct. As to the sanction, the referee recommends that Russell-Love be suspended from the practice of law for ten days. The referee awarded costs to The Florida Bar, in the amount of $2,855.91. As noted, Russell-Love sought review of the referee’s report. She challenges the referee’s findings of fact, recommendation as to guilt, and the recommended ten-day suspension.",facts
+456,2355739,1,3,"We hold that Pursell was entitled to costs and attorney fees associated with the application and Final Decree because he was the prevailing party under the Water Agreement. The water court did not abuse its discretion in allowing Pursell's motion for costs and attorney fees after the fifteen-day deadline. The water court was also correct in awarding costs and attorney fees to both Sebesta and Pursell for defending Anderson's Motion to Enforce because it lacked substantial justification under section 13-17-102(4). Lastly, the water court erred in granting attorney fees and costs to Sebesta and Pursell for their work associated with Anderson's abandoned appeal and the fee issue itself. We remand to the water court to enter a judgment of the amount of attorney fees to be awarded consistent with our opinion. Further, pursuant to C.A.R. 37, we instruct that the water court calculate post-judgment interest from the date of the original judgment.",conclusion
+457,1804549,1,6,"The district court's August 18, 2000, order did not completely dispose of V & R's motion for new trial and was not a final, appealable order. Pursuant to § 25-1912(3), Haber's notice of appeal filed September 5 was of no effect. Contrary to § 25-1912(3), neither Haber nor V & R filed a new notice of appeal following the district court's September 27 order, which completely disposed of V & R's motion for new trial. Because Haber's notice of appeal was premature and no notice of appeal was filed by either party subsequent to the complete resolution of the motions for new trial, this court lacks jurisdiction to entertain the appeal and crossappeal. APPEAL DISMISSED.",conclusion
+458,2050572,1,3,"Following a hearing on Defendant's motion to suppress statements made on August 18, August 20, and September 4, 1981, the trial court, without stating its reasons, granted the motion with respect to the first two statements, but denied it with respect to the September 4 statement. Defendant argues that the court's failure to suppress the September 4 statement constitutes reversible error. Specifically, she argues that the statement was the direct result of a specific promise of immunity or leniency and was not, therefore, voluntarily given. We note initially that it is incumbent upon a defendant to object to the introduction of the challenged evidence at trial and to specify the grounds upon which the objection is premised. Here, the Defendant objected to the admission of the statement for reasons that we previously argued in chambers. Such objection is insufficient to preserve error. Nonetheless, we find that Defendant's argument is without merit. In Hendricks v. State (1978), 267 Ind. 496, 371 N.E.2d 1312, cert. denied, 436 U.S. 961, 98 S.Ct. 3079, 57 L.Ed.2d 1127, we set forth the applicable standards for review: In order for a confession to be admitted, whenever a question arises as to its voluntariness, the issue is controlled by the constitutional standard of voluntariness alike in both state and federal prosecutions. Malloy v. Hogan, (1964) 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. To be voluntary a confession `must not be extracted by any sort of threats or violence, nor be obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.' Shotwell Manufacturing Co. v. U.S., (1963) 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 quoting Bram v. U.S., (1897) 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568; Ashby v. State, (1976) [265 Ind. 316], 354 N.E.2d 192. A prior involuntary statement may render a second or subsequent statement inadmissible: `Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed.' U.S. v. Bayer, (1947) 331 U.S. 532 at 540, 67 S.Ct. 1394 at 1398, 91 L.Ed. 1654 at 1660. However, a prior involuntary confession does not render subsequent statements inadmissible per se. `But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after these conditions have been removed.' U.S. v. Bayer, supra, 331 U.S. at 541, 67 S.Ct. 1398, 91 L.Ed. at 1660. Neither does the mere advisement of Miranda rights necessarily purge the taint of circumstances surrounding the previous confession. Brown v. Illinois, (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416. In order for a subsequent confession to be admissible there must be a break in the chain of events sufficient to insulate the statement from that which went before. Clewis v. Texas, (1967) 386 U.S. 707, 87 S.Ct 1338, 18 L.Ed.2d 423; Leyra v. Denno, (1954) 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. The totality of the circumstances should be reviewed in determining the admissibility of a subsequent statement, but the U.S. Supreme Court has suggested three primary factors for scrutiny: (1) the temporal proximity of the illegality and the confession; (2) the presence of intervening circumstances; and (3) the flagrancy of the official misconduct. Brown v. Illinois, supra . Id. 267 Ind. at 499-500, 371 N.E.2d at 1313-1314. Although conceding that the trial court's suppression of the statements of August 18 and August 20 does not necessarily render the statement of September 4 inadmissible, the Defendant argues that there was no break in the chain of events from the prior confessions sufficient to insulate the confession of September 4 from the prior statements. The facts surrounding the taking of the statements as disclosed in the hearing on the motion to suppress and at trial are these: On August 18, 1981, the Defendant signed an immunity agreement (see Issue III) and gave a statement to the police. On August 20, she and her sister Margaret gave an additional statement. Before giving this statement, the Defendant asked Officer Demlow if the immunity agreement was still in effect. He told her that he did not know and would have to check with Prosecutor Doboze. He stated that he told her that, without checking with Doboze, he would have to say it was not still in effect. He then offered to contact Doboze. The Defendant, however, said that that was not necessary, left with her sister for about fifteen to twenty minutes, and then returned to the police station where she gave her statement, after being advised of her rights and signing a waiver form. Both she and Margaret told police that Rick Shelton had killed Charles Abner. Rick was then arrested and on August 31 and September 1, he confessed to the murder of Charles Abner. Thereafter, the Defendant was charged with conspiracy to commit murder and was arrested at approximately 7:30 a.m. on September 4, 1981. She was transported to the Washington County Jail where police gave her the Miranda advisements and she signed a waiver of rights form. She gave the challenged incriminating statement at 9:42 a.m. The immunity agreement was never discussed on September 4, 1981. Applying the standards set forth in Hendricks, we find that there was a break in the chain of events sufficient to insulate the September 4 statement from the two prior statements. First, she had reason to know that the immunity agreement was not in effect on September 4. In addition, fifteen (15) days had transpired between the date of her prior statement, which was suppressed, and the challenged statement. Upon being arrested, she was advised of the charges against her and was fully advised of her rights. She also signed a waiver of rights form. In the interim between August 20 and September 4, several events occurred. Her mother, Martha Abner, was arrested in connection with the crime, and Rick Shelton was arrested and confessed. Moreover, we do not find any official misconduct. Under these circumstances we find that the trial court had sufficient evidence upon which to conclude that the Defendant's statement of September 4, 1981 was voluntary. See Holleman v. Duckworth (7th Cir.1983), 700 F.2d 391, 396-397, cert. denied, ___ U.S. ___, 104 S.Ct. 116, 78 L.Ed.2d 116; Holleman v. State (1980), 272 Ind. 534, 538-539, 400 N.E.2d 123, 126; Gutierrez v. State (1979), 271 Ind. 639, 646-647, 395 N.E.2d 218, 223-224.",issues
+459,6497232,1,1,"Wilkinson Development, Inc. (Wilkinson), filed an action for specific performance of a real estate contract concerning the purchase of commercial real estate located in Lexington, Nebraska. The district court found in favor of Wilkinson and against the seller, Ford & Ford Investments (Ford). PSK, LLC, a subsequent purchaser of the real estate in question, then filed a motion to vacate the decree of specific performance and also sought an order of joinder. The district court denied that motion. PSK appeals. We affirm.",introduction
+460,2594542,1,1,"In 1998, appellant and her friend Corey Mack took their vehicle into Automatic Transmission Specialists (ATS) for repairs. After the vehicle had been repaired, appellant entered ATS' closed lot and absconded with the vehicle without having paid the $811.42 for services rendered. Appellant was subsequently charged with felony theft of ATS' services. After her arrest, appellant posted bond. One of the conditions of her release was a prohibition against leaving Laramie County without the prior approval of the court. Appellant eventually reached a plea agreement wherein the prosecutor agreed to recommend probation, conditioned on a presentence investigation report (PSI). Appellant's sentencing was scheduled for October 9, but she did not appear. In blatant violation of the terms of her bond, appellant had left Laramie County for Sweetwater County, Wyoming without obtaining the prior approval of the court. Even more damaging to appellant, while in Green River appellant and Mack committed a felony, for which both were subsequently convicted. Upon resolution of the proceedings in Sweetwater County, appellant was returned to Laramie County for sentencing on the subject offense. Meanwhile, appellant's PSI had revealed a significant criminal history, including outstanding warrants from no less than three other states. Based on this history and appellant's escapades while out on bond, the prosecutor recommended a term of incarceration. The district court judge apparently agreed, and a sentence of five to seven years, to run consecutively to appellant's sentence for the Sweetwater County incident, was imposed. Appellant now appeals her sentence.",facts
+461,4561039,1,1,"The State Bar of Arizona entered a “Final Judgment and Order” regarding the respondent, Christine M. Schild, on April 17, 2020. The Counsel for Discipline of the Nebraska Supreme Court, the relator, filed a motion for reciprocal discipline against the respondent. We grant the motion for reciprocal discipline and impose a suspension of 6 months and 1 day.",introduction
+462,2813079,1,1,"¶3 Rhonda L. Alexander and Joseph Dean Alexander (Appellee) married on May 5, 1973. After nearly forty years of marriage, on October 23, 2012, Ms. Alexander filed a Petition for Dissolution of Marriage on the ground of incompatibility. Appellee filed his Answer to the Petition on March 28, 2013, agreeing that the two were incompatible and that they should be granted a divorce. ¶4 On July 23, 2013, before the marital property had been divided, Ms. Alexander filed a Motion for a Grant of Divorce, wherein she explained she had been diagnosed with stage-four lung cancer and had only a short time to live. Appellee objected to this motion, arguing that statutory law requires the dissolution of marriage take place at the same time as the division of marital assets--thus the court should wait to grant the divorce until the property had been divided. ¶5 In Ms. Alexander's reply, she stated that she and Appellee had accumulated millions of dollars in properties during the marriage, most of which were titled under various corporations in Appellee's name. Additionally, she alleged that Appellee had withdrawn over $200,000 from an account titled solely in her name, and that Appellee was trying to force her into a quick settlement by delaying the divorce process so that she may have to face the possibility of passing away before she can have her day in court. ¶6 At the hearing over the Motion for a Grant of Divorce on August 20, 2013, the judge pronounced in court that the two were divorced from the other henceforth. After granting the dissolution of marriage, the court memorialized the decision in a handwritten Court Minute, which the judge and both parties' attorneys signed, and filed it with the court clerk. The court ordered the parties to mediation within five days to resolve their property issues, and to present a journal entry to the court within ten days. Over the following weeks, neither party presented a journal entry to the court. ¶7 On October 10, 2013, Ms. Alexander passed away. Eight days later Appellee filed a motion to dismiss the action, claiming that the death of a party to a divorce proceeding abates the cause of action and deprives the trial court of jurisdiction. Ms. Alexander's successors, Tiffany McClung and Lacey Hart (collectively, Appellants), filed a Response. After various technical delays, the trial court granted Appellee's Motion to Dismiss and the Court of Civil Appeals affirmed. The matter now comes before this Court for review.",facts
+463,2205488,1,3,"¶ 11 The interpretation of a statute is a question of law that we review for correctness without any deference to the legal conclusions of the district court. Green River Canal Co. v. Olds, 2004 UT 106, ¶ 16, 110 P.3d 666. ¶ 12 The decision to certify a claim as a class action is `within the sound discretion of the district court.' Houghton v. Dep't. of Health, 2008 UT 86, ¶ 15, 206 P.3d 287 (quoting Richardson v. Ariz. Fuels Corp., 614 P.2d 636, 639 (Utah 1980)). A trial court's decision on class action status will be reversed only when it is shown that the trial court misapplied the law or abused its discretion. Call v. City of West Jordan, 727 P.2d 180, 183 (Utah 1986).",standard of review
+464,901703,1,2,"[¶ 12.] On appeal, we will affirm summary judgment when the facts and the law are clear and no genuine issues of material fact exist. Citibank South Dakota, N.A. v. Schmidt, 2008 SD 1, ¶ 8, 744 N.W.2d 829, 832 (citing Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 11, 707 N.W.2d 123, 126). Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact. SDCL 15-6-56(c). [T]he benefit of any doubt about whether there is a material issue of fact goes to the nonmoving party. Trammell v. Prairie States Ins. Co., 473 N.W.2d 460, 462 (S.D. 1991) (citations omitted).",standard of review
+465,2764119,1,1,"United Technologies Corp., a Delaware corporation, appeals from a judgment by the Court of Chancery holding that the court did not have the authority to impose a specific condition on a books and records inspection under § 220(c) of the Delaware General Corporation Law (DGCL). United Technologies had sought to restrict the use of any information garnered from an inspection by a shareholder, Lawrence Treppel, to legal action in a Delaware court. The Court of Chancery denied the corporation‟s request, determining that such a limitation “is not the type of restriction that 220(c) seeks to impose.”1 On appeal, United Technologies argues that the court does have the authority, under the statute itself and the line of cases interpreting it, to impose the requested limitation, and the court erred by not doing so in this case. Because the plain text of § 220 provides broad power to the Court of Chancery to condition a books and records inspection, the court erred in determining that it lacked authority under the statute to impose the requested restriction. We therefore reverse on that issue and remand so that the Court of Chancery can consider in the first instance whether, in its discretion, it should impose such a restriction based on the specific facts in this case.",introduction
+466,2601903,1,1,"Freddie Carter was injured on the job in 1992. Since then he has suffered from a series of health problems and is currently unable to work. He appeals the Alaska Workers' Compensation Board's denial of his request for Permanent Total Disability (PTD) benefits and its refusal to grant him additional reemployment benefits. He also appeals the superior court's denial of his claim for additional interest, attorney's fees, and costs. Because substantial evidence did not support the board's decision that Carter is not entitled to PTD benefits and because Carter is entitled to additional interest on his reemployment benefits, we reverse and remand.",introduction
+467,1633143,1,1,"At the outset, we must distinguish between the power of our Court to control practice and procedure in the courts of this state, and the power of the Legislature to vest jurisdiction in the courts of this state. Const 1963, art 6, § 13 provides: The circuit court shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court. The phrase in all matters not prohibited by law means that the Legislature may limit by statute that constitutionally vested plenary jurisdiction of the circuit court. Under MCLA 600.605; MSA 27A.605, the original jurisdiction of the circuit court is defined as follows: Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state. The constitutionally vested plenary jurisdiction of the circuit court has been limited by the jurisdictional provision of the district court as found in MCLA 600.8301; MSA 27A.8301 which provides: The district court shall have exclusive jurisdiction in civil actions when the amount in controversy does not exceed $10,000.00. [2] The rule making power of the Supreme Court is derived from Const 1963, art 6, § 5 which provides: The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state. The distinctions between law and equity proceedings shall, as far as practicable, be abolished. The office of master in chancery is prohibited. Pursuant to the grant of authority in the 1963 Constitution and its predecessor, Const 1908, art 7, § 5, [3] our Court has promulgated general court rules. GCR 1963, 208.1 provides the procedure in class action cases. [4] However, GCR 1963, 208.1 does not create jurisdiction in the circuit courts. It only provides the rules of procedure if circuit court jurisdiction already exists. Our Court has dealt with the distinction between rules of procedure and jurisdiction in numerous cases. In Shannon v Ottawa Circuit Judge, 245 Mich 220 (1928), our Court was faced with a local procedural rule which inhibited the making of contracts between attorneys and clients and substantially affected the chances of certain plaintiffs to successfully prosecute a lawsuit. This Court invalidated the local court rule and quoted from Washington-Southern Nav Co v Steamboat Co, 263 US 629, 635; 44 S Ct 220; 68 L Ed 480 (1924) where the Court stated: `The function of rules of court is to regulate the practice of the court and facilitate the transaction of its business. `A rule of court cannot enlarge or restrict jurisdiction, or abrogate or modify the substantive law.' 245 Mich 223. In Ray Jewelry Co v Darling, 251 Mich 157, 160 (1930), the Court stated: It may be conceded that the common pleas court was created in pursuance of legislation and derives all its power and authority from it. It may not expand or contract, enlarge or diminish, the jurisdiction conferred upon it by rule or otherwise. (Emphasis added.) It is thus well settled that the jurisdictional requirements of MCLA 600.8301; MSA 27A.8301 and MCLA 600.605; MSA 27A.605 are dispositive of where the plaintiffs' action must be brought in this case. [5] GCR 1963, 208.1 does not control the jurisdictional issue in this case. If plaintiffs' action was properly brought in the circuit court, they can invoke GCR 1963, 208.1(3) and proceed as a class action. If the action was not properly brought in the circuit court, GCR 1963, 208.1(3) cannot leap the jurisdictional barrier and create circuit court jurisdiction where none existed. Thus, we are faced with the issue of whether the claims of each plaintiff, admittedly less than the $3,000 jurisdictional requirement which existed at the time of the filing of this cause of action [6] may be aggregated to achieve circuit court jurisdiction. This is a question of first impression in our state. Defendants cite two cases which they assert stand for the proposition that claims may not be aggregated to achieve circuit court jurisdiction, Henderson v Detroit & M R Co, 131 Mich 438 (1902); Barker v Vernon Twp, 63 Mich 516 (1886). Barker stated as dicta that each party joined as a plaintiff had to individually meet the jurisdictional requirements. 63 Mich 520. The statement in Henderson seems to imply that aggregation is not permissible, but does not explicitly state that contention. Because the holdings in these cases did not turn on the question of aggregation, and because they were decided before our Court recognized the propriety of class actions in Detroit v Detroit United Railway, 226 Mich 354 (1924), these cases are clearly not dispositive of the issue involved. We hold that the aggregation of claims will not be permitted as a mode of obtaining circuit court jurisdiction in class action cases. We find the reasoning of the United States Supreme Court in Snyder v Harris, 394 US 332; 89 S Ct 1053; 22 L Ed 2d 319 (1969) persuasive. The Court was dealing with two cases. In each, the plaintiff sued for himself and all others similarly situated. In each, the plaintiff alleged personal damages insufficient to sustain Federal jurisdiction and requested the Court to aggregate the various claims. In denying the request, the Court stated (p 335): The traditional judicial interpretation    has been from the beginning that the separate and distinct claims of two or more plaintiffs cannot be aggregated in order to satisfy the jurisdictional amount requirement. Aggregation has been permitted only (1) in cases in which a single plaintiff seeks to aggregate two or more of his own claims against a single defendant and (2) in cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest.    Spurious class actions    were in essence merely a form of permissive joinder in which parties with separate and distinct claims were allowed to litigate those claims in a single suit simply because the different claims involved common questions of law or fact. In such cases aggregation was not permitted: each plaintiff had to show that his individual claim exceeded the jurisdictional amount. This refusal was based upon a settled interpretation of the phrase matter in controversy which is similar to the phrase amount in controversy used in MCLA 600.8301; MSA 27A.8301 to define the upper dollar limit of district court jurisdiction. Plaintiffs have argued that following Snyder will retard if not eliminate the use of the class action device in matters such as consumer protection suits. We share the plaintiffs' concern but not their conclusion. Such suits commonly present traditional forms of equitable claim which permits entry into the circuit courts. [7] Once properly within that domain, a class action will be appropriate. An example is Bond v Ann Arbor School Dist, 383 Mich 693 (1970), where two plaintiffs brought suit on behalf of themselves and all parents of school children within the district. They sought a judgment declaring certain fees and charges to be unconstitutional, an injunction prohibiting any further charges and a refund of all those fees and charges collected since the suit was instituted. As to the propriety of the class action, this Court stated (p 702): The Court of Appeals found plaintiffs' action to be a proper class suit. The action was treated as a class suit by the trial court. If the class action was properly brought, the fact that the fees to be recovered are small for each member of the class, or that expense may be entailed in making a refund, or that the funds have been used by defendant, ought not to bar recovery. It is in the very nature of a class action that the claim of each individual member of the class may be such as to alone scarcely warrant pursuit of repayment. If an action is successful, the fruits of the action should not be denied to the class unless the reasons for denial are most cogent. We do not perceive here such difficulties as would merit denying recovery. This situation was one peculiarly adapted to a class suit. The claim of each member of the class alone did not warrant an action, all members were affected in like manner by the action of defendant, and the issue was one that demanded legal clarification. The plaintiffs in the instant case, unlike those in Bond, have pursued a purely legal remedy. Also instructive is Justice LEVIN'S opinion in Pressley v Wayne County Sheriff, 30 Mich App 300 (1971). Plaintiff sued for a writ of mandamus on behalf of himself and all others similarly situated. A statute permitted those accused of traffic offenses to post bond by depositing ten percent of the amount of bail set by the court. Some judges claimed the right to deny this benefit to certain offenders by also requiring a surety deposit. The circuit court granted the relief sought but only as to the particular plaintiff. In indicating that relief should have been extended to all others with the class, Justice LEVIN offered the following quotation from Montgomery Ward & Co, Inc v Langer, 168 F2d 182, 187 (CA 8, 1948), (p 318): `The class action was an invention of equity [citation omitted], mothered by the practical necessity of providing a procedural device so that mere numbers would not disable large groups of individuals, united in interest, from enforcing their equitable rights nor grant them immunity from their equitable wrongs.' Justice LEVIN then proceeded to list some relevant factors (p 320): As in Ann Arbor School District, the claim of each member of the class might not warrant an action; surely the attorneys representing Pressley would have found it simpler to obtain a $50 surety bond than to commence and prosecute this litigation. All members of the class Pressley represents are affected in like manner by the actions he complains of and the issue is one that demands legal clarification. The adaptation of the class action to the protection of the rights of indigent accused persons is a sensible extension of this procedural device which was fashioned in equity to assure that important rights would not go unvindicated. In Adderly v Wainwright (MD Fla, 1968), 46 FRD 97, the court ruled that habeas corpus applicants attacking the Florida death penalty in capital cases could maintain a class action. There were in excess of 50 prisoners in the class sought to be represented but, as here, the size of the class was subject to constant fluctuations. The court declared that both the size of the class sought to be represented and its lack of stability made joinder of all members impracticable. There were common questions of law and fact involving the death penalty and Florida's practice in capital cases. The coincidence of the interests of the representatives and the other members of the class was thought to insure that the interest of the class would be adequately and fairly protected by the representative parties. It should be clear that our decision today does not speak in terms so broad as to foreclose legitimate class action claims. The class action device remains a valuable and necessary vehicle for obtaining adequate relief in certain situations. Amicus Curiae also cite numerous cases in which circuit court jurisdiction was allowed without the minimal jurisdictional amount being present. They contend that these cases are support for the proposition that Michigan has recognized aggregation of claims or, at the very least, the right to prosecute class actions in circuit court despite the jurisdictional amount. However, these cases merely reinforce the views expressed above. In all of these cases, the plaintiff asserted a separate basis of jurisdiction from the minimum amount of damages. Thus, in Alan v Wayne County, 388 Mich 210 (1972), plaintiff had filed a complaint for declaratory judgment and an injunction. It is clear that the circuit court is the only court that has jurisdiction to grant injunctive relief. The district court by the terms of MCLA 600.8301; MSA 27A.8301 does not deprive the circuit court of jurisdiction in cases involving equitable relief. Plaintiff thus had a separate basis of circuit court jurisdiction and once the plaintiff was in circuit court, he had the right to utilize any procedural rule including GCR 1963, 208.1. All of the other cases are likewise distinguishable. [8] Finally, we must briefly answer the assertions of the Amicus Curiae that since all class actions are equitable in nature, they must be maintained in circuit court. We do not accept this assertion. This proposition is based on the fact that a class action is a distinct form of relief such as an injunction or writ of mandamus. However, class actions are merely procedural devices to expedite proceedings in certain cases. The type of class action involved in this case, the so-called spurious action (see GCR 1963, 208.1[3]) is actually a form of permissive joinder of parties. It is not a separate cause of action and the rules under GCR 1963, 208.1 do not create a new cause of action. Thus, we hold that the Court of Appeals was incorrect in permitting the aggregation of claims. The judgment of the Court of Appeals is reversed and the judgment of the trial court dismissing the action is affirmed. Costs to defendant.",jurisdiction
+468,2570882,1,1,"¶ 2 Hird was admitted to the practice of law in Oklahoma in 1980. After being admitted, Hird was in private practice for about three years, was general counsel for a corporation for about two years, and then returned to private practice. When he was about 30 years of age, Hird was employed by Caprock Savings and Loan (Caprock). At Caprock, he simultaneously held the titles of executive vice-president, general counsel, chief lending officer, and secretary of the board. ¶ 3 While Hird was employed at Caprock, the real estate market took a downward turn. In order to bolster the financial status of Caprock during this period, Hird became involved in a fraudulent scheme to make Caprock appear to be better capitalized than it actually was. Because of the scheme, Caprock's precarious financial situation was not apparent or easily discoverable causing the Federal Examiners to be misled about Caprock's financial condition. The loss to Caprock as a result of the scheme was in the tens of millions of dollars. When Caprock became insolvent, the Federal Savings and Loan Insurance Corporation made payments to Caprock's depositors of millions of dollars. ¶ 4 Hird admits that he personally profited about $260,000.00 through the transactions related to the fraudulent scheme. After he left Caprock and returned to private practice, Hird received $150,000.00 retainer from one of the other parties to the scheme. He did not perform any work for the party. In 1995, Hird filed for bankruptcy, and his debts were discharged in 1996. ¶ 5 Prior to Caprock's collapse, Hird resigned from Caprock and returned to private practice. In April of 1991, an indictment was filed against Hird and several other defendants. In May of 1992, Hird pled guilty to one count of bank fraud and one count of money laundering. Based on Hird's cooperation he was sentenced to 45 months incarceration rather than the 63 to 78 months under the federal sentencing guidelines. Under the guidelines, Hird was subject to a fine ranging from $203,062.00 to $500,000.00. The fine and restitution were waived based on Hird's cooperation with the federal government. ¶ 6 In June 1992, Hird notified the OBA of his conviction and tendered his resignation. A few days later, Hird surrendered himself to the custody of the Federal Bureau of Prisons. On September 28, 1993, this Court approved Hird's resignation pending disciplinary proceedings. State ex rel. Oklahoma Bar Ass'n v. Hird, 1993 OK 120, 863 P.2d 1160. ¶ 7 During his incarceration, Hird volunteered as a tutor for Graduate Equivalence Degree (GED) classes and teaching Bible classes. In February of 1994, the United States Attorney filed a motion to reduce Hird's sentence by 17 months. As a result of the United States Attorney's motion being granted, Hird's sentence was further reduced to 27 months imprisonment. Hird was placed on three years probation which he successfully completed after serving 24½ months incarceration. ¶ 8 After his release from prison, Hird returned to Tulsa and worked as a law clerk for his former law partner for about one year. Then he worked at Transvoc, Inc., an employment placement service for the developmentally disabled, where he became a program coordinator. Hird resigned from his job at Transvoc in anticipation of a state job. When the state job did not materialize, Hird registered with a temporary employment agency. He was placed with Oklahoma Fixture Company as a glass packer. In March 1997, Oklahoma Fixture Company offered Hird a permanent job as the human resource director. Then in August of 1998, Hird was promoted to human resource director of the parent company. ¶ 9 Hird admits his responsibility for the bank fraud and money laundering. His witnesses testified that he understands what he did was wrong and that he accepts responsibility for his actions. They also testified that Hird has been humbled by the consequences resulting from his actions. ¶ 10 According to the record, particularly the testimony of the witnesses, Hird has been a model citizen since his release from prison. He has been open about his conviction and incarceration with his employers and volunteer organizations. As trustee for the Carpenters and Millworkers Joint Apprenticeship Program, he is responsible for the oversight of funds and activities of the apprenticeship program. Hird has also been on the Board of Directors of Wright Christian Academy for the last five years and holds a leadership position in his church. Hird has not been arrested or cited for any violations of the law since his release from prison. Duane Walker, Executive Vice-President of Oklahoma Fixtures; Jeff Brown, Administrator of Wright Christian Academy; Stephen Andrew, a lawyer who represents Oklahoma Fixture in labor relation matters; Richard Wright, a lawyer for whom Hird worked as a law clerk; and, by affidavit, Ronnie Line, Chairman and President of Oklahoma Fixture testified to Hird's trustworthiness, his honesty, his fairness, and the respect in which they hold him. All the witnesses testifying in his behalf think highly of Hird, even knowing of this conviction and believe that he should be readmitted to the practice of law. ¶ 11 At the time of Hird's resignation from the OBA, he did not have any clients and had not practiced law for a year. Hird did not file an affidavit within the twenty-day limit as required by rule 9.1 of the Rules Governing Disciplinary Proceedings stating that he had notified all his clients, listing the clients, and listing the courts and agencies before which he was admitted to practice. The affidavit was not filed until October 22, 1998, less than one month before Hird filed his petition for reinstatement on November 16, 1998.",facts
+469,1654936,1,1,"This is a consolidated appeal from a judgment that denied Healthcare Services of the Ozarks, Inc., d/b/a Oxford Healthcare (Oxford) recovery of damages on breach of contract claims in separate actions brought against former employees Pearl Walker Copeland and LuAnn Helms. The judgment, however, granted Oxford injunctive relief to enforce covenants not to compete executed by Copeland and Helms. The judgment also denied separate counterclaims by Copeland and Helms against Oxford that sought damages for tortious interference with business relationships with their new employer ASA Healthcare, Inc., d/b/a Integrity Home Care (Integrity), and a declaration that the covenants not to compete were unenforceable. The judgment is affirmed in part and reversed in part, and the case is remanded.",introduction
+470,6326872,1,2,"The Elkhorn Valley Sportsman Club applied for a conditional use permit to operate a trap and skeet shooting range. A public hearing was held, after which the Board granted the application on September 15, 2020. The Kowalewskis appealed that decision to the district court on October 14, 2020. With that notice of appeal, the Kowalewskis also deposited with the county clerk for Madison County a $100 check as a cash bond for costs, as well as a check for $82 payable to the Madison County District Court intended to cover the filing fee. In fact, the filing fee to perfect an appeal from the Board to the district court was, at that time, $83. Day 30, for purposes of filing an appeal, was October 15, 2020. According to the facts as found by the district court, on October 16 (or day 31), an additional $1 was paid to the clerk of the district court. The record does not reveal any request or attempt by the Kowalewskis asking the county clerk to apply the money from the bond to the filing fee. On December 2, 2020, the Kowalewskis filed a petition detailing their allegations that the Board erred in granting the conditional use permit. The next day, December 3, the Board filed a motion to dismiss on the basis that the docket fee had not been timely paid. On December 4, the Elkhorn - 814 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports KOWALEWSKI v. MADISON CTY. BD. OF COMRS. Cite as 310 Neb. 812 Valley Sportsman Club filed its own motion to dismiss on the same grounds. The district court held a hearing on the motions to dismiss. During that hearing, the court was asked to take, and took, judicial notice of its own file, “particularly those notations from the clerk concerning the filing fee and the notice filed by counsel.” Following the hearing, the district court dismissed the appeal for failure to pay the required docket fee. This appeal followed. ASSIGNMENTS OF ERROR The Kowalewskis assign that the district court erred in (1) sustaining the motions to dismiss, (2) dismissing the appeal, and (3) considering Elkhorn Valley Sportsman Club’s motion to dismiss.",facts
+471,2593661,2,9,"¶ 65 Mead next contends the evidence presented at trial was insufficient to support a finding of guilt beyond a reasonable doubt. We will reverse on this ground `only when the evidence . . . is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt . . . .' State v. Verde, 770 P.2d 116, 124 (Utah 1989) (quoting State v. Booker, 709 P.2d 342, 345 (Utah 1985)) (further quotations omitted). Put another way, we will overturn a conviction for insufficient evidence when it is apparent that there is not sufficient competent evidence as to each element of the crime charged for the fact-finder to find, beyond a reasonable doubt, that the defendant committed the crime. State v. Layman, 1999 UT 79, ¶ 12, 985 P.2d 911.
+¶ 66 As to the criminal solicitation count, Mead argues the evidence presented cannot support the jury's finding of guilt beyond a reasonable doubt because the only evidence to support the jury's verdict is Hendrix's testimony. Mead contends Hendrix's testimony cannot support the verdict because Hendrix purportedly acted as Mead's accomplice, warranting [that] added scrutiny be given to his testimony, and because Hendrix was offered significant favorable treatment for his own numerous criminal problems in exchange for his testimony against [Mead]. We disagree. ¶ 67 Even if we were to accept Mead's contentions, as we recently stated, we do not sit as a second trier of fact: It is the exclusive function of the jury to weigh the evidence and to determine the credibility of the witnesses. So long as there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime can reasonably be made, our inquiry stops. State v. Boyd, 2001 UT 30, ¶ 16, 418 Utah Adv. Rep. 8 (quotations omitted). In this case, the State presented some evidence to satisfy each element of the criminal solicitation count. It is the jury's role to determine the weight and credibility of this evidence. Id. Accordingly, Mead has provided us no reason to second guess the jury's determination. Id.
+¶ 68 We now turn to Mead's contention that the evidence was insufficient to support the jury's finding of guilt beyond a reasonable doubt as to the murder charge. Mere weeks before Pamela Mead's death, David Mead offered Hendrix $30,000 $40,000 to kill her. Further, Mead told both Walls and Simon he would kill his wife, have an alibi, and make it look like an accident. He told Hendrix this would happen after he had played the role of a good husband for a year to allay any suspicions of his involvement. While Mead had apparently been working on the pool for some time, he hastily completed it shortly after Pamela Mead's foot surgery. The backyard lights were in working order at the time of the murder; however, the bulbs had been unscrewed slightly, leaving the backyard dark. Moreover, Mead began dismantling the pool before the police even arrived, and his brothers completed this the next day. Additionally, the allegation that Mead was motivated to kill his wife for the life insurance money was bolstered by Mead's own prior statements and the fact that he began his efforts at recovering the insurance proceeds the day after his wife's death. We conclude there was sufficient competent evidence as to each element of the crime charged for the fact-finder to find, beyond a reasonable doubt, that the defendant committed the crime. Layman, 1999 UT 79, ¶ 12, 985 P.2d 911. [11]",sufficiency of the evidence
+472,6326786,1,5,"As a threshold jurisdictional matter, we briefly address which of these two consolidated appeals, derived from two separate notices of appeal but purporting to appeal from the same underlying order of renewal of the protection order, is properly before us. Section 25-1912(3) provides in relevant part that the running of the time for filing a notice of appeal shall be terminated as to all parties by a timely motion for a new trial or motion to alter or amend a judgment. It provides further, “When any 2 Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019). - 102 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 motion terminating the time for filing a notice of appeal is timely filed by any party, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before or after the timely filing of the terminating motion.” 3 Instead, “A new notice of appeal shall be filed within the prescribed time after the entry of the order ruling on the motion.” 4 The first notice of appeal, resulting in what is presently docketed as case No. S-21-478, was premature. It was filed after the terminating motion for new trial or to alter or amend and before the court announced its decision on that motion. Pursuant to § 25-1912(3), it had no effect. As such, case No. S-21-478 is dismissed for lack of jurisdiction. The notice of appeal resulting in what is presently docketed as S-21-641 was timely filed. Our opinion herein addresses the merits of that appeal.",jurisdiction
+473,4518190,1,3,"STCA Statute of Limitations Not Met It is undisputed that Saylor’s May 30, 2017, lawsuit was filed more than 6 months after his claim was denied by the State Claims Board on October 19, 2012, and thus, the lawsuit was filed outside the statute of limitations set forth in § 81-8,227(1). Before the district court, and again in the appellate briefing, the parties focused their arguments primarily on whether Saylor could satisfy the requirements of the savings clause in § 25-201.01. But at oral argument, the defendants below argued for the first time that there is no circumstance under which the savings clause of § 25-201.01 could apply to an action governed by the STCA, because the plain language of § 81-8,227(5) provides: “This section and section 25-213 shall constitute the only statutes of limitations applicable to the [STCA].” We ordered supplemental briefing on the issue, which presents a question of statutory interpretation. [7-9] Statutory language 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 unambiguous.11 It is not within the province of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, or unambiguous out of a statute.12 A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.13 When it comes to determining the statute of limitations governing commencement of STCA actions, the plain language of § 81-8,227(5) identifies just two applicable statutes: §§ 81-8,227 and 25-213. Saylor concedes that the plain 11 JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71 (2019). 12 Id. 13 Id. - 787 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports SAYLOR v. STATE Cite as 304 Neb. 779 language of § 81-8,227(5) prevents courts from applying any other statute of limitations to a STCA claim. But he contends that § 25-201.01 is not a statute of limitations, but, rather, is a savings clause. According to Saylor, “a statute of limitations is not a savings clause, and a savings clause is not a statute of limitations.”14 Saylor’s argument invites us to construe the term “statutes of limitations” in § 81-8,227(5) to exclude statutes that extend the statutory time for filing under certain circumstances. Saylor’s argument ignores the fact that both statutes referenced in § 81-8,227(5) include provisions that could be characterized as savings clauses. Specifically, § 81-8,227(1) and (3) each authorize the 2-year statute of limitations to be extended for 6 months under certain circumstances. Section 81-8,227(4) authorizes a 90-day extension of the time to begin suit under the STCA when a request for review is filed under the Nebraska Hospital-Medical Liability Act. And finally, § 25-213 tolls the time period for commencing an action under the STCA for persons under certain disabilities at the time their claim accrues. Given the nature of the statutes described in § 81-8,227(5) as “statutes of limitations,” we see no principled reason to construe the term to refer only to statutes prescribing the time period for bringing an action, but not to statutes extending the prescribed time for commencing an action. [10,11] Statutes authorizing suits against the State are to be strictly construed because such statutes are in derogation of the State’s sovereign immunity.15 The Legislature expressly states in § 81-8,227(5) that §§ 81-8,227 and 25-213 “shall constitute the only statutes of limitations applicable to the [STCA].” Because § 25-201.02 is not one of the applicable statutes listed in § 81-8,227(5), it cannot be applied to extend the time period for bringing an action under the STCA. Saylor 14 Supplemental brief for appellant at 3. 15 SID No. 1 v. Adamy, 289 Neb. 913, 858 N.W.2d 168 (2015). - 788 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports SAYLOR v. STATE Cite as 304 Neb. 779 does not contend that any other provision in § 81-8,227 or § 25-213 applies to extend the time period for commencing his STCA action, and we therefore agree with the district court that, as a matter of law, Saylor’s STCA claim is time barred. Additional Assignments Because the foregoing analysis shows that Saylor’s STCA claims were time barred, we need not address his assignments of error related to other rulings made by the district court. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.16",analysis
+474,2074316,3,1,"Shane believes that his convictions are not supported by sufficient evidence. When reviewing a conviction for sufficiency of the evidence, this Court looks to the evidence most favorable to the State and all of the reasonable inferences to be drawn from such evidence. See Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998) (citing Deckard v. State, 670 N.E.2d 1, 3 (Ind.1996)). We will affirm the original sentence unless there is no way a reasonable trier of fact could have found Defendant guilty. We do not reweigh the evidence or assess the credibility of witnesses, but merely look to the evidence to determine whether there was substantive probative evidence to support the judgment. See id. (citing Minter v. State, 653 N.E.2d 1382, 1383 (Ind.1995)).",sufficiency of the evidence
+475,2630700,1,5,"BCB also claims that a district court conducting an apportionment hearing in a condemnation case has no jurisdiction to make an award for anything other than one for the fair market value of the real property interest condemned; damages for lost business and profits are excluded. Perhaps more specifically, it claims that [e]ven . . . where a private contract or lease is at issue, the district court must follow the [Eminent Domain Procedure] Act and may not deviate therefrom. As a result, according to BCB, the claim for lost profits is totally unrelated to just compensation for fair market value and such a claim by Payless must be brought in a lawsuit separate and apart from this eminent domain action. We reject BCB's arguments. As discussed previously, K.S.A. 26-517, a part of the Eminent Domain Procedure Act, expressly authorizes the court to resolve a dispute among parties as to apportionment of the award. It states: In any action involving the condemnation of real property in which there is a dispute among the parties in interest as to the division of the amount of the appraisers' award or the amount of the final judgment, the district court shall, upon motion by any such party in interest, determine the final distribution of the amount of the appraiser's award or the amount of the final judgment. (Emphasis added.) We have held that if various parties in interest cannot agree among themselves as to the division of that [appraisers' award], the court allocates the award pursuant to K.S.A. 26-517. City of Overland Park v. Dale F. Jenkins Revocable Trust, 263 Kan. at 472. Based upon the clear language of the statute and our interpretive case law, we conclude the district court had jurisdiction in the present proceeding to apportion the award in accordance with Section 14.03. To hold otherwise, as BCB argues, would require Payless to file a separate proceeding based upon contract. We have thoroughly reviewed other arguments by BCB and conclude they have no merit. Affirmed.",jurisdiction
+476,1769196,1,1,"Oscar Glover was convicted of two counts of possessing drugs with intent to distribute in violation of section 195.211. [2] The convictions were affirmed on appeal. State v. Glover, 98 S.W.3d 917 (Mo.App. 2003). Glover then filed this motion pursuant to Rule 29.15. He failed to sign the motion or the amended motion. His amended motion alleged ineffective assistance of counsel: (1) in trial counsel's failure to object to the prosecutor's closing argument that vouched for a witness' testimony and (2) in appellate counsel's failure to raise on appeal the trial court's failure to sustain his objection to testimony concerning a videotape described as showing Glover engaging in sexual intercourse. The motion court denied relief. Glover appeals. On appeal, the state raised the issue of Glover's lack of signature. Glover promptly filed a signed motion in the motion court. Glover's lack of signature did not affect the motion court's jurisdiction. The motion court's judgment is affirmed. THE LACK OF A SIGNATURE ON A POST-CONVICTION MOTION IS NOT A JURISDICTIONAL DEFECT Glover's motion and amended motion were not signed by him. The defect was not brought to his attention until the initial respondent's brief was filed on appeal. When so informed, Glover promptly filed a properly signed motion with the motion court, and a certified copy was sent to the court of appeals. When originally adopted, Rule 29.15 required the movant to verify the motion and any amended motion. Rule 29.15(b), (d) and (f) (1988). The verification requirement was an essential element of the post-conviction motion. Any unsigned, unverified motion failed to invoke the motion court's jurisdiction to grant relief. Kilgore v. State, 791 S.W.2d 393, 395 (Mo. banc 1990). Gradually, through court rulings and amendments to the rule, the consequences of failing to sign a post-conviction motion have become less severe. State v. White, 873 S.W.2d 590, 594 (Mo. banc 1994) (signature of movant is sufficient to meet verification requirement); Tooley v. State, 20 S.W.3d 519, 520 (Mo. banc 2000) (decided after verification requirement deleted from Rule 29.15) (holding Rule 55.03(a) applies to Rule 29.15 motions and that case should not have been dismissed before time for filing amended motion expired); Wallingford v. State, 131 S.W.3d 781, 782 (Mo. banc 2004) (Rule 55.03 permits prompt correction of signature omission in rule 29.15 motion even after time to file amended motion has expired). As noted in Hensel v. American Air Network, Inc., 189 S.W.3d 582, 583 (Mo. banc 2006), the purpose of the signature requirement is not to deprive litigants of a right of action. The Court holds, therefore, that for purposes of Rule 29.15 and 24.035 the signature requirement is not jurisdictional and is subject to the sanctions of Rule 55.03. To the extent they contain language or hold to the contrary, Tooley , Wallingford , and similar cases are overruled. [3]",introduction
+477,2814245,1,1,"In 1998, a jury convicted Timothy Wayne Johnson of two counts of attempting to dissuade a witness. (Pen. Code, § 136.1, subd. (a)(2); all further statutory references are to the Penal Code unless otherwise noted.) The jury also found that he had suffered three prior convictions — robbery (§ 211), first degree burglary (§ 459), and assault with a firearm (§ 245, subd. (a)(2)). Based on Johnson‟s prior convictions, the trial court sentenced him to two terms of 25 years to life under the Three Strikes law (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), to be served concurrently, and an additional term of three years for the three prior prison terms (§ 667.5, subd. (b)). In 1998, a jury convicted Oscar Machado of one count of first degree burglary and one count of second degree burglary. (§§ 459, 460.) The trial court found true the allegation that he had suffered two prior convictions, both for robbery (§ 211), and sentenced him to two terms of 25 years to life, to be served consecutively. (§§ 667, subds. (c)(6), (e)(2), 1170.12, subds. (a)(6), (c)(2).) 2 As noted, in 2012, the electorate passed Proposition 36. The Act authorizes prisoners serving third-strike sentences whose “current” offense (i.e., the offense for which the third-strike sentence was imposed) is not a serious or violent felony to petition for recall of the sentence and for resentencing as a second-strike case. (§ 1170.126, subd. (f); see §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) Following the enactment of Proposition 36, Johnson filed a petition for recall of his sentence. The trial court denied his petition on the ground that his current offenses are serious or violent felonies, rendering him ineligible for recall of his sentence. Although his current offenses were not classified as serious or violent felonies when he committed them in 1998, the crime of intimidating a victim or witness (§ 136.1) was subsequently classified as a serious and violent felony by Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, which the voters approved in 2000. (§§ 667.5, subd. (c)(20), 1192.7, subd. (c)(37).) The Court of Appeal agreed that a prisoner whose current offense was a serious or violent offense on November 7, 2012, the effective date of Proposition 36, is not eligible for resentencing, and affirmed the order. Machado filed a petition for recall of his sentence for second degree burglary. The trial court denied his petition on the ground that his conviction for first degree burglary, which is a serious felony, rendered him ineligible for resentencing with respect to his second degree burglary conviction, which is neither serious nor violent. The Court of Appeal reversed that judgment, and directed the trial court to reconsider his eligibility for resentencing with respect to his conviction for second degree burglary. For the reasons set forth below, we hold that when a court resentences a third-strike defendant the classification of an offense as serious or violent is based on the law as of November 7, 2012, the effective date of Proposition 36, and that the presence of a current offense that is serious or violent does not disqualify an 3 inmate from resentencing with respect to a current offense that is neither serious nor violent. Therefore, we affirm the appellate court judgments in both of these cases.",facts
+478,2571467,1,4,"SCR 99(1) provides, in pertinent part, Every attorney . . . practicing law here, whether specially admitted or not, is subject to the exclusive disciplinary jurisdiction of the supreme court and the disciplinary boards and hearing panels created by these rules. Other jurisdictions with similar rules have uniformly held that a lawyer not admitted in the jurisdiction, but who nevertheless practiced law in that jurisdiction, is properly subject to discipline where he or she practiced. [4] We recognize that NRS 7.285 prescribes criminal penalties for the unauthorized practice of law. But as a practical matter, such a complaint to law enforcement, which is also responsible for investigating matters such as violent crimes and drug offenses, would almost certainly be accorded a lower priority. Given this lower priority, by the time law enforcement could devote resources to an unauthorized practice of law complaint, several more clients could be harmed. Also, while NRS 7.285(3) permits the state bar to file a civil action and seek an injunction against a person engaging in the unauthorized practice of law, this court, as the ultimate authority over attorneys as officers of the court, has a special interest in enforcing its rules governing the legal profession. [5] And although an injunction as provided in NRS 7.285(3) may prevent future harm, it cannot punish past misconduct. Moreover, Droz's actions clearly illustrate why this court should exercise jurisdiction over his conduct: Droz is already disbarred in Utah and so very little more disciplinary action could be imposed upon him there, and his misconduct affected several Nevada citizens, a Nevada lawyer, and the Nevada court system. Droz has apparently fled the jurisdiction, and so an injunction at this point would be ineffective. Criminal penalties against Droz are likewise of questionable effect, at least unless and until he is located and subject to arrest. Accordingly, while the sanctions to be imposed must be tailored to Droz's lack of a Nevada law license, this court has jurisdiction to impose professional discipline upon him and should exercise that jurisdiction. Panel's recommendation As we recognized in In re Stuhff, [t]hough persuasive, the [panel's] findings and recommendations are not binding on this court. This court must review the record de novo and exercise its independent judgment to determine whether and what type of discipline is warranted. [6] The panel's misconduct findings must be supported by clear and convincing evidence. [7] Having thoroughly reviewed the record, we conclude that clear and convincing evidence supports the panel's findings. [8] We turn to the panel's recommended discipline. The Indiana Supreme Court has noted that, while a law license issued by California was not subject to sanction by the Indiana court, the Indiana court may impose penalties appropriate to punish or prevent misconduct that occurs in Indiana. [9] Examples of penalties considered or imposed by other courts in situations similar to this case include public reprimands, a temporary or permanent prohibition on future admission, including pro hac vice admission, injunctive relief, contempt sanctions, fines, and payment of costs. [10] Here, the hearing panel recognized the limitations on the discipline it could impose, since Droz does not have a Nevada law license. Thus, it tailored its recommendations to the specific facts. First, the panel recommended that this court enjoin Droz from practicing law in Nevada or appearing in any Nevada court. This recommendation is appropriate. Second, the panel recommended a fine of $500 per count, for a total of $3,000. In light of the harm caused by Droz to this state's justice system and to several Nevada citizens, a $3,000 fine is warranted. Third, in view of the apparently criminal nature of Droz's fraudulent arbitration scheme, the panel recommended that the matter be referred to the appropriate law enforcement authorities. We agree that a referral to law enforcement is appropriate. While the panel specifically mentioned only state and county authorities, however, we conclude that bar counsel should provide the information to federal authorities as well, since credit card issuers and banks are both subject to federal regulation, and thus, Droz's actions may come within federal jurisdiction. Accordingly, this recommendation, with one slight modification, is proper. Finally, the panel recommended that bar counsel be directed to provide a copy of this court's opinion directly to the Utah and Arizona bars. Again, the panel's recommendation is warranted. If Droz has in fact relocated to Scottsdale, he may very well be perpetrating similar misconduct there, and so expedited notice to Arizona is proper. Also, since Droz was licensed in Utah, that state also has a particular interest in this matter. In sum, we conclude that the panel's recommended discipline is appropriate to punish or prevent misconduct that occurs in Nevada, and that it should be approved, with the one slight modification noted above. Accordingly, Paul Droz is prohibited from practicing law in Nevada and from appearing in any Nevada court. Additionally, Droz shall pay the costs of this disciplinary proceeding and a fine of $3,000. Further, we direct the state bar to refer this matter to any appropriate federal, state, or county law enforcement authorities for possible criminal investigation. We also direct the state bar to serve a copy of this opinion upon the Utah and Arizona bars. Finally, the state bar shall serve a copy of this opinion upon Droz at his last-known address. [11]",jurisdiction
+479,3185682,1,4,"Upon review, we find no error. The circuit court correctly found Granville had authority under West Virginia Code § 8-12-5(30) [2012] to adopt an ordinance regulating the placement of mobile homes and house trailers. The circuit court’s March 30, 2015, order is affirmed. Affirmed. 4 While the circuit court correctly found Granville’s ordinance was valid and enforceable, part of its reasoning was incorrect. The circuit court allowed a witness who participated in drafting the 2006 amendment to West Virginia Code § 8A-11-1 to opine on the amendment’s intent and meaning. The circuit court based its holding, in part, on this witness’s testimony. We have held: “Ordinarily, a court cannot consider the individual views of members of the Legislature or city council which are offered to prove the intent and meaning of a statute or ordinance after its passage and after litigation has arisen over its meaning and intent.” Syl. Pt. 1, Cogan v. City of Wheeling, 166 W.Va. 393, 274 S.E.2d 516 (1981). 8",conclusion
+480,1652153,1,2,"THE COURT ERRED IN RULING THAT BECAUSE JOEY SMITH IS AN UNWED FATHER (RATHER THAN AN UNWED MOTHER), HE HAS NO PARENTAL RIGHTS TO RECEIVE NOTICE OF ANY ADOPTION OF, OR TO OBJECT TO ANY ADOPTION OF, OR TO SEEK LEGAL CUSTODY UPON THE BIRTH OF, HIS BIOLOGICAL CHILD. ISSUE II THE CIRCUIT COURT'S RULING THAT MR. AND MRS. JOE SMITH LACKED STANDING TO CLAIM DAMAGE, FLOWING EITHER FROM THE DEFENDANTS' UNLAWFUL CONSPIRACY OR FROM THE DEFENDANTS' INFLICTION OF EMOTIONAL DISTRESS UPON THEM, WAS ERRONEOUS. ISSUE III PLAINTIFFS ESTABLISHED ALL ELEMENTS OF THEIR CLAIMS FOR PURPOSES OF RULE 12. ISSUE IV THE CHANCERY ORDER ENTERED IN A SEPARATE JUDICIAL PROCEEDING, THAT DEFENDANTS SEEK TO INSERT INTO THE RECORD IN THE INSTANT CAUSE, IN NO WAY ADVERSELY AFFECTS PLAINTIFFS' CLAIMS FOR RULE 12 PURPOSES. ISSUE V THE DISTRICT COURT ERRED IN HOLDING THAT JOEY SMITH WAS LIMITED TO SEEKING REDRESS FOR THE TORTIOUS ACTIONS OF THE MALOUFS BY RESORT TO CONTEMPT PROCEEDINGS IN THE CHANCERY COURT. ISSUE VI THE DISTRICT COURT ERRED IN HOLDING THAT BECAUSE THE DEFENDANTS WERE EXERCISING UNSPECIFIED RIGHTS TO TRAVEL FREELY THROUGHOUT THE UNITED STATES AND TO BE LEFT ALONE, THEY WERE SHIELDED FROM LIABILITY FOR DAMAGES CAUSED BY THEIR INTENTIONAL TORTS.",issues
+481,2190782,1,1,"At trial, the alleged victim in Counts I and II acknowledged having given a prior statement to the police but testified that its contents were false. The statement was then read to the jury, over objection that the State was attempting to impeach its own witness. Defendant argues that the witness was impeached by a single isolated event in his life, which was not in any manner connected with his general reputation; and therefore, in violation of Morris v. State, (1977) 266 Ind. 473, 484, 364 N.E.2d 132, 139, cert. denied, (1977) 434 U.S. 972, 98 S.Ct. 526, 54 L.Ed.2d 462, where we stated, It is well settled, of course, that a witness cannot be impeached by single events, but rather such must be done by proving his general reputation. The statement from Morris has been lifted out of context and does not foreclose impeachment by showing that the witness has made a prior, inconsistent statement. Unlike Morris, this case does not concern an attempt to impeach a witness by showing specific and unrelated prior bad acts. There was no error in the trial court's overruling Defendant's objection.",issues
+482,2609441,1,2,"On July 27, 1987, a jury convicted Julian of committing sodomy upon his two daughters, ages eight and ten. The court sentenced Julian to two concurrent prison terms of fifteen years to life. This court affirmed the convictions on direct appeal. See State v. Julian, 771 P.2d 1061 (Utah 1989). On December 18, 1995, Julian filed a petition in the district court for extraordinary relief (habeas corpus petition) pursuant to rule 65B of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 65B (1995). [1] In a memorandum supporting his petition, Julian alleged that (1) the trial court [2] committed plain and harmful error by admitting into evidence adult witnesses' testimony regarding the children's out-of-court statements of the alleged sexual abuse without first determining that those statements were reliable, as required by Utah Code Ann. § 76-5-411 (1995); (2) trial counsel were ineffective for failing to object to the unreliable hearsay and for failing to request that the court make reliability findings; and (3) appellate counsel was ineffective for failing to raise the trial court's reversible errors on direct appeal. On February 12, 1996, the State moved for an extension of time to respond to the petition. The habeas court granted that motion, and the State then filed a timely motion to dismiss the petition on the ground that it was time-barred by Utah Code Ann. § 78-12-25(3) (1992), the four-year limitations provision for civil claims not otherwise provided for by law (the catch-all statute). According to the State, that statute took effect when the court of appeals declared unconstitutional Utah Code Ann. § 78-12-31.1 (1992) (the former ninety-day statute of limitations provision applicable to habeas corpus petitions). See Currier v. Holden, 862 P.2d 1357 (Utah Ct.App.1993). After the ninety-day statute was declared unconstitutional, the legislature enacted Utah Code Ann. § 78-35a-107 (1996) (the new one-year statute of limitations provision for post-conviction relief), which became effective May 1, 1995, approximately eight months before Julian filed his petition. [3] However, the State asserted that it elected not to invoke the one-year statute because it had adopted a policy of not invoking the new statute to the detriment of a defendant until May 1, 1996, to give defendants an opportunity to learn of the statute before they were penalized by its application. Julian filed a memorandum in opposition to the State's motion to dismiss, arguing, inter alia, that the catch-all statute could not be constitutionally applied to bar his petition. After considering the parties' memoranda, the habeas court denied the State's motion to dismiss. In a written order dated May 30, 1996, the court ruled that the four-year catch-all statute did not apply to Julian's petition for two reasons. First, the court concluded that the catch-all statute applied only where relief was not otherwise provided for by law and that relief was provided for by the one-year statute in section 78-35a-107. Thus, according to the court, the State's decision not to invoke the appropriate statute of limitations was an attempt to circumvent the intent of the legislature. Second, the court concluded that while the catch-all statute's four-year limitations period was noticeably longer than the period prescribed by the ninety-day statute struck down in Currier, it was equally inflexible. Nevertheless, because the one-year statute applied to Julian's petition, the court declined to reach the issue of whether application of the catch-all statute would be constitutional. The court then considered Julian's petition in light of the one-year statute. While it did not determine whether Julian's petition was filed within the one-year limitations period, the court concluded that even if his petition was untimely, given the gravity of his claims the court would excuse such untimeliness under the interests of justice exception of the said statute and consider the merits of the petition. [4] Thereafter, on July 12, 1996, Julian filed a request for a ruling on his petition, asserting that the State had not filed an answer. However, on August 5, 1996, the State filed a second motion to dismiss the petition, alleging that (1) the trial court was not required to make reliability findings pursuant to section 76-5-411 before admitting the children's out-of-court statements into evidence because those statements were properly admissible under the Utah Rules of Evidence; (2) trial and appellate counsel were not ineffective in failing to raise the section 76-5-411 issue because the children's statements were admissible under evidentiary rules; and (3) even if the trial court should have made reliability findings pursuant to section 76-5-411, its failure to do so did not violate Julian's constitutional rights and was harmless error. On September 20, 1996, Julian filed a memorandum in opposition to the State's second motion to dismiss. Neither party requested a hearing, but both filed requests for a ruling on the petition. The habeas court did not rule on the State's second motion to dismiss but instead treated it as a response to Julian's petition. On March 10, 1997, the habeas court issued a written order setting aside Julian's convictions. In the findings of fact and conclusions of law supporting its order, the court made the following legal conclusions: (1) The trial court erred in failing to make reliability findings under section 76-5-411; (2) Julian's trial and appellate counsel failed to provide adequate representation because they did not request reliability findings at trial or raise the reliability issue on appeal; and (3) there was a reasonable probability that, absent improperly admitted adult testimony, the outcome of the trial would have been different. The court subsequently denied the State's request for a stay of its order pending appeal and released Julian from prison on bond. On appeal, the State asserts three main arguments to support its claim that the court erred in granting the relief Julian sought in his petition: (1) the petition was time-barred by section 78-12-25(3)'s four-year catch-all statute of limitations period, and the one-year statute could not be applied retroactively to Julian's petition; (2) even if the court correctly applied the one-year statute, it erred in excusing Julian's untimeliness under the statute's interests of justice exception; and (3) reliability findings under section 76-5-411 were not required because the challenged testimony was otherwise admissible under the Utah Rules of Evidence; therefore, the court erred in concluding that the lack of reliability findings constituted plain error and that Julian's counsel were ineffective. Julian, on the other hand, asserts that the four-year catch-all statute may not be constitutionally applied to bar his habeas petition. Furthermore, he maintains his position — as set forth in his petition — that the trial court's failure to make reliability findings pursuant to section 76-5-411 constituted plain and harmful error, violated his substantive rights, and resulted in substantial prejudice and that defense counsels' failure to raise the reliability issue constituted ineffective assistance of counsel. He also asserts, for the first time, that expert testimony regarding the child victims' veracity was prejudicial and constituted plain and reversible error.",facts
+483,2225128,1,2,"Petitioner currently lives with her boyfriend of 2 years and their 2-month-old son. She will turn 18 in less than 2 months. She testified that she has lived primarily with her boyfriend since their son was born, although, until recently, she would also stay with her mother a few days a week. Petitioner has graduated from high school and has enrolled in college. She testified that she will move into her own apartment this summer with the assistance of a local service organization. She testified that she does not expect her boyfriend to live with her there. She works two jobs, owns a vehicle, and has a cellular telephone. She pays for her own gas, food, and other personal bills. She also pays for expenses incurred in raising her son and helps her boyfriend pay the bills for the apartment. Petitioner does not know her father, and her mother does not help support her. To the contrary, petitioner testified that her mother demands money from her whenever the mother needs it. In the past, her mother has simply taken all the money out of a shared checking account into which petitioner had deposited her earnings. Petitioner and her mother have a strained relationship. Petitioner explained that her mother's new boyfriend does not like her. Also, when petitioner's mother learned of her first pregnancy, her mother became very angry and did not speak to petitioner until after the birth of her son. Petitioner stated that, even now, her mother mostly yells at her and that they do not speak often. Petitioner described in detail for the court how she and her boyfriend had considered all their options and the possible long-term and short-term consequences before making the decision to have an abortion. Petitioner explained that she had decided not to tell her mother about the pregnancy because she did not believe her mother would provide any support or guidance. Petitioner stated that if her mother knew about this pregnancy, she would continue to treat her poorly, and [p]robably worse. The hearing was conducted on April 28, 2010, during which the court and an attorney representing petitioner asked her questions. The court filed its written findings of fact and conclusions of law on April 30, 2010. The district court denied petitioner's request for a waiver of parental notification. The court concluded that petitioner was not mature or capable of giving informed consent. It also determined that an abortion without parental notification was not in her best interests. The court found petitioner had some minimal level of experience at entry level employment, living away from home, and handling her own finances. The court noted that petitioner was not paying rent at her boyfriend's apartment, and thus, it concluded that she was not able to provide for her own residence. The court noted that petitioner did not detail the amount of income she earns or how she apportions and applies her income to her various living expenses. We note that at the hearing, she was not asked to do so. The court stated that although petitioner expressed the desire to be an independent person, [s]he did not elucidate how she intended to attain that particular status as a single, 17-year-old mother of a two month old baby, and, to the contrary, had made some arrangements toward being dependent on agencies and assistance from others. The petition for waiver was denied. Petitioner appeals.",facts
+484,1206711,1,1,"Defendant argues that the cocaine was for his personal use and that the evidence was insufficient to show his intent to distribute. A review of the evidence, however, indicates that a jury could have inferred an intent to distribute. Traces of cocaine were found on a weighing boat and a teaspoon. The drug paraphernalia also included a device commonly used to cut cocaine with other substances, a gram scale, and several papers cut from pornographic magazines to the size and shape commonly used as bindles to package cocaine. This evidence, coupled with the relatively large quantity of cocaine seized from defendant's home, provided the jury with an adequate basis to find an intent to distribute for value.",sufficiency of the evidence
+485,886539,1,4,"¶ 27 Did the District Court err in denying Ayers' motion in limine to exclude testimony using the likelihood ratio in presenting DNA results? ¶ 28 During the autopsy, swabs from each of Phyllis's breasts were collected and examined for evidence. Analysis at the State crime lab revealed the presence of Amylase, which is an enzyme found in saliva, on both swabs. However, because the crime lab was relocating its facility at the time, the swabs were sent to a private laboratory, the Laboratory Corporation of America (LabCor) for DNA profiling. Further analysis showed both male and female markers in the sample from the left breast, and Ayers could not be excluded as a contributor of the DNA alleles found in the left breast sample. ¶ 29 Because the samples were so small, LabCor used the polymerase chain reaction method (PCR) for analyzing the DNA evidence. LabCor's analysis showed that DNA found in the swab from the right breast was consistent with Phyllis and while there was a trace amount of additional DNA, it failed to meet reporting standards. LabCor's DNA profile of the left breast swab indicated a mixture of DNA from more than one individual, and LabCor concluded that neither Phyllis, nor Ayers, could be excluded as contributors of the genetic material from that swab. LabCor did not conduct a statistical analysis on this sample, because at that time it was not its policy to conduct such an analysis on mixed samples. On request of the State, the data was forwarded to Dr. Chris Basten (Dr. Basten), a Research Associate Statistician at North Carolina State University. Using LabCor's DNA testing results, Dr. Basten performed a type of calculation analysis known as a LR (likelihood ratio) to explain the relevance of the evidence. ¶ 30 LabCor conducted PCR analysis on the breast swabs. PCR testing is often used when the provided sample is small, since PCR allows the technician to amplify the DNA extracted from the sample by making millions of copies of the areas on the chromosome they wish to analyze. Here, both breast swabs contained what is referred to as a mixed sample—that is, it contained alleles from two or more individuals. According to the final report for the left breast sample, LabCor ran seven different genetic markers, and for all seven, it found alleles that were consistent with being contributed by either Phyllis or Ayers. LabCor concluded that there was nothing in those alleles that indicated there was another possible contributor to that mixed sample. To analyze the relevance of the evidence, Dr. Basten explained that since the DNA evidence came from a mixed sample, he used the LR to allow comparison of differing explanations for how it came about. ¶ 31 The LR, which is a ratio of conditional probabilities, is a measure of the strength of a piece of evidence in distinguishing between hypotheses. See State v. Garcia (Ariz.Ct.App.1999), 197 Ariz. 79, 3 P.3d 999, 1000, fn. 1 (citing Geoffrey K. Chambers et al., Forensic DNA Profiling: The Importance of Giving Accurate Answers to the Right Questions, 8 Crim. L.F. 445, 454-55 (1997)). The LR is used to evaluate how strong a proposition or hypothesis is by comparing it to another explanation. Here, the State's theory (or hypothesis) was that the two contributors to the left breast DNA evidence were Phyllis and Ayers. To evaluate how strong that proposition was, it had to be compared to another explanation, such as the hypothesis that Phyllis and an unknown individual were the contributors. Here, based on Ayers' general denial of guilt, Dr. Basten calculated the probability of the evidence under each one of those theories ( i.e., he ran an algorithm of the different possible combinations of alleles at all the different genetic markers, or loci) and then compared them by taking a ratio of those two probabilities. ¶ 32 Dr. Basten explained the LR calculation in this way: [I]n order to asses how strong a proposition is, or any explanation is, you have to compare it to another explanation. So, usually you have one explanation that's offered by the prosecution. We usually call that the prosecution explanation. Then to determine how strong that explanation is, how strong that result is, you devise another explanation. We can refer to that as the defense explanation, and there may be a number of those. Then what you do is you calculate the probability of the evidence under each one of those scenarios, and you compare them by taking a ratio of those two probabilities.... [When phrasing the results of the ratio we are] always talking about the likelihood of the evidence under two different scenarios. We're never talking about the likelihood that he's the contributor or not, but the evidence if he's the contributor versus the evidence that he's not the contributor. ¶ 33 In calculating the LR, Dr. Basten relied on formulas set forth by a group of genetic statisticians in an article published in the Journal of Forensic Sciences in 1997. See Bruce S. Weir, et al., Interpreting DNA Mixtures, 42 J. Forensic Sci. 213 (1997). According to Dr. Basten, the statistical formulas have been subjected to peer review and publication. Based on his calculations, Dr. Basten concluded that the evidence ( i.e., DNA sample from the left breast swab), was 330,000 times more likely if it came from the defendant and the victim than if it came from the victim and some unknown [person]. Or stated another way, the evidence is 330,000 times more likely under the prosecution hypothesis than one specific alternate hypothesis. ¶ 34 On appeal, Ayers argues that Dr. Basten's expert testimony should have been excluded on the following grounds: 1) the LR is a novel statistical evidence technique and should therefore be subject to analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469; 2) the computer program used by Dr. Basten was not reliable or generally accepted, and could not be verified; 3) Dr. Basten was unable to do the calculations in the courtroom; and 4) the LR formula used by Dr. Basten was based on assumptions which did not consider real population characteristics. ¶ 35 The admissibility of expert testimony is governed by Rule 702, M.R.Evid., which provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. A district court is vested with great latitude in ruling on the admissibility of expert testimony. State v. Southern, 1999 MT 94, ¶ 48, 294 Mont. 225, ¶ 48, 980 P.2d 3, ¶ 48 (quoting Durbin v. Ross (1996), 276 Mont. 463, 477, 916 P.2d 758, 767) (emphasis in original). ¶ 36 As we have repeatedly stated, the test for admissibility of expert testimony is whether the matter is sufficiently beyond common experience that the opinion of the expert will assist the trier of fact to understand the evidence or to determine a fact in issue. Southern, ¶ 49 (citation omitted). Therefore a trial court must first determine whether the subject matter of the testimony is one that requires expert testimony, and whether the particular witness is qualified as an expert to give an opinion in the particular area on which he or she proposes to testify. Southern, ¶ 49 (citation omitted). Finally, Rule 702, M.R.Evid., implicitly requires a foundation showing that the expert has special training or education and adequate knowledge on which to base an opinion. Southern, ¶ 49. ¶ 37 Although Ayers asserts that the LR is unreliable under Daubert, we conclude that the Daubert standard is inapplicable here since that standard applies only to the admissibility of novel scientific evidence. Hulse, ¶¶ 56-57 (affirming our holding in State v. Cline (1996), 275 Mont. 46, 55, 909 P.2d 1171, 1177, that all scientific expert testimony is not subject to the Daubert standard and the Daubert test should only be used to determine the admissibility of novel scientific evidence). ¶ 38 In Hulse, we concluded that the Horizontal Gaze Nystagmus (HGN) test was not novel scientific evidence, noting that for several decades, law enforcement officials had used the HGN test, and that as early as 1986, the admissibility of the HGN test had been considered in other jurisdictions. We cited with approval the Minnesota Supreme Court comment that the HGN test `can hardly be characterized as an emerging scientific technique' because nystagmus has long been known and the tests have been in common medical use for many years. Hulse, ¶ 68 (citing State v. Klawitter (Minn.1994), 518 N.W.2d 577, 584). ¶ 39 Likewise, we concluded in Southern that microscopic hair comparison evidence was not novel scientific evidence—noting that since 1978 we had considered several cases wherein witnesses had testified on such evidence and that comparing hair samples with a microscope had been done for decades—and therefore Daubert standards were not applicable to determine its admissibility. Southern, ¶ 59. ¶ 40 While it is clear from our prior decisions that there is no set standard for determining whether a scientific technique is novel, we have consistently given credence not only to previous treatment of the technique by other cases and jurisdictions, but also to how long the technique or theory has been used in the scientific community. Applying those standards here, we conclude that the LR is not a novel scientific technique. ¶ 41 First, according to Dr. Basten, the widely used paternity statistic known as paternity index or probabilities of paternity is basically the same thing as a likelihood ratio. A paternity index calculation considers the genetic evidence from a mother, child, and putative father and compares the hypothesis that the putative father is the father versus the hypothesis that another man is the father. According to Dr. Basten, while the specific equations might be slightly different between a paternity index (dealing with mother, child, and putative father) and the LR in a criminal investigation (suspect, victim and evidence stain), both involve the same theory: you're calculating the probability of what you see, evidence or data, given different ideas as to how it came about. ¶ 42 In State v. Weeks, the State presented statistical analysis based on a paternity test to prove the defendant had sexual intercourse without consent with his thirteen-year old stepdaughter who became impregnated. Weeks (1995), 270 Mont. 63, 891 P.2d 477 (The statistical analysis determined the defendant was 154,000 times more likely to be the father of his stepdaughter's baby). Dr. Basten, having reviewed Weeks, explained that the paternity index used in that case was basically a LR. ¶ 43 During the pre-trial hearing, Dr. Basten told the court that in at least six previous cases, his testimony was based on the LR, including a Montana case tried in 1998, State v. Swan, Fourth Judicial District Court, Missoula County, Cause No. 12594 (neither the admission of DNA evidence, nor the LR were appealed in that case). Moreover, Dr. Basten also testified in Garcia, 197 Ariz. 79, 3 P.3d 999, where the Arizona Supreme Court concluded that interpretation of mixed DNA samples using statistical formulas for calculating LR's were generally accepted by the relevant scientific community and were therefore admissible under Frye v. United States (D.C.Cir.1923), 293 F. 1013. ¶ 44 Second, we take note of many journal articles written on the topic of presenting DNA results which incorporate discussion of the LR. See, e.g., Jonathan J. Koehler, On Conveying the Probative Value of DNA Evidence: Frequencies, Likelihood Ratios, and Error Rates, 67 U. Colo. L.Rev. 859 (1996); William C. Thompson, DNA Evidence in the O.J. Simpson Trial, 67 U. Colo. L.Rev. 827, 828 (1996); Jonathan J. Koehler, Why DNA Likelihood Ratios Should Account for Error (Even When A National Research Council Report Says They Should Not), 37 Jurimetrics J. 425 (1997). ¶ 45 Based upon the foregoing authority, we conclude that the LR is not a novel scientific technique that warrants analysis under Daubert. However, we must still determine its admissibility under a conventional Rule 702, M.R.Evid., analysis. See State v. Hocevar, 2000 MT 157, ¶ 58, 300 Mont. 167, ¶ 58, 7 P.3d 329, ¶ 58; Southern, ¶¶ 59-60; and Hulse, ¶ 69. ¶ 46 First, we have stated that expert testimony is required in areas not within the range of ordinary training or intelligence. Hocevar, ¶ 58 (citing Hulse, ¶ 48). Based on our review of the intricacies and mathematical principles underlying calculation of the LR and other statistical analyses related to DNA evidence, we conclude that the LR is a subject matter that requires expert testimony. ¶ 47 Second, the record clearly indicates that Dr. Basten is qualified to testify as an expert witness on the basis of both his educational background and his experience. In fact, Ayers does not challenge Dr. Basten's qualifications as an expert on the LR. Rather, Ayers attacks the veracity and reliability of the specific computer program and methodology that Dr. Basten used. ¶ 48 We have noted that criticisms of specific applications of procedures or concerns about the accuracy of test results does not render the scientific theory and methodology invalid or destroy their general acceptance. These questions go to the weight of the evidence, not the admissibility. Weeks, 270 Mont. at 83, 891 P.2d at 489 (citation omitted). Moreover, we have consistently stated that it is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross-examination and refutation. Southern, ¶ 50 (citing Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 193-94, 657 P.2d 594, 598, overruled on other grounds by Martel v. Montana Power Co. (1988), 231 Mont. 96, 752 P.2d 140). See also, State v. Moore (1994), 268 Mont. 20, 42-43, 885 P.2d 457, 471, overruled on other grounds by State v. Gollehon (1995), 274 Mont. 116, 906 P.2d 697 (even though the foundation for the State's expert witness was shaky, the district court did not err in ruling the defendant's objection to the DNA evidence went to the weight, and not the admissibility, of the evidence). Finally, [n]ot every error in the application of a particular methodology should warrant exclusion. An alleged error in the application of a reliable methodology should provide the basis for exclusion of the opinion only if that error negates the basis for the reliability of the principle itself. Moore, 268 Mont. at 42, 885 P.2d at 471 (citation omitted). ¶ 49 While we recognized in Weeks, 270 Mont. at 84, 891 P.2d at 489 (citation omitted), that courts must be mindful that the probative value of statistical probabilities evidence is not outweighed by any unfair prejudicial effect, we conclude that admission of Dr. Basten's conclusions using the LR did not unfairly prejudice Ayers. At both the hearing on his motion in limine and the trial, Ayers had the opportunity to cross-examine Dr. Basten concerning the computer program he used to run the formula, his methodology, and his application of various sampling error standards. While Ayers identified two expert witnesses at the pre-trial hearing, Ayers chose not to present an expert at trial to refute or challenge Dr. Basten's calculations, methodology, or formulas. ¶ 50 We conclude that the issues concerning Dr. Basten's techniques/methods went to the weight of the evidence, not its admissibility. Based on the foregoing, we further conclude the District Court did not abuse its discretion when it allowed Dr. Basten to testify using the LR.",issues
+486,4110578,1,2,"We review the district court’s denial of a motion to suppress based on the deprivation of a constitutional right de novo. State v. Ochoa, 792 N.W.2d 260, 264 (Iowa 2010). We make “an independent evaluation [based on] the totality of the circumstances as shown by the entire record.” Id. (alteration in original) (quoting State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998)). “We give deference to the district court’s fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings.” In re Pardee, 872 N.W.2d 384, 390 (Iowa 2015) (quoting State v. Tyler, 867 N.W.2d 136, 153 (Iowa 2015)).",standard of review
+487,2090978,1,2,"Defendant argues that the trial judge erred in ruling that attorney Holt had a conflict of interest, and that this ruling effectively denied defendant his constitutional right to his counsel of choice. Defendant further argues that the trial judge's refusal to release relevant discovery material violated defendant's constitutional right to confrontation and due process, that defendant was denied effective assistance of counsel because Gant failed to introduce critical evidence that the robbery was committed by Williams' brother, not defendant, and that defendant was not proven guilty beyond a reasonable doubt because the eyewitnesses' identifications were too varied to be trustworthy and because Williams' identification was tainted by a motive for lying. For reasons we shall explain below, we affirm the judgments of the lower courts.
+In his first contention, defendant argues that he was deprived of his constitutional right to counsel of choice when the trial court granted the State's motion to disqualify attorney Holt on the ground that Holt had a conflict of interest which was impossible to waive. The sixth amendment guarantees that, in all criminal prosecutions, the accused shall have the right to assistance of counsel. (U.S. Const., amend. VI.) This right was designed to assure fairness in the adversary criminal process. ( United States v. Morrison (1981), 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564, 567.) This constitutional guaranty encompasses both the right to effective representation by competent counsel ( People v. Johnson (1979), 75 Ill.2d 180, 185, 25 Ill. Dec. 812, 387 N.E.2d 688) and the right to select and be represented by one's preferred attorney ( Wheat v. United States (1988), 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140, 148; Johnson, 75 Ill.2d at 185, 25 Ill.Dec. 812, 387 N.E.2d 688). This court has held that this right to effective assistance of counsel includes assistance by an attorney whose allegiance to the client is not diluted by conflicting interests or inconsistent obligations. ( People v. Spreitzer (1988), 123 Ill.2d 1, 13-14, 121 Ill.Dec. 224, 525 N.E.2d 30.) An accused may exercise the right to counsel of choice even where it jeopardizes the right to effective assistance of counsel if the accused makes a knowing, voluntary, and intelligent waiver of the latter right. See Spreitzer, 123 Ill.2d at 17, 121 Ill.Dec. 224, 525 N.E.2d 30. The sixth amendment right to choose one's own counsel is not, however, absolute. The right is circumscribed in several important respects, which may include the disqualification of chosen counsel if a conflict of interest exists. ( Wheat, 486 U.S. at 159, 108 S.Ct. at 1697, 100 L.Ed.2d at 148-49.) The United States Supreme Court, in Wheat, described the role of counsel as follows: [T]he purpose of providing assistance of counsel `is simply to ensure that criminal defendants receive a fair trial,' Strickland v. Washington, 466 U.S. 668, 689, [104 S.Ct. 2052, 2065, 80 L.Ed.2d 674] (1984), and    in evaluating Sixth Amendment claims, `the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such.' United States v. Cronic, 466 U.S. 648, 657, n. 21, [104 S.Ct. 2039, 2046, n. 21, 80 L.Ed.2d 657] (1984). Thus, while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. See Morris v. Slappy, 461 U.S. 1, 13-14 [103 S.Ct. 1610, 1617, 75 L.Ed.2d 610] (1983); Jones v. Barnes, 463 U.S. 745 [103 S.Ct. 3308, 77 L.Ed.2d 987] (1983). Wheat, 486 U.S. at 159, 108 S.Ct. at 1696-97, 100 L.Ed.2d at 148. Having explained the general principles of an accused's right to counsel of choice, which the parties in the case at bar do not dispute, we turn to the law governing conflict-of-interest questions. Both parties cite numerous authorities in support of their respective positions. As the appellate court noted, however (155 Ill.App.3d at 577, 108 Ill.Dec. 244, 508 N.E.2d 405), no authority exists which addresses the precise issue raised in this appeal: Did the trial court err in disqualifying an attorney because of the attorney's past, and possibly ongoing, professional relationship with the State's key witness, where all relevant facts were disclosed and defendant endeavored to waive any conflict of interest? The State vigorously argues that a per se conflict of interest existed in the case at bar. Defendant just as vigorously argues that no conflict— per se, actual, or potential —existed. The appellate court in the case at bar determined that a conflict existed. (155 Ill.App.3d at 575, 108 Ill.Dec. 244, 508 N.E.2d 405.) However, after careful examination of all the authorities cited and argued by the parties, we find that none of the decisions of this court or the appellate court is directly applicable to the issue before us. In People v. Spreitzer (1988), 123 Ill.2d 1, 121 Ill.Dec. 224, 525 N.E.2d 30, this court examined the confusing, and sometimes inconsistent use of such terms as ` per se conflict,' `potential conflict,' `possible conflict,' `actual conflict,' `prejudice,' and `actual prejudice' in the cases which considered whether an attorney's conflict of interest affected an accused's right to effective legal representation. ( Spreitzer, 123 Ill.2d at 14, 121 Ill.Dec. 224, 525 N.E.2d 30.) The Spreitzer court determined that the term  per se conflict only applied to a class of cases where the defense counsel had a tie to a person or entity which would benefit from an unfavorable verdict for the defendant. In these cases, there is no need to show that the attorney's actual performance was affected by existence of the conflict. The very existence of the conflict would inadvertently affect counsel's performance in ways difficult to detect and demonstrate, and would lead to the possibility that the attorney would be unnecessarily subject to charges that his representation was less than faithful. The Spreitzer court concluded that an accused need not show prejudice or actual prejudice in order to secure a reversal in this situation, unless the accused knowingly waived his right to conflict-free counsel. Spreitzer, 123 Ill.2d at 14-17, 121 Ill.Dec. 224, 525 N.E.2d 30. The court in Spreitzer went on to distinguish cases where a per se conflict exists from a second class of conflict-of-interest cases. These conflict cases generally, but not exclusively, involved joint or multiple representation of codefendants. In one type of case in this class, an attorney would bring the potential conflict to the trial court's attention at an early stage, creating a duty in the trial court to appoint separate counsel or determine if the risk of conflict were remote enough to leave the status quo undisturbed. Reversal of a conviction in a case of this type does not require a showing of specific prejudice. ( Spreitzer, 123 Ill.2d at 17-18, 121 Ill.Dec. 224, 525 N.E.2d 30, citing Holloway v. Arkansas (1978), 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426). In the second type of case in this class, the trial court is not apprised of the potential conflict. Reversal in this type of case will be proper only upon showing that an actual conflict existed which actually had an adverse effect on counsel's performance. Spreitzer, 123 Ill.2d at 18-19, 121 Ill.Dec. 224, 525 N.E.2d 30. We conclude that none of the types of conflict cases explained in Spreitzer encompasses defendant's cause. This is because the posture of the case before us and, consequently, the nature of defendant's claimed constitutional deprivation have no relation to the analysis involved in this court's past conflict-of-interest decisions. Defendant claims that the trial court violated his right to counsel of choice, not that Holt's performance as defendant's attorney was ineffective. In the typical conflict-of-interest case, the accused was represented at trial by counsel who allegedly labored under a conflict of interest. On appeal, the accused claims that the sixth amendment right to effective assistance of counsel was violated because of the conflict of interest. ( E.g., People v. Flores (1989), 128 Ill.2d 66, 83-86, 131 Ill.Dec. 106, 538 N.E.2d 481; People v. Free (1986), 112 Ill.2d 154, 165-70, 97 Ill. Dec. 396, 492 N.E.2d 1269.) Normally, to prevail on a claim of ineffective assistance, an accused must show prejudice. (See Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693; People v. Owens (1989), 129 Ill.2d 303, 309, 135 Ill.Dec. 780, 544 N.E.2d 276; People v. Albanese (1984), 104 Ill.2d 504, 525-27, 85 Ill.Dec. 441, 473 N.E.2d 1246.) However, when the claim of ineffective assistance constitutes an allegation of a conflict of interest, an accused need not always show prejudice. As we have said, prejudice is presumed where a per se conflict exists ( Spreitzer, 123 Ill.2d at 15, 121 Ill.Dec. 224, 525 N.E.2d 30), and in cases that this court has not labeled  per se  where the trial court is made aware of the conflict at an early stage of the trial ( Spreitzer, 123 Ill.2d at 18, 121 Ill.Dec. 224, 525 N.E.2d 30). If neither of these situations exists, it is the accused's burden to show that an actual conflict existed in order to establish prejudice. ( Flores, 128 Ill.2d at 84, 131 Ill.Dec. 106, 538 N.E.2d 481; Free, 112 Ill.2d at 169, 97 Ill.Dec. 396, 492 N.E.2d 1269.) But an analysis of whether prejudice is presumed or must be shown is simply not pertinent here, because defendant is not claiming a violation of his right to effective assistance of counsel. Rather, he claims a violation of his right to counsel of choice. Because the trial court prevented Holt from representing defendant because of a disabling conflict of interest, this case obviously does not involve a claim that conflict-ridden counsel rendered ineffective assistance. Thus, the cases cited by both parties which discuss per se conflicts do not aid us in the resolution of defendant's claims. For the same reason, Free, 112 Ill.2d 154, 97 Ill.Dec. 396, 492 N.E.2d 1269, heavily relied upon by defendant, is not dispositive. Defendant supports his position by quoting Free: In a situation where defense counsel has represented a State's witness, a per se conflict of interest will not be held to exist unless the professional relationship between the attorney and the witness is contemporaneous with counsel's representation of the defendant. ( People v. Robinson (1979), 79 Ill.2d 147, 161 [37 Ill.Dec. 267, 402 N.E.2d 157]; People v. Strohl (1983), 118 Ill.App.3d 1084, 1092 [74 Ill.Dec. 774, 456 N.E.2d 276].) Free, 112 Ill.2d at 168, 97 Ill.Dec. 396, 492 N.E.2d 1269. In Free, the defendant claimed ineffective assistance of counsel based on an alleged conflict of interest, which, as we have said, is not the claim defendant here makes. The quoted language upon which defendant relies only states that, in situations where an accused's attorney has represented a State's witness, a per se conflict does not exist. The Free court then proceeded to analyze whether, in the absence of a per se conflict, defendant could prevail on the ineffective-assistance claim by demonstrating an actual conflict and prejudice. ( Free, 112 Ill.2d at 169-71, 97 Ill.Dec. 396, 492 N.E.2d 1269.) Thus, Free is distinguishable from the case at bar because the sixth amendment right at issue in each case is not the same. Also, the Free court's determination that no per se conflict existed in that factual situation did not preclude the possibility that an actual conflict existed. Thus, even if Free did involve a claim such as is made in the present case, the language defendant quotes is not dispositive of whether a conflict of interest existed or not. Defendant attempts to bolster his claim by arguing that, had the trial court in this case found no conflict or had permitted defendant's waiver, yet defendant had been convicted, this court would not allow defendant on appeal to prevail on a claim of ineffective assistance of counsel. Assuming that defendant's hypothesis is correct, it does not dictate the result he urges in this court. We repeat that the differing postures of the case at bar and of defendant's hypothetical case dictate a conclusion that the constitutional right in each instance is different. That the two rights are not equivalent or coextensive is clear from the case law, which states that the right of effective assistance of counsel includes conflict-free counsel. (See People v. Lewis (1981), 88 Ill.2d 429, 436, 58 Ill.Dec. 743, 430 N.E.2d 994.) Thus, a defendant who wishes to exercise the right to counsel of choice despite a conflict of interest must necessarily waive the right to effective assistance of counsel. While we have never been called upon to decide this issue, we think it is obvious that different standards of review apply to claims of ineffective assistance and to claims of denial of counsel of choice. Because the standards in ineffective-assistance claims are inapplicable to the case at bar, we now turn to discussions of the standard that does apply to defendant's claim. The United States Supreme Court recently announced this standard in Wheat v. United States (1988), 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140. In Wheat the accused, on the eve of trial, sought a substitution of counsel and requested that the attorney who represented two other defendants in the same drug-conspiracy case also represent him. After a hearing, the district court refused to allow the substitution, stating that an irreconcilable conflict of interest existed which could not be waived. The Ninth Circuit Court of Appeals affirmed, and the accused appealed. Wheat, 486 U.S. at 155-58, 108 S.Ct. at 1694-96, 100 L.Ed.2d at 146-48. The Supreme Court affirmed, holding: The District Court must recognize a presumption in favor of petitioner's counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court. Wheat, 486 U.S. at 164, 108 S.Ct. at 1700, 100 L.Ed.2d at 152. Defendant in the case at bar appears to believe that courts can always determine in a definite, precise manner whether a conflict or potential conflict of interest exists. However, Wheat makes it clear that the answer to this question is not always yes or no. The Wheat Court observed that a trial court must pass on the issue of whether to allow waiver of a conflict of interest not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial context when relationships between parties are seen through a glass, darkly. (486 U.S. at 162, 108 S.Ct. at 1699, 100 L.Ed.2d at 151.) For this reason, the Wheat Court concluded that a trial court must be allowed substantial latitude in refusing waivers not only where an actual conflict exists, but also in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses. (486 U.S. at 163, 108 S.Ct. at 1699, 100 L.Ed.2d at 151.) The Court noted that the district court relied on instinct and judgment based on experience in making its decision and that it could not be said that the court exceeded the broad latitude which must be accorded it in making this decision. (486 U.S. at 163, 108 S.Ct. at 1699, 100 L.Ed.2d at 151.) The Wheat Court expressly recognized that [o]ther district courts might have reached differing or opposite conclusions with equal justification, but that does not mean that one conclusion was `right' and the other `wrong.' (486 U.S. at 164, 108 S.Ct. at 1700, 100 L.Ed.2d at 152.) In an instance like this, where the trial court must exercise discretion, a court of review will not find error or set aside a ruling of a trial judge unless there has been a clear abuse of discretion. See People ex rel. Illinois State Dental Society v. Norris (1979), 79 Ill.App.3d 890, 901, 35 Ill.Dec. 213, 398 N.E.2d 1163. With these principles in mind, we turn now to the particular circumstances of this case. At the hearing on the State's motion to disqualify Holt, it was established that Holt represented Williams in 1972 on an armed robbery charge, which was dismissed. Holt also represented Williams sometime in 1977 or 1978 on a possession-of-stolen-motor-vehicle charge; Williams pleaded guilty and received probation. The prosecutor stated that Holt represented Williams in 1969 on a deceptive-practices charge. Holt responded that to the best of his recollection, he did not know Williams in 1969. Holt also represented Williams' brother during the 1970s. One factual matter that is vigorously disputed by the parties concerns Holt's receipt of privileged communications from Williams. The following colloquy took place at the hearing: THE COURT: Have you spoken to him other than by leave of Court, at the occasion where he was brought out to the building in the past five years? MR. HOLT: Oh, sure I have.    I'm sure I have.       THE COURT: You have not had occasion—needless to say, I don't want to go into the content of that—but have you represented him on matters which, in fact, did not become the subjects of litigation? MR. HOLT: I think a fair answer to that is—well, let me put it this way your Honor: I believe that we had conversations wherein I received information that is covered by the attorney and client privilege, whether it resulted in representation of Mr. Williams or not. The hearing took place in 1984. The robbery occurred in 1980. Thus, the five years referred to by the court would include the date of the robbery. The State maintains, and the appellate court held, that Holt, in this discussion, admitted receipt of privileged communications from [Williams] over a five-year period prior to trial. (155 Ill.App.3d at 562, 108 Ill.Dec. 244, 508 N.E.2d 405.) We disagree. Holt's alleged admission is ambiguous at best. When Holt stated that he received privileged information, it is unclear whether he was referring to the specific five-year period that the trial court mentioned in the earlier question. In support of his argument that no conflict existed, defendant points to Holt's statement during the hearing: [N]or has there been an attorney-client relationship with [Williams] for at least five years, maybe more. Nevertheless, leaving aside whether the communication in question was privileged, Holt clearly stated that he had spoken to Williams within the past five years. Therefore, in light of the ambiguous record, we agree with defendant that the appellate court erred in finding that Holt had admitted that he had received privileged communications from Williams during the five-year period prior to trial. (We note that the trial court did not make an express finding on this point.) However, we reach the same result as the appellate court and affirm its ruling that defendant was not improperly denied his constitutional right to choice of counsel. The trial court expressly recognized that the right to counsel of choice is an important right. Yet, the court granted the State's motion to bar Holt for several reasons. An attorney owes his client complete loyalty, and Holt would have had divided or overlapping loyalties when he cross-examined Williams. Holt might have deliberately avoided questioning Williams about subjects that would conflict with his prior relationship with Williams. The court would have had to restrict the scope of cross-examination more than if Holt had not had a prior relationship with Williams. The State also has a right to have defendant represented by counsel who would not cross the bounds of propriety by cross-examining a critical State witness regarding matters which were the subject of a prior attorney-client relationship. (155 Ill.App.3d at 572-73, 108 Ill.Dec. 244, 508 N.E.2d 405.) Further, the trial court expressed concern with the appearance of impropriety, should the jurors become aware, as they undoubtedly would, of Holt's prior representation of the State's key witness. It is apparent that, in reaching its decisions, the trial court took into consideration the various competing interests at stake. As the Supreme Court stated in Wheat, we cannot say that the court exceeded the broad latitude which must be accorded it ( Wheat, 486 U.S. at 163, 108 S.Ct. at 1699, 100 L.Ed.2d at 151) in barring Holt from acting as defendant's attorney. Williams was the State's key witness. Holt's relationship with the witness was long-standing, dating back at least 12 years prior to trial. Although the record is ambiguous regarding the specifics of that relationship, to conclude that the likelihood that Holt and Williams had an ongoing relationship was so great as to barring Holt from representing defendant was not a clear abuse of discretion. Holt had also represented Williams' brother. The record might fairly lead to the conclusion that Holt was the house counsel for the Williams family. Under these circumstances, the trial court's concern that Holt's cross-examination of Williams would be improperly restricted, and the adversarial process frustrated, is certainly justified. In fact, Holt admitted that he would voluntarily restrict his cross-examination to those matters that were of public record. We believe this sort of restriction might have violated Holt's duty to represent his client with undivided loyalty. (See generally 107 Ill.2d Rules 5-105, 5-107, 7-101.) Moreover, the trial court aptly noted the practical difficulties Holt would face in simultaneously attempting to fulfill his duties to both Williams and defendant. The trial judge stated that he had no doubt that Mr. Holt would make every effort to fulfill his professional responsibilities but that delineation of where those responsibilities end for Mr. Ulrich Williams and begin for Mr. Holmes would be virtually impossible for any attorney to carefully draw or maintain. In short, defendant's interests would be jeopardized by Holt's continued representation of him. At the same time, as the trial court noted, the State has a right to a fair trial. Defendant may have wanted Holt to represent him precisely because of Holt's relationship with Williams. Holt no doubt knew more about Williams than a lawyer with no prior connection with Williams. This knowledge potentially would have given defendant an unfair advantage. See United States v. O'Malley (7th Cir.1986), 786 F.2d 786, 790-91; United States v. James (2d Cir.1983), 708 F.2d 40, 45. Finally, the trial court properly took into account the probability that, had the court accepted defendant's waiver of conflict-free counsel and had defendant then been convicted, he would have appealed, claiming ineffective assistance of counsel based on Holt's conflict of interest. See Wheat, 486 U.S. at 161, 108 S.Ct. at 1698, 100 L.Ed.2d at 150 (noting the legitimate wish of district courts that their judgments remain intact on appeal). Defendant vehemently argues that the Wheat case is factually distinguishable from the case at bar, in that it involved an attorney's multiple representation of defendants charged in the same criminal conspiracy. (See Wheat, 486 U.S. at 160, 108 S.Ct. at 1697, 100 L.Ed.2d at 149 (courts treat multiple-representation cases with special care because of grave potential for conflicts of interest).) While Wheat did involve the multiple representation of simultaneously charged defendants, we find nothing in the Wheat opinion that indicates its holding is limited to such cases. In the absence of such an indication, as well as the absence of authority from this court on the issue, we adopt the Wheat abuse-of-discretion standard as the standard applicable to claims of violation of the right of choice of counsel. We note in passing that, prior to Wheat, other jurisdictions applied the abuse-of-discretion standard in reviewing such claims. ( O'Malley, 786 F.2d at 793; James, 708 F.2d at 45.) We further note that the Seventh Circuit Court of Appeals has rejected a per se disqualification rule, even where an actual conflict exists, in favor of a balancing test. O'Malley, 786 F.2d at 790. For these reasons, we find that the presumption in favor of defendant's counsel of choice was overcome by a showing of a serious potential for conflict. (See Wheat, 486 U.S. at 164, 108 S.Ct. at 1699-1700, 100 L.Ed.2d at 152.) Accordingly, we hold that defendant's constitutional right to choice of counsel was not violated when the trial court disqualified Holt from representing defendant because of Holt's prior representation of the State's key witness.
+Defendant also argues that the trial court erred in refusing to release the complete transcript of Williams' statement, which Williams had made during a separate proceeding. Defendant states that his counsel has never been allowed access to the excised portions of Williams' statement and, because his counsel was not present during the in camera inspection of Williams' statement, that there has never been an adversarial setting in which defendant could argue the relevance of the excised material. Defendant contends that this violated his constitutional rights to confrontation and due process. The appellate court affirmed the trial court's decision not to allow defendant access to the excised portions of Williams' statement. The court expressly disapproved of the trial court's procedures in editing the irrelevant matters from the statement, holding that both sides should either be totally included or totally excluded from the in camera proceeding. However, the court ultimately held that this error was harmless because the excluded material was unrelated to defendant's cause. 155 Ill.App.3d at 580-81, 108 Ill. Dec. 244, 508 N.E.2d 405. Due process requires that the State disclose all evidence that is relevant to an accused's guilt or punishment. ( Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218.) This does not mean, however, that the State must turn over all evidence in its possession to an accused. (See People v. Velez (1984), 123 Ill.App.3d 210, 216-19, 78 Ill.Dec. 627, 462 N.E.2d 746.) An accused is entitled to production of statements in the State's possession, provided no privilege exists and the relevancy of the evidence is established. (107 Ill.2d Rules 412(c), (h), (i); People v. Wolff (1960), 19 Ill.2d 318, 327, 167 N.E.2d 197.) Where the State objects to disclosure of such evidence because it does not relate to the accused's case, the trial judge has discretion to delete unrelated materials before delivery of a document to the accused. 107 Ill.2d Rules 415(d), (e); Wolff, 19 Ill.2d at 327, 167 N.E.2d 197. We agree with defendant and the appellate court that the procedures the trial court used were inappropriate. ( People v. Coates (1985), 109 Ill.2d 431, 437-38, 94 Ill.Dec. 421, 488 N.E.2d 247.) Having both parties' attorneys present is preferable, for, in the event the court determines that a discovery privilege exists, the opposing party has the opportunity to argue for the relevance of the excluded evidence. See People v. Dace (1983), 114 Ill.App.3d 908, 915, 70 Ill.Dec. 684, 449 N.E.2d 1031. However, the error of excluding defendant's attorney from the in camera hearing was not reversible error. The reason the State sought excision of portions of the Williams statement was to keep information regarding unrelated, ongoing criminal investigations from reaching the public, and to protect the names of informants in those cases. (155 Ill.App.3d at 580, 108 Ill.Dec. 244, 508 N.E.2d 405; see 107 Ill.2d R. 412(i) (court may deny disclosure if it finds that there is substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from such disclosure which outweighs any usefulness of the disclosure to counsel).) Defendant argues that all relevant evidence must be disclosed by the State, even if such disclosure would be attended by potential danger to the reputation or safety of third parties. ( Alderman v. United States (1969), 394 U.S. 165, 181, 89 S.Ct. 961, 970, 22 L.Ed.2d 176, 191.) However, after careful examination of the excised portions of Williams' statement, we determine that all the material which the trial court has refused to release to defendant has no relevance to defendant's cause. The Alderman Court stated that [m]aterial not arguably relevant would not be disclosed to any petitioner—even if such material contained no threat of injury to third parties. ( Alderman, 394 U.S. at 181 & n. 13, 89 S.Ct. at 971 & n. 13, 22 L.Ed.2d at 191 & n. 13.) Because the excised portions are irrelevant to defendant's case, whether defendant's attorney was present during the in camera hearing would have had no effect on the trial judge's decisions in editing Williams' statement. Thus, the trial court's refusal to release this material to defendant's counsel was correct. Defendant further argues that his attorney on appeal must be allowed to examine the excised material in order to argue its relevance before this court. While the Coates decision argues either for the inclusion of counsel for both parties during an in camera proceeding, or for the trial judge to conduct the in camera hearing with neither attorney present, it in no way requires that defense counsel be allowed to examine the disputed material. Such a requirement would defeat the purpose of an in camera examination. (155 Ill.App.3d at 581, 108 Ill.Dec. 244, 508 N.E.2d 405; People v. Jackson (1986), 145 Ill.App.3d 626, 639, 99 Ill.Dec. 472, 495 N.E.2d 1207.) Thus, even if the trial court had allowed defendant's attorney to be present at the in camera proceedings where it edited Williams' statement, neither defendant nor his attorney had a right to examine the excised portions of Williams' statement in order to prepare his appeal.
+In oral argument before this court, defendant originally asserted that the trial court should have mandated Gant's withdrawal as defendant's attorney because Gant was laboring under a conflict of interest when arguing his own incompetence during the hearing on the post-trial motions. We determined, however, that the issue of Gant's alleged conflict of interest turned on whether the attorney had actually rendered ineffective assistance of counsel in his representation of defendant. Therefore, we entered a supervisory order, remanding the cause to the circuit court for the limited purpose of an evidentiary hearing on the issue of Gant's ineffectiveness, while retaining jurisdiction. 107 Ill.2d Rules 315, 383. At this hearing, Gant testified that he had planned to pursue a misidentification defense on defendant's behalf at trial, based on the discrepancies in the eyewitnesses' testimony describing defendant, the supposed statement of witness Van Kampen that the two men who robbed the McDonald's office could have been brothers, the physical similarities between Williams and his brother Reginald, and the history of prior criminal activity in which Williams had been involved with his brother. Gant stated that he had planned to use this evidence to prove that it was unlikely that defendant had committed the crime, but rather Williams' accomplice had been his brother, Reginald. Gant stated that he had planned to pursue this theory when he cross-examined Williams regarding the prior crimes in which he had been involved with his brother. However, Gant testified that he somehow was sidetracked while questioning Williams, and never returned to the subject. He did not realize his failure to elicit this evidence until after the closing arguments had begun. At that point, Gant determined that it was too late to pursue the matter. Gant explained that this oversight was not a conscious decision. He further stated that in light of the differences in the descriptions given by the eyewitnesses, he believed this line of questioning would have had some bearing on the outcome of the trial, particularly if he had been able to connect it to the supposed statement by Van Kampen about the two robbers' looking like brothers. On cross-examination, Gant admitted that Van Kampen's supposed statement had been presented to the jury at trial. However, he retorted that, because of his own oversight, he was unable to establish a connection between Williams and his brother. Gant also noted that the jury never heard any evidence regarding the actual existence of Williams' brother or the allegation that Williams had previously committed crimes with his brother. With these allegedly critical pieces of evidence, Gant said that he could have argued in closing that Reginald Williams, not defendant, committed the crime. He insisted that his failure to introduce this evidence was so significant that he felt compelled to raise his own ineffectiveness in the post-trial motion. The trial court held, however, that Gant's performance in cross-examining Williams was excellent. The court noted that the evidence the jury took into consideration included the eyewitnesses' descriptions and identifications, as well as the testimony about the statement that the robbers looked like brothers. The court also emphasized Gant's cross-examination techniques which impeached Williams' credibility, and the fact that the jury received an accomplice-testimony instruction. (See Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981) (instructing jurors to consider the testimony of an accomplice with suspicion and caution in light of the other evidence).) The court concluded that implicit in a misidentification defense is the notion that someone else did it, and the failure to present the specific inference that Williams' brother was the actual accomplice was woefully short of being the type of testimony that may have changed the outcome of the case. Therefore, the court determined that Gant's performance in cross-examining Williams and the eyewitnesses was not deficient, and that the omission of the evidence suggesting Reginald Williams' connection to the crime had no effect on the outcome of the case. We agree. To prevail on a claim of ineffective assistance of counsel, a claimant must show that the performance of the attorney fell outside the range of competence demanded of attorneys in criminal cases and that there is a reasonable probability that, but for the attorney's professional errors, the result in the case would have been different. ( People v. Barrow (1989), 133 Ill.2d 226, 247, 139 Ill.Dec. 728, 549 N.E.2d 240.) We must note, however, that claims of ineffectiveness can often be disposed of on the ground that the accused suffered no prejudice from the claimed errors, without deciding whether the alleged errors were egregious enough to constitute professional incompetence. ( People v. Caballero (1989), 126 Ill.2d 248, 260, 128 Ill.Dec. 1, 533 N.E.2d 1089, citing Strickland v. Washington (1984), 466 U.S. 668, 695, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 698.) In Caballero, we stated that many defendants who make claims of ineffective assistance of counsel often attempt to reverse this procedure, dwelling heavily on their counsel's performance while making little attempt to demonstrate a reasonable probability that, absent the alleged deficiencies, the jury would have entertained a reasonable doubt as to the accused's guilt. Caballero, 126 Ill.2d at 260-61, 128 Ill.Dec. 1, 533 N.E.2d 1089. This is exactly the circumstance in the case at bar. The trial record and the record of the proceeding conducted pursuant to our supervisory order reveal that Gant's failure to cross-examine Williams regarding his prior criminal activity with his brother would have had no effect on the outcome of the trial. We first note that the cross-examination of the eyewitnesses, particularly Van Kampen, had no bearing on this issue whatsoever. All Gant could have hoped to accomplish by cross-examining Van Kampen regarding her supposed statement to the police officer that the robbers looked like brothers was her impeachment as a witness. The record shows that Gant did indeed ask this question; Van Kampen simply denied making the statement. Because the police officer was unavailable to testify, Gant had the police officer's statement introduced through stipulation. This, combined with Gant's cross-examination of Van Kampen regarding the disparity in her physical descriptions of the robbers, accomplished all Gant could have achieved through Van Kampen's testimony in establishing the misidentification defense—revealing any doubts regarding Van Kampen's identification of defendant. The jury was fully apprised of this evidence—including Van Kampen's in-court identification of defendant as the man who, along with Williams, robbed the McDonald's office on March 23, 1980. Also, the jury had the opportunity of viewing defendant and Williams themselves to see if Van Kampen's brother description had credibility, at least as far as defendant's appearance was concerned. We determine that any ability to introduce a more concrete connection between Williams and his brother through Van Kampen's testimony would have had no effect on outcome of the trial. The record also supports a similar conclusion regarding Gant's alleged failure to cross-examine Williams regarding his brother. Leo Holt also testified at the hearing conducted pursuant to our supervisory order. Holt explained that had he been allowed to represent defendant at trial, he would never have attempted the brother misidentification defense because the eyewitness descriptions of Williams and his accomplice made such a proposed strategy absurd. For example, Holt explained that both witnesses had described one of the robbers as being taller, while Reginald and Ulrich Williams were approximately the same size. He further stated that there were other discrepancies that caused him to believe that the description of the two robbers could not have fitted the similarities which existed between the two brothers. Finally, Holt stated that there was almost no physical resemblance between Reginald Williams and defendant. Holt explained that he would have pursued the misidentification defense from the standpoint of the robbery victims' not having had a fair opportunity to view the robbers and would have argued that Van Kampen's positive identification of defendant was therefore a mistake. Gant's testimony at the hearing revealed that his main focus during cross-examination of all the State's witnesses was to discredit their testimony. As we have already explained, he made the best of his opportunities to discredit Van Kampen. The record shows that Gant's skillful cross-examination of Williams clearly alerted the jury to Williams' biases and motives regarding his relationship to and preferred treatment by the State. Gant was able to show the jury Williams' duplicitous nature through revealing his use of aliases, his lifelong pattern of using falsehood and inaccuracy to protect his own interests, and his past criminal record. In ruling that Gant's counsel had been not only effective, but excellent, the trial judge commented, I shall never forget    when [Gant] started    his cross examination of Ulrich Williams by referring to [his many aliases. The State's Attorney] was sinking in his seat, due to the effectiveness of it.    [T]he jury was on the edge of their collective seats.    [O]ver the years [I] have made reference to the fact [that the young attorneys present in the courtroom that day] have made reference to the fact they felt it was the most effective cross examination of a [`flipper' (a defendant who becomes a State's witness)] that they had seen. The record therefore clearly shows that, despite his alleged omission, Gant effectively impeached Williams' credibility. Defendant's speculations as to what would have transpired at trial had Gant raised these questions on cross-examination falls short of raising a reasonable probability that the result would have been different. In the case at bar, the description of what took place at the robbery is corroborated by two eyewitnesses and Williams, the accomplice. This helps give credibility to their testimony, despite Gant's skillful impeachment of these witnesses. Also, Van Kampen positively identified both Williams and defendant as the robbers on two separate occasions. As we will discuss in the next section of the opinion, it is the jury's province to determine the weight given to this evidence. While the eyewitnesses' descriptions of Williams and defendant varied greatly, we can glean from the record that the two robbers were physically dissimilar. The jury could itself view Williams and defendant together and see that they were indeed physically dissimilar. The photographs in evidence at trial and the testimony of Holt at the hearing conducted pursuant to our supervisory order conclusively show that Williams and his brother were physically similar, while defendant and Williams' brother were not. Therefore, we conclude that the evidence would not have led to a conclusion that Gant's brother theory was credible, and that there was no reasonable probability that the result of the trial would have been different had this theory been introduced. Thus, the issue of whether Gant's alleged errors constituted professional incompetence is immaterial. An error by counsel, even if professionally unreasonable, does not warrant setting aside a criminal judgment based on ineffective assistance of counsel if the error had no effect on the judgment. ( People v. Bivens (1987), 163 Ill.App.3d 472, 480, 114 Ill.Dec. 583, 516 N.E.2d 738.) Because we find that this allegedly erroneous omission would have had no effect on the trial's outcome, we affirm the judgment of the trial court that defendant failed to show ineffective assistance of counsel.
+Defendant also argues that he was denied his constitutional right to a fair trial because the State failed to prove him guilty beyond a reasonable doubt. Defendant contends that the descriptions and identifications were inherently untrustworthy in that the eyewitnesses' descriptions of the offenders varied greatly and the accomplice testimony was tainted by Williams' desire both to put himself in a favorable light with the State and to protect his brother. Specifically, defendant points to the allegedly wide variance between the physical descriptions of the robbers given by Van Kampen and Skalski. The witnesses' specific descriptions of defendant differed from a height of 5 feet 4 inches to 6 feet, a weight of 160 to 230 pounds, and an age of 35 to 45 years; of Williams, from 5 feet 6 inches to 6 feet, from 180 to 225 pounds, and from 30 to 40 years. Defendant points to further discrepancies in certain statements of these witnesses which specifically described defendant as being substantially younger, shorter, and thinner than Williams. Additionally, the two witnesses disagreed regarding the color of defendant's clothing, and whether he had been wearing a fur coat or a Windbreaker. Further, defendant claims that he was not proved guilty beyond a reasonable doubt because Williams was offering his testimony in exchange for a lesser sentence. Defendant also opines that Williams was lying to cover for his brother, who actually committed the crime. This allegedly makes Williams' testimony inherently unreliable. We cannot agree. The due process clause of the fourteenth amendment (U.S. Const., amend. XIV) safeguards an accused from conviction unless the State has proved beyond a reasonable doubt every fact necessary to constitute the crime with which the accused is charged. ( People v. Young (1989), 128 Ill.2d 1, 48, 131 Ill.Dec. 86, 538 N.E.2d 461, citing In re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368.) When the sufficiency of the evidence is challenged, it is this court's function to carefully examine the evidence while giving due consideration to the fact the court and jury saw and heard that evidence. If, after such consideration, this court is of the opinion that the evidence is not sufficient to remove all reasonable doubt of the accused's guilt and is not sufficient to create an abiding conviction that the accused is guilty of the crime charged, then the criminal conviction must be reversed. Young, 128 Ill.2d at 48, 131 Ill.Dec. 86, 538 N.E.2d 461. Relying on United States Supreme Court precedent, this court articulated the proper standard of review to be applied when an accused claims to have been convicted upon insufficient evidence: `[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. [Citation.] 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. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon jury discretion only to the extent necessary to guarantee the fundamental protection of due process of law.' (Emphasis added.) Young, 128 Ill.2d at 49, 131 Ill.Dec. 86, 538 N.E.2d 461, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560, 573-74. A careful view of the record in the light most favorable to the prosecution convinces us that a rational fact finder easily could have found defendant guilty of armed robbery beyond a reasonable doubt. First, Van Kampen's identification of defendant is reliable. When this court assesses the reliability of an identification, the relevant factors we consider are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. People v. Slim (1989), 127 Ill.2d 302, 307-08, 130 Ill.Dec. 250, 537 N.E.2d 317; People v. Manion (1977), 67 Ill.2d 564, 571, 10 Ill. Dec. 547, 367 N.E.2d 1313, quoting Neil v. Biggers (1972), 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411. Van Kampen had two opportunities for an unobstructed view of the criminal's face at the time of the robbery. (155 Ill.App.3d at 568, 108 Ill.Dec. 244, 508 N.E.2d 405.) Van Kampen's testimony regarding the facts surrounding these opportunities was corroborated by Williams. (155 Ill.App.3d at 569, 108 Ill.Dec. 244, 508 N.E.2d 405.) There is nothing in the record to show that Van Kampen's degree of attention during these opportunities was inadequate; on the contrary, her detailed description of how she beheld the criminal's features belies any claim otherwise. The record reveals that Van Kampen was completely certain that defendant was one of the men who had robbed the McDonald's office when she positively identified defendant from a photographic lineup. Defendant argues that the remaining two identification factors mentioned in Slim —prior accuracy in description, and time lapse between crime and identification—weigh so heavily in his favor as to warrant reversal. Specifically, defendant points to the wide variance between both witnesses' descriptions of the criminal immediately after the crime and 18 months later when the identification was made. We feel that the failure of Van Kampen and Skalski to precisely describe defendant's height, weight, and age does not create a reasonable doubt of his guilt. Generally, discrepancies as to physical characteristics are not fatal, but simply affect the weight to be given the identification testimony. Variances between a witness' trial testimony and pretrial statements raise questions of credibility which the trier of fact must assess in making a determination of guilt. The presence of discrepancies in a witness' description of the accused do not in and of themselves generate a reasonable doubt as long as a positive identification has been made. ( Slim, 127 Ill.2d at 308-09, 130 Ill.Dec. 250, 537 N.E.2d 317; see People v. Miller (1964), 30 Ill.2d 110, 113, 195 N.E.2d 694 (precise accuracy in describing facial characteristics unnecessary where identification is positive); People v. Bias (1985), 131 Ill. App.3d 98, 104-05, 86 Ill.Dec. 256, 475 N.E.2d 253 (witness' failure to describe defendant's hair length, missing teeth, and facial scar were minor omissions); People v. Harrison (1978), 57 Ill.App.3d 9, 14-15, 14 Ill.Dec. 636, 372 N.E.2d 915 (witness' failure to identify type or color of clothing of accused irrelevant where identification is otherwise positive).) Considering that very few persons are keen or trained observers and considering the stress under which the impressions of Skalski and Van Kampen were formed, discrepancies such as these are not uncommon. Slim, 127 Ill.2d at 311, 130 Ill.Dec. 250, 537 N.E.2d 317. For example, in People v. Evans (1962), 25 Ill.2d 194, 200-01, 184 N.E.2d 836, this court held that a 5½-inch, 25-pound inaccuracy in a description of the accused was not decisive in light of the witness' positive identification. The Evans court concluded that because the jury heard the testimony and saw the accused in court, the jury was in a far better position to evaluate the weight to be given to the witness' discrepancies. Similarly, in People v. Slim , this court determined that a 6-year, 6-inch, 30-pound inaccuracy, combined with the witness' failure to remember the accused's teeth braces and unusually thick lips, was not decisive, also because of a positive identification. ( Slim, 127 Ill.2d at 305-06, 312-13, 130 Ill.Dec. 250, 537 N.E.2d 317.) The case at bar is remarkably similar. The jury was in an infinitely better position than we to judge the significance and weight of Skalski's and Van Kampen's testimony. The defendant also argues that the large lapse of 18 months between the crime and the identification of defendant supports his claim that the identification is unreliable. While this large time lapse might be significant, it only goes to the weight of the testimony, making it a question for the jury. The fact that much of Van Kampen's testimony was corroborated by Williams only serves to strengthen her credibility. ( People v. Rodgers (1972), 53 Ill.2d 207, 214, 290 N.E.2d 251.) This court has upheld a criminal conviction where there was a two-year time lapse between the crime and the identification. ( Rogers, 53 Ill.2d at 214, 290 N.E.2d 251; see People v. Dean (1987), 156 Ill.App.3d 344, 352, 108 Ill.Dec. 922, 509 N.E.2d 618 (identification made 2½ years later).) Viewing the record in the light most favorable to the State, we determine that, because of the strength of Van Kampen's positive identification, the 18-month time lapse has no significance. Defendant's attack on Williams' testimony as unreliable because he admitted to being an accomplice also fails. The testimony of an accomplice witness has inherent weaknesses, being testimony of a confessed criminal and fraught with dangers of motives such as malice toward the accused, fear, threats, promises or hopes of leniency, or benefits from the prosecution. ( People v. Hermens (1955), 5 Ill.2d 277, 285, 125 N.E.2d 500.) Because of this, accomplice testimony must be cautiously scrutinized on appeal ( People v. Ash (1984), 102 Ill.2d 485, 493, 82 Ill.Dec. 373, 468 N.E.2d 1153), and these inherent weaknesses affect questions of the weight of the evidence and the credibility of the witness, matters peculiarly within the province of the trier of fact ( People v. Hansen (1963), 28 Ill.2d 322, 332, 192 N.E.2d 359). Material corroboration of an accomplice's testimony is entitled to great weight. ( People v. Baker (1959), 16 Ill.2d 364, 370, 158 N.E.2d 1.) However, the testimony of an accomplice witness, whether corroborated or not, is sufficient to sustain a criminal conviction if it convinces the jury of the defendant's guilt beyond a reasonable doubt. Young, 128 Ill.2d at 48, 131 Ill.Dec. 86, 538 N.E.2d 461. The record shows that Gant's cross-examination of Williams at trial revealed infirmities in Williams' testimony. Williams admitted his involvement in past crimes, most notably an insurance fraud scheme, a drug charge, and motor vehicle theft. He admitted the deal he worked out for the armed robbery charge in the instant case, where he would receive a six-year sentence and relocation expenses for his family. Further, Williams' description of the events of the robbery was substantially corroborated by the testimony of Skalski and Van Kampen. We therefore conclude that the record in the case at bar upholds the reliability of Williams' accomplice testimony. The jury was fully apprised of Williams' criminal background, the evidence and testimony which impeached his testimony, and the negotiated plea agreement. The jury considered these factors along with the substance of Williams' testimony in light of the rest of the evidence presented at trial. It was the function of the jury to assess the credibility of the witness, the weight given to his testimony, and the inferences to be drawn from this evidence. The jury was also to resolve any conflicts in the evidence. We therefore refuse to reverse defendant's conviction on questions involving the credibility of an accomplice witness where the evidence is not so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt as to defendant's guilt. Young, 128 Ill.2d at 51, 131 Ill.Dec. 86, 538 N.E.2d 461. As for the argument that Williams' testimony is unreliable because he was lying to cover for his brother, we have already discussed how the record confirms that even had defendant's brother theory been presented to the jury, this argument would not have had a reasonable probability of changing the result of the trial. Also, the jury did hear evidence of defendant's prior criminal activity with his family members, most notably the insurance fraud scheme. We have also discussed how the credibility of a witness is for the jury to decide, and that, through Gant's effective cross-examination, the jury was fully apprised of Williams' conflicting motives. The only credible strategy defendant had was to discredit the testimony of those who identified him as one of the robbers. While defendant's attorney did in fact impeach the identification testimony, there was substantial corroboration of Van Kampen's, Skalski's, and Williams' testimony regarding the events of the robbery, and both Williams and Van Kampen positively identified defendant as Williams' accomplice in the McDonald's armed robbery. The jury apparently gave this testimony great weight. We therefore conclude that the questions involving a misidentification defense and Williams' alleged attempts to shield his brother are insufficient to aid defendant's case. For the foregoing reasons, the judgment of the appellate court is affirmed. Judgment affirmed.",analysis
+488,1855588,1,3,"¶ 5. The circuit court's grant of summary judgment is reviewed by this Court de novo. Hernandez v. Vickery Chevrolet-Oldsmobile Co., 652 So.2d 179, 181 (Miss.1995). This Court's review is governed by the same standard used by the circuit court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983). The trial court must review carefully all of the evidentiary matters before it: admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion is made. Id. If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be granted in the moving party's favor. Id. ¶ 6. The burden of demonstrating that no genuine issue of material fact exists is on the moving party. Id. To defeat a motion for summary judgment, the nonmoving party must make a showing sufficient to establish the existence of the elements essential to his case. Id. In other words, the nonmovant must present affirmative evidence that a genuine issue of material fact exists. As to issues on which the nonmovant bears the burden of proof at trial, the movant needs only to demonstrate an absence of evidence in the record to support an essential element of the movant's claim. Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1188 (Miss.1994). The nonmovant then bears the burden by affidavit or otherwise of setting forth specific facts showing that there are indeed genuine issues for trial. Fruchter v. Lynch Oil Co., 522 So.2d 195, 199 (Miss.1988). The nonmovant should be given the benefit of every reasonable doubt. Rosen v. Gulf Shores, Inc., 610 So.2d 366, 368 (Miss.1992).",standard of review
+489,4436393,1,5,"¶40 We first address the fourth certified question to clarify that we do not opine on whether PMA-approved medical devices are unavoidably unsafe as a matter of law because they are already exempt from all state products liability claims under the United States Supreme Court’s decision in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). ¶41 We answer the first certified question conditionally. Although the unavoidably unsafe exception might immunize some implanted medical devices from strict products liability, when such a device enters the market through the 510(k) process we cannot say that this will always be the case as a matter of law. ¶42 Regarding the second certified question, the exception does not apply categorically to all 510(k)-cleared devices. It should be raised by the defendant as an affirmative defense and determined by the factfinder on a case-by-case basis. ¶43 As to the third certified question regarding the proper analysis to determine whether the defendant has proven the exception, we conclude that the MUJI instruction properly explains Utah law. However, some additional language must be added explaining that this affirmative defense is unavailable if the plaintiff alleges and proves by a preponderance of the evidence that the product was improperly manufactured or contained inadequate warnings. 16",conclusion
+490,4557522,1,2,"Tammy and Brian met in March 2008 and were engaged later that year. The couple was married in April 2012. Both had children from previous marriages, but no children were born to the couple. Tammy filed for divorce in September 2016. A trial was held, and a decree dissolving the parties’ marriage was filed February 19, 2019. Real Property. As relevant on appeal, the district court for Dodge County found that Tammy and Brian worked together to purchase - 352 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports DOERR v. DOERR Cite as 306 Neb. 350 and remodel the couple’s home on Howard Street in Fremont, Nebraska (Howard Street home), during the marriage. The court valued the home at $350,000. The district court found that Tammy invested $40,000 and that Brian invested $50,000 as a downpayment. The court further found that the funds used to pay for the home were commingled in the time before and after the purchase of the home. The district court therefore awarded the home to Brian, but awarded half of the home’s value, or $165,000, to Tammy, less $10,000 to account for Brian’s larger share of the home’s downpayment. Bank Accounts. The couple had various bank accounts, some of which were jointly held and others which were individually held. At or near the time of separation, Tammy transferred funds from the parties’ joint money market account with Union Bank into her individual checking account with another bank. The district court found that $108,600 of the funds transferred were marital and ordered an equal division—$54,300 to each party. The parties’ other bank accounts were awarded to the party in whose name each respective account was held. Debts. The district court ordered that each party should pay marital debts held in their respective names, as well as debts individually incurred since the filing of the divorce action. Equalization Payment. Based on the court’s determination of the various equity shares of each of the parties, the district court ordered Brian to make an equalization payment to Tammy in the amount of $110,700. ASSIGNMENTS OF ERROR Brian assigns that the district court erred in (1) awarding Tammy $165,000 in equity in the Howard Street home, (2) awarding Tammy $54,300 from the Union Bank account, - 353 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports DOERR v. DOERR Cite as 306 Neb. 350 (3) failing to award Brian $12,831.67 in funds held in a U.S. Bank account controlled by Tammy, (4) failing to order Tammy to pay one-half of $16,207.76 in debts, and (5) ordering Brian to pay an equalization payment to Tammy in the amount of $110,700.",facts
+491,2366743,1,2,"[¶ 4] On April 4, 2009, Mr. Daves and the victim were in the process of getting a divorce. Mr. Daves told the victim that he was going to return some of her jewelry, so she agreed to meet with him. He picked her up at her residence in Laramie because it was storming and the road conditions were poor. They went to a coffee shop, and he returned some of her jewelry. He told her that the rest of her jewelry was buried with his dead parakeet near an access area on the Laramie River. She agreed to accompany him to the access area to retrieve the jewelry. [¶ 5] While they were at the access area, Mr. Daves pulled a gun and forced her to perform oral sex on him. He then decided that he would take her to a motel. They went to two different motels because the first one did not have any available rooms. At both places, he hid the gun in his clothing and took the victim into the motel office with him. He told her to act normal, while they were in the motel offices so that people would not get suspicious. Once they were in the motel room, he put the gun next to him on the bed. He forced her to remove her clothes and have sexual intercourse with him. During that encounter, he put the gun on the table. [¶ 6] After the second sexual assault, he again aimed the gun at her. He also told her that somebody was going to die that night. Mr. Daves sexually assaulted the victim two more times. During the course of the night, he alternately pointed the gun at her and himself, threatening to commit suicide in her presence. He also threatened to kill the victim's boyfriend. At some point he put the gun in its case, but then directed her to get it out of the case and kill him with it. He finally dropped her off at her residence the next morning, after she promised to meet him later at a park. He stated, Do not deceive me. Do not make me use this gun. [¶ 7] As soon as she arrived home, the victim told her parents about the assaults and they summoned the police. When the officers attempted to contact Mr. Daves at the camper trailer where he was residing, he took off in his vehicle. After leading the officers on a chase over the icy back roads outside of Laramie, he eventually surrendered. [¶ 8] The State charged Mr. Daves with one count of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2009), one count of possession of a deadly weapon with unlawful intent in violation of Wyo. Stat. Ann. § 6-8-103 (LexisNexis 2009), four counts of first degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(ii) (LexisNexis 2009), five counts of use of a firearm while committing a felony in violation of Wyo. Stat. Ann. § 6-8-101(a) (LexisNexis 2009), and one count of kidnapping in violation of Wyo. Stat. Ann. § 6-2-201(a)(ii) (LexisNexis 2009). After a jury trial, he was convicted on all twelve charges. The district court sentenced him to serve a lengthy term of incarceration. Mr. Daves appealed.",facts
+492,1878185,1,3,"Klindt argues that the evidence was insufficient to support a charge of second-degree murder. Specifically, he claims that it was insufficient on the element of malice aforethought. See Iowa Code §§ 707.1-.3 (1983). Malice aforethought is defined as that condition of mind which prompts one to do a wrongful act intentionally, without legal justification or excuse. State v. Love, 302 N.W.2d 115, 119 (Iowa 1981) (quoting State v. McCollom, 260 Iowa 977, 988, 151 N.W.2d 519, 525 (1967)). Malice need not exist for any specific period of time; it is sufficient if it existed for any time before the killing. Love, 302 N.W.2d at 119. The use of a deadly weapon, accompanied by an opportunity for deliberation, is evidence of malice. Id. When reviewing a case for sufficiency of the evidence, we construe the record in the light most favorable to the State. State v. Moses, 320 N.W.2d 581, 586 (Iowa 1982). We have already concluded that the scientific and statistical evidence was properly admitted. There was other substantial evidence to support the verdict. The parties were locked in a bitter dissolution dispute. There was also evidence that, after Joyce's disappearance, Klindt had given conflicting statements to investigating officers. Klindt had an ongoing extramarital relationship prior to and following Joyce's disappearance, and the disappearance by Joyce was out of character for her. In addition, a witness testified she had seen Klindt putting plastic bags in his boat, then transporting them out into the river. One of the bags was said to be so heavy that it required him to use both hands to carry it. There was other evidence supporting the verdict, but it is not necessary to detail it here. We merely conclude that the evidence was sufficient. We have considered all of the arguments raised on appeal and conclude that there is no basis for reversal. AFFIRMED.",sufficiency of the evidence
+493,1418417,1,2,"As set forth in syllabus point one of Light v. Allstate Insurance Company, 203 W.Va. 27, 506 S.E.2d 64 (1998), [a] de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court. Accord Syl. Pt. 1, Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999) (This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court.). Likewise, the certified question before us requires an examination of two statutory provisions, and in such cases [w]here the issue ... is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review. Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).",standard of review
+494,2512385,1,7,"We conclude that the district court properly applied the plain meaning of under the influence and ruled that the State must prove a connection between the intoxication and the defendant's inability to drive safely. However, the district court concluded that the State did not offer sufficient evidence to the grand jury to support Burcham's indictment for being under the influence. We disagree. In reviewing a district court's order granting a pretrial petition for writ of habeas corpus for lack of probable cause, this court determines whether all of the evidence received at the grand jury proceeding establishes probable cause to believe that an offense has been committed and that the defendant[ ] committed it. [35] This court will not overturn the district court's order unless the district court committed substantial error. [36] The grand jury does not determine guilt or innocence, but instead decides whether probable cause supports the indictment. [37] The grand jury has a duty to weigh all evidence submitted to them. [38] NRS 172.155(1) requires that the grand jury, prior to indicting the accused, find probable cause to believe that an offense has been committed and that the person charged committed the crime. Further, [t]he finding of probable cause may be based on slight, even `manginal' evidence. [39] Therefore, the State's burden is not to present to the grand jury evidence that establishes guilt beyond a reasonable doubt, but enough evidence to support a reasonable inference that the defendant committed the crime charged. [40] [T]he State is not required to negate all inferences which might explain his conduct, but only to present enough evidence to support a reasonable inference that the accused committed the offense. [41] We conclude that the State presented sufficient evidence to support a reasonable inference that Burcham was driving under the influence and caused Whisman's death. A witness to the collision testified that she and Whisman, who was stopped in the lane next to her, had been stopped at the red light for at least one minute. Burcham, who was speeding, failed to stop at the red light and rear-ended Whisman, pushing his car through the intersection and into a ditch. Burcham smelled of alcohol, his eyes were bloodshot and watery, he admitted to drinking the night before, and he had a BAC of 0.07 within an hour of the collision. Based on the foregoing, the grand jury could reasonably have inferred that Burcham was under the influence to the degree that the alcohol made him incapable of driving safely. Thus, we conclude that the district court substantially erred by dismissing Burcham's indictment for being under the influence pursuant to NRS 484.3795( l )(a).",sufficiency of the evidence
+495,1700785,1,3,"We first address the landowners' contention that this Court does not have jurisdiction to decide this appeal. In the statement of jurisdiction in their brief to this Court, without any further discussion or citation to any authority, the landowners state: This Court does not have subject-matter jurisdiction because the amount involved, exclusive of interest and costs, does not exceed $10,000. Ala.Code, § 18-1A-288. Section 18-1A-288, entitled Appeal from final judgment of circuit court, provides: After entry of final judgment in the circuit court, any party may, within 42 days thereafter, upon giving bond or security for costs as in other cases, file a notice of appeal to the court of civil appeals where the amount involved, exclusive of interest and costs, does not exceed $10,000.00. Where the amount involved, exclusive of interest and costs, exceeds $10,000.00, such appeal shall be to the supreme court. (Emphasis added.) In its response to the landowners' contention that this Court lacks jurisdiction over this appeal because the amount in controversy does not exceed $10,000, ALDOT argues only that the statutory language requires that appellate jurisdiction in eminent domain cases be determined by the amount of compensation awarded for the taking. Because the taking here resulted in an award of $483,000 before interest is added, a sum well in excess of $10,000, ALDOT contends that this Court, and not the Court of Civil Appeals, has appellate jurisdiction over this case. We need not decide whether appellate jurisdiction over this case must be determined by the amount of interest in controversy or by the amount of the compensation awarded the landowners in the original judgment. Upon reviewing the parties' contentions, it becomes readily apparent that this Court has jurisdiction over this appeal. The landowners contend that the postjudgment-interest award should be $47,313.92. ALDOT contends that the postjudgment-interest award should be $2,239.87. Because the total postjudgment-interest calculation from the landowners' perspective exceeds $10,000, this case is properly within the jurisdiction of this Court. That our rejection of the landowners' contention would result in an award of less than $10,000 does not oust this Court of jurisdiction to decide the merits of the issue before us. See Harper v. Regency Dev. Co., 399 So.2d 248, 260-61 (Ala.1981). Thus, whether appellate jurisdiction is determined by the amount of interest in controversy or by the original judgment that determined the amount of compensation to be awarded to the landowners, this Court has appellate jurisdiction of this case.",jurisdiction
+496,1935782,1,1,"This case involves the reversal by the Hinds County Circuit Court of a Mississippi Real Estate Commission (hereinafter MREC) license suspension of Ruby Hennessee (hereinafter Ruby). The MREC ruled that Ruby had violated three licensing requirement sections during the sale of a home owned by her corporation and sold by her. The misrepresentations involved an undelivered termite certification for the home. The MREC ruled that Ruby was subject to disciplinary actions for failing to deliver a termite inspection certificate as she had promised prior to the sale of the home. However, the circuit court found that the record fails to reveal any substantial evidence that the appellant as a realtor made any representations that were misleading or false on the issue of termite inspection or certification and reversed the MREC. (emphasis added). Accordingly, the MREC appealed the reversal and seeks to have the license suspension reinstated. The issue on appeal is a first impression question of law in Mississippi as to whether or not a broker selling property wholly owned by the broker is subject to licensing disciplinary actions while doing so. The MREC argues that Ruby is subject to licensing disciplinary actions while selling property owned by her and that there was substantial evidence to support the suspension. Ruby argues the exact opposite, naturally. We find the MREC is correct, and therefore reverse the circuit court's ruling to reinstate the suspension properly imposed by the MREC.",introduction
+497,1858075,1,4,"Currie asserts that the district court's order, awarding Chief damages on its counterclaim, was void because the district court was divested of jurisdiction to proceed on the counterclaim once Currie perfected the appeal of the order granting summary judgment. As a general proposition, an appellate court and the tribunal appealed from do not have jurisdiction over the same case at the same time. See, e.g., State Bank of Beaver Crossing v. Mackley, 118 Neb. 734, 226 N.W. 318 (1929); County of Douglas v. Burts, 2 Neb.App. 90, 507 N.W.2d 310 (1993). Thus, we must determine which court, the district court or the Court of Appeals, possessed jurisdiction over this case at the time the trial on the counterclaim was conducted. Currie cites Nuttelman v. Julch, 228 Neb. 750, 424 N.W.2d 333 (1988), in support of the position that the district court was divested of jurisdiction to hear Chief's counterclaim once Currie perfected the appeal of the summary judgment order. In Nuttelman, the plaintiff brought a petition in ejectment against the defendants. The defendants counterclaimed, alleging that the plaintiff's petition was frivolous and vexatious, for which they sought relief by injunction and money damages. The district court dismissed the plaintiff's petition with prejudice and held that there remained justiciable issues of fact to be resolved upon the defendants' counterclaims. After the plaintiff filed an appeal of the decision to this court, the district court dismissed the defendants' counterclaims. This court held that the district court was without authority to issue an order dismissing the counterclaims. Any order made by the district court after the vesting of jurisdiction in the Supreme Court is void and of no effect. The district court lost jurisdiction the instant the appeal was perfected. Nuttelman v. Julch, 228 Neb. at 756, 424 N.W.2d at 338. Clearly, the court in Nuttelman, which is procedurally similar to the instant case, reached a result favorable to Currie's position. However, in Nuttelman, the court did not discuss the connection of the counterclaim with the subject matter of the action or analyze whether the order issued was a final, appealable order. In the instant case, Chief argues that Currie's appeal of the order granting summary judgment did not divest the district court of jurisdiction to consider its counterclaim because (1) the counterclaim arose from a separate and distinct set of operative facts than Currie's cause of action, and (2) the counterclaim was pending in the district court at the time of the appeal, making the appeal a nullity, since appellate courts are without jurisdiction to entertain appeals from nonfinal orders.",analysis
+498,1852842,1,10,"In their fourth assignment Sim's attorneys state the lower courts erred in failing to hold that, given a proper interpretation of the guardianship law, the determination that imposed guardianship and conservatorship on Mrs. Sim is contrary to the evidence in the case. This court has long recognized that each case of this type must be determined upon its particular facts. Hyde v. Crocker, 185 Neb. 428, 176 N.W.2d 234 (1970); Cass v. Pense, 155 Neb. 792, 54 N.W.2d 68 (1952). In each case the question is whether the record is such as to establish that the statutory grounds exist to appoint a guardian or conservator. The record outlined in part II of this opinion clearly and convincingly shows that at the relevant time, that is, at the time of the appointment of the guardian and conservator, Hyde v. Crocker, supra , Sim was, because of advanced age, suffering from a mental deficiency such as to render her unable to care for herself or to manage her assets. She is therefore an incapacitated person within the contemplation of § 30-2619. The record also clearly and convincingly establishes that Sim is incapable of demanding an accounting and is unable to understand any accounting her trustee might provide her. She is therefore, as more fully discussed in section 12 hereinafter, a person having property and property affairs which she cannot manage, thereby rendering her property vulnerable to waste and dissipation. Sim is therefore also within the contemplation of § 30-2630. Accordingly, there is no merit to this assignment of error.",sufficiency of the evidence
+499,6492552,1,1,"
+On June 24, 2009, Lingle issued executive order 09-02. Therein it was observed that “the widespread impact of the global financial crisis and constantly decreasing revenue projections by the [state] Council on Revenues ... forced the State of Hawaii to make drastic and unprecedented revenue and expenditure adjustments to close a budget shortfall of approximately two billion dollars ($2,000,000,000) through the fiscal biennium 2009-2011[.]” (Brackets and ellipsis added.) It observed further that, “based on the May 28, 2009 projections by the [state] Council on Revenue, the State of Hawaii is ... facing an additional deficit of seven hundred thirty million dollars ($730,000,000) through the fiscal biennium 2009-2011, resulting in an immediate fiscal emergency of unparalleled magnitudes” In light of the current revenue estimates, executive order 09-02 ordered the furlough 4 of certain state executive branch employees for a total of seventy-two work days over the fiscal biennium 2009-2011, 5 which was to become effective on July 1, 2009, and subject to certain terms and conditions. Among these terms and conditions was the requirement that the affected state executive branch employees’ pay would be “automatically adjusted” by reducing the affected employee’s pay between 13.8% and 15.8% each pay period to account for the furlough days. Although executive order 09-02 was issued on June 24, 2009, on June 1, 2009, Lingle publicly announced her plan to, among other things, furlough certain state executive branch employees for “3 days/24 hours each month, from July 1, 2009 to June 30, 2011, thereby unilaterally reducing employees’ hours and cutting employees’ wages approximately 13.8%.”
+After Lingle’s June 1, 2009 announcement, on June 16, 2009, HGEA filed a complaint in the circuit court that sought, among other things, a declaratory judgment that Lingle “cannot unilaterally impose the furloughs,” and a preliminary and permanent injunction enjoining Lingle from “unilaterally imposing” the same. HGEA based its request for relief on article XIII, section 2 of the Hawai'i constitution and HRS Chapter 89. In a first amended complaint filed on June 22, 2009, HGEA averred that Lingle “intends to unilaterally implement new procedures regarding layoffs after June 20, 2009 and impose mass state employee[ ] layoffs” “if her furlough plan is blocked by the courts.” As such, HGEA also sought a declaratory judgment that Lingle cannot “unilaterally impose new layoff procedures,” and a preliminary and permanent injunction enjoining Lingle from “unilaterally imposing” the same. On June 23, 2009, HGEA filed a motion for preliminary injunction. Briefly summarized, in its memorandum in support of its motion, HGEA asserted that collective bargaining is a constitutionally protected right and statutorily mandated. HGEA also asserted that furloughs are a “mandatory and core subject of collective bargaining” pursuant to HRS Chapter 89 and common law, and the eom-mon law “unilateral change” doctrine prevents Lingle from unilaterally imposing furloughs during the pendency of an arbitration process between it and the public employers. 6 On June 29, 2009, Lingle filed her opposition to HGEA’s motion for preliminary injunction. Among the arguments made, Lin-gle asserted that HGEA’s assertions are “predominately prohibited practices complaints that fall under HLRB’s ‘exclusive primary jurisdiction.’” Lingle also asserted that (1) the “management rights” in HRS § 89-9 (d) gives her authority to furlough “unionized workers” and these “rights” are not subject to collective bargaining, (2) the furlough order is consistent with article XIII, section 2 of the Hawai'i constitution, (3) the furlough order does not violate the unilateral change doctrine, (4) HGEA’s complaints about layoff procedures are premature and within HLRB’s jurisdiction even when ripe, (5) HGEA has not shown that they will suffer irreparable damage if the preliminary injunction is denied, and (6) the public interest requires denying the injunction. On July 28, 2009, the circuit court filed its findings of fact, conclusions of law, and order that, among other things, granted in part HGEA’s motion for preliminary injunction. 7 Therein, the circuit court made the following pertinent conclusions: (1) pursuant to United Pub. Workers, AFSCME, Local 64-6, AFL-CIO v. Yogi, 101 Hawai'i 46, 62 P.3d 189 (2002) and Malahoff v. Saito, 111 Hawai'i 168, 140 P.3d 401 (2006), Lingle’s unilateral decision to furlough certain unionized state executive branch employees “infringed on core subjects of collective bargaining [(namely, wages)], in violation of article XIII, section 2 of the Hawaii constitution[,]”; (2) pursuant to NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), “certain terms and conditions of an expired agree-inent continue in effect by operation of law” and, inasmuch as the furloughs “change wages,” the furloughs “cannot be imposed by unilateral action[,]”; (3) essentially, inasmuch as “the courts retain jurisdiction to consider constitutional claims[,]” Lingle’s assertion that the HLRB has exclusive jurisdiction over this matter is unpersuasive; (4) United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Hanneman, 106 Hawai'i 359, 105 P.3d 236 (2005) is inapposite; (5) Lingle’s reliance on the “managerial rights” provisions in HRS § 89—9(d) “to justify unilateral imposition of the furlough program cannot be accepted because it would allow lawmakers absolute discretion to define the scope of collective bargaining, thereby defeating the intent of [a]rticle XIII, [selection 2[,]”; and (6) the issues of layoff procedures and criteria are not ripe for consideration at this time. A final judgment was filed on June 28, 2009. On July 31, 2009, Lingle timely filed a notice of appeal. On September 1, 2009, Lingle filed an application to transfer her appeal from the Intermediate Court of Appeals to this court. On September 22, 2009, this court granted Lingle’s application for transfer.",facts
+500,2634905,1,1,"[¶ 2] We will re-state and re-order the issues as follows: 1. Did trial counsel provide ineffective assistance by failing to move to dismiss the immodest, immoral, or indecent liberties with a minor charges on the ground that the statute had been repealed? 2. Did trial counsel provide ineffective assistance by failing to move to dismiss the immodest, immoral, or indecent liberties with a minor charges on the ground that the statute was unconstitutional? 3. Did trial counsel provide ineffective assistance by failing to raise a hearsay objection to certain testimony by the victims' mother? 4. Did trial counsel provide ineffective assistance by failing to move for a mistrial based upon certain testimony by the victims' mother? 5. Did trial counsel provide ineffective assistance by failing to move for a judgment of acquittal? 6. Did trial counsel provide ineffective assistance by failing to object to the district court's rejection of a proposed instruction defining the word knowingly as an element of the crime of taking immodest, immoral, or indecent liberties with a minor? 7. Did trial counsel provide ineffective assistance by failing to object to portions of law enforcement officers' testimony on the ground that such was expert testimony that was inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)? 8. Do the foregoing alleged deficiencies constitute cumulative error?",issues
+501,4515769,1,1,"After a newborn reportedly tested positive for methamphetamine, the State sought to adjudicate the newborn—who had been in a hospital with his mother—and his two siblings—who lived with and received appropriate care from their grandmother—solely on the basis that the children “lack[ed] proper parental care.”1 The juvenile court declined to adjudicate them, finding that the State failed to prove they were at risk of harm. On appeal, our decision regarding the older siblings is driven by the plain meaning of the statute on the State’s chosen ground, its choice not to allege any other ground, and its failure to establish that the mother exposed or threatened to expose them to her drug usage. We affirm the juvenile court’s decision as to them. But because the evidence demonstrated that the newborn lacked proper parental care due to his mother’s fault or habits, we reverse the court’s decision as to him and remand the cause for further proceedings.",introduction
+502,2331585,1,51,"Appellee Hoge contends that since appellant Elliott appealed from the November 14, 2001, order rather than the November 30, 2001 amended order, he did not appeal a final order and therefore this court does not have jurisdiction to hear the appeal. See D.C.Code ง 11-721(a)(1). Hoge posits that a ruling on a pending motion by a trial court cures prematurity only where the court later ruled upon the pending motion without modifying the judgment being appealed. Circle Liquors, Inc. v. Cohen, 670 A.2d 381, 385 n. 8 (D.C.1996). See also D.C.App. R. 4(a)(2) (The running of time for filing a notice of appeal is terminated as to all parties by the timely filing of [a motion]. . . to amend the order.) Hoge contends Circle Liquors means that this court does not have jurisdiction to hear Elliott's appeal because the trial court modified the order from which Elliott appealed. In Circle Liquors, the motion in question was a Motion to Amend Judgment. Id. The timely filing of such a motion renders the judgment in the case non-final and that, in turn, denies this court jurisdiction to hear any appeal from that particular judgment. Dyer, supra, 635 A.2d at 1288. However, when a requested amendment raises issues that are, for all practical purposes, `collateral to and separate from the decision on the merits,' the order disposing of the merits remains appealable. Weaver v. Grafio, 595 A.2d 983, 986 (D.C.1991) (citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988)). See Words, Inc. v. Singer, 810 A.2d 910 (D.C. 2002). Moreover, if the trial court later rules on the pending motion without modifying the judgment being appealed, Circle Liquors, supra, 670 A.2d at 385 n. 8, the premature filing of the appeal does not divest this court of jurisdiction. The charitable beneficiaries' motion to amend the order requested only the addition of explanatory material. It did not ask the trial court to modify either the portion of the judgment removing Elliott, or the portion of the judgment appointing Hoge. The motion merely sought an explanation as to why there was good cause for removing Elliott and for not appointing his wife as his successor. Therefore, the order Elliott appealed from was immediately appealable and remained so. See, e.g., Budinich, supra, 486 U.S. at 196, 108 S.Ct. 1717 (holding that a judgment disposing of the merits but leaving open the question of attorneys' fees is a final, appealable order); Weaver, supra, 595 A.2d at 983 (holding that judgment disposing of all issues except Rule 11 sanctions should be treated as immediately appealable). Since that is so, Elliott's appeal was not premature, and this court has jurisdiction.",jurisdiction
+503,2011381,1,6,"Finally, Wright argues that the jury's verdict was not supported by sufficient evidence. When evaluating this claim, we do not reweigh evidence or assess the credibility of witnesses. A conviction will be affirmed if probative evidence was presented at trial that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995). Instead of challenging the State's evidence, Wright's claim on this point amounts to disputes over the inferences (e.g., motive and state of mind) that may be drawn from the evidence, and a request that this Court reweigh parts of the State's case. This is not within our province on appeal. Accordingly, Wright's claim of insufficient evidence also fails.",sufficiency of the evidence
+504,1254899,1,2,"We review attorney disciplinary proceedings de novo. Iowa Ct. R. 35.10(1). Although we give weight to the commission's factual findings, especially when considering the credibility of witnesses, we are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. O'Brien, 690 N.W.2d 57, 57 (Iowa 2004). The board has the burden to prove the allegations of misconduct contained in the complaint by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). While this burden is higher than the burden in civil cases, it is lower than in a criminal prosecution. Id.; accord Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996).",standard of review
+505,1746896,1,3,"Weaver contends the evidence was insufficient to support the conviction. We review a trial court's findings in a jury-waived case as we would a jury verdict: If the verdict is supported by substantial evidence, we will affirm. State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993). In this case, the elements of second-degree sexual abuse are the defendant's (1) commission of a sex act (2) against a child under twelve. Iowa Code §§ 709.1(3), 709.3(2). A sex act means sexual contact including contact between the genitalia of one person and the genitalia or anus of another or contact between the finger or hand of one person and the genitalia or anus of another. Iowa Code § 702.17. Weaver does not seriously challenge the State's proof that a sex act was committed. His focus is on the State's proof regarding the identity of the perpetrator. He strongly attacks the credibility of his wife, Ramona, the victim's mother. He contends her testimony is improbable, her actions absurd, and her claims about the [defendant's blood-stained] sweatpants impossible. The district court, however, had a different view of her credibility, making an express finding that [t]he court finds Ramona Weaver to be a very credible person. Determinations of credibility are in most instances left for the trier of fact, who is in a better position to evaluate it. State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986). We defer to the court's assessment of credibility here; there is substantial evidence to support the court's finding. In addition, the guilt of the defendant was strongly supported by the physical evidence on which the court relied. Blood stains were found on the defendant's underwear. Blood stains were found on the front crotch area and back leg area of the defendant's sweatpants. The blood stains on the sweatpants contained the victim's DNA. Swabs of the defendant's penis revealed blood stains, and according to the doctor's examination, this was not the defendant's blood. We conclude the verdict was supported by substantial evidence.",sufficiency of the evidence
+506,2227773,1,4,"At the outset, we note that the proper procedure by which to challenge a counterclaim is a motion to strike. Barks v. Cosgriff Co., 247 Neb. 660, 529 N.W.2d 749 (1995); Weller v. Putnam, 184 Neb. 692, 171 N.W.2d 767 (1969). However, Hobbs has waived his right to assign this procedural error because he has not objected to it. Hobbs argues, first, that his amended, operative answer asserts a counterclaim. He then argues that either (1) Becker's petition tolled the statute of limitations against the counterclaim, asserting that our case law, including Davis Erection Co. v. Jorgensen, 248 Neb. 297, 534 N.W.2d 746 (1995), directs such a result, or (2) the applicable statute of limitations, § 25-207, does not apply to counterclaims. Hobbs alternatively contends that his counterclaim effectively asserts the defense of recoupment and is not subject to any statute of limitations. Becker asserts that Hobbs' counterclaim requests affirmative relief and thus cannot be construed as anything but a counterclaim. He then claims that Hobbs' counterclaim is barred because of § 25-207, which states that a personal injury action can only be brought within 4 years of the injury, and because of our decision in Ed Miller & Sons, Inc. v. Earl, 243 Neb. 708, 502 N.W.2d 444 (1993). In Ed Miller & Sons, Inc., we stated that a counterclaim is barred by a statute of limitations unless the counterclaim is filed within the applicable statutory period for commencement of an action. Initially, we must determine the question of whether Hobbs' operative answer on appeal pleads a counterclaim or a recoupment defense. If the answer pleads recoupment, then Hobbs prevails, because the defense of recoupment survives as long as plaintiff's cause of action exists, even if affirmative legal action upon the subject of recoupment is barred by the statute of limitations. Nathan v. McKernan, 170 Neb. 1, 16, 101 N.W.2d 756, 766 (1960). Although a pleading should not leave uncertainty as to the theory on which the pleader wishes to proceed, we have held that in actions not involving extraordinary remedies, general pleadings are to be liberally construed in favor of the pleader. See, Fitzpatrick v. U.S. West, Inc., 246 Neb. 225, 518 N.W.2d 107 (1994); Hutmacher v. City of Mead, supra . It is the facts well pleaded, not the theory of recovery or legal conclusions, which state a cause of action. McCurry v. School Dist. of Valley, 242 Neb. 504, 496 N.W.2d 433 (1993). A counterclaim in this jurisdiction  `must be an existing, valid, and enforceable cause of action in favor of the defendant against the plaintiff.'  McGerr v. Marsh, 148 Neb. 50, 58, 26 N.W.2d 374, 378 (1947). It must be one in favor of a defendant and against a plaintiff between whom a several judgment might be had.... Neb.Rev.Stat. § 25-813 (Reissue 1995). On the other hand, recoupment can only be used defensively. See In re Estate of Massie, 218 Neb. 103, 353 N.W.2d 735 (1984), overruled on other grounds, In re Estate of Price, 223 Neb. 12, 388 N.W.2d 72 (1986). In summary, there is a difference between recoupment and a counterclaim. The former is purely defensive, while the latter seeks to recover an affirmative judgment. Katskee v. Nevada Bob's Golf of Neb., 238 Neb. 654, 659, 472 N.W.2d 372, 377 (1991). Hobbs' answer pleads the necessary facts to assert an independent negligence action, it seeks damages independent of those demanded by Becker, and although it contains some language to the contrary, it seeks an independent judgment for all damages Hobbs alleged he incurred. Thus, we conclude Hobbs' answer asserts a counterclaim. The issue then is whether Hobbs' counterclaim is barred by the statute of limitations, when the applicable statute of limitations had not yet run on the date Becker's petition was filed, but had run at some point before the date Hobbs' counterclaim was filed. This is the first time this court has been presented with this precise issue. In Davis Erection Co. v. Jorgensen, 248 Neb. 297, 306, 534 N.W.2d 746, 751 (1995), we stated: A counterclaim, setoff, or cross-petition, to be available as a matter of affirmative defense or affirmative relief, must be a claim upon which the defendant could, at the date of the commencement of the plaintiff's suit, have maintained an action on the defendant's part against the plaintiff. See, Weller v. Putnam, 184 Neb. 692, 171 N.W.2d 767 (1969); Simpson v. Jennings, 15 Neb. 671, 675, 19 N.W. 473, 475 (1884) (stating that a claim on the part of a defendant... against the claim of a plaintiff against him must be one upon which he could, at the date of the commencement of the suit, have maintained an action on his part against the plaintiff). This rule is consistent with the statutory requirement that a counterclaim... must be one in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action.... § 25-813. Hobbs asserts that once a counterclaim meets the requirement that it would not have been time barred on the date the plaintiff's petition was filed, that determination is conclusive of the issue, and the counterclaim may be pursued. While Hobbs' interpretation would be consistent with Davis Erection Co. and Weller, those cases did not present the same factual circumstances, nor did they address the precise issue before us. In the instant case, the facts present a counterclaim that was enforceable as an independent action on the date the plaintiff's petition was filed but not independently enforceable on the date the counterclaim was filed. Thus, Davis Erection Co. and Weller are not controlling on the issue before us, and we must determine if the law provides any additional statute of limitations requirements for counterclaims. Section 25-207, the applicable statute of limitations to both negligence claims in the instant case, reads in pertinent part: The following actions can only be brought within four years: ... (3) an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated. (Emphasis supplied.) A counterclaim in this jurisdiction must by definition be an enforceable cause of action in favor of the defendant. See McGerr v. Marsh, 148 Neb. 50, 26 N.W.2d 374 (1947). Therefore, a reading of § 25-207 suggests that a counterclaim, as an action, be considered separately from the action within the plaintiff's petition when applying the statute of limitations. However, a reading of related statutes in conjunction with § 25-207 suggests that a counterclaim not be considered separately from the related petition. Section 25-201 states: Civil actions can only be commenced within the time prescribed in this chapter, after the cause of action shall have accrued. Section 25-217 reads in part: An action is commenced on the date the petition is filed with the court. (Emphasis supplied.) Statutes relating to the same subject matter will be construed so as to maintain a sensible and consistent scheme and so that effect is given to every provision. State ex rel. City of Elkhorn v. Haney, 252 Neb. 788, 566 N.W.2d 771 (1997). Section 25-217 states that actions are commenced, or brought, to use the applicable word in § 25-207, on the date the petition is filed. To conclude that an action commences on a date other than that on which the petition is filed would render § 25-217 superfluous. For purposes of the limitation statutes found within chapter 25, article 2, a counterclaim, as an action, is therefore commenced on the date the plaintiff's petition is filed. It follows then that whether a counterclaim is barred by the applicable statute of limitations is determined by the date the plaintiff's petition was filed, rather than the date the counterclaim was filed. Becker argues that our conclusion here is contradictory to our decision in Ed Miller & Sons, Inc. v. Earl, 243 Neb. 708, 502 N.W.2d 444 (1993). In Ed Miller & Sons, Inc., the plaintiff sued upon a written lease contract for unpaid rent and repairs, on which the statute of limitations had not yet run. The defendant pleaded fraud both as a defense of recoupment and as a counterclaim in two separate areas of his pleading. In determining that the defendant's counterclaim in Ed Miller & Sons, Inc. was barred by the applicable statute of limitations, we stated: A counterclaim, seeking an affirmative judgment or relief, is barred by a statute of limitations unless the counterclaim is filed within the applicable statutory period for commencement of an action. Id. at 718-19, 502 N.W.2d at 452. In Ed Miller & Sons, Inc., unlike the instant case, the applicable statute of limitations had run on the counterclaim prior to the date that the plaintiff filed its petition. In fact, the statute of limitations on the counterclaim in Ed Miller & Sons, Inc. had run more than a year before the plaintiff filed its petition. See, § 25-207; Ed Miller & Sons, Inc., supra (plaintiff filed petition in December 1989 and defendant discovered evidence in January 1984 that indicated that alleged statement by plaintiff was misrepresentation). Thus, the defendant's counterclaim in Ed Miller & Sons, Inc. did not meet the requirement that the counterclaim be a viable action on the date that the plaintiff's petition is filed and our conclusion is not contradictory to the facts in Ed Miller & Sons, Inc. Moreover, policy and fundamental fairness also support a rule providing that the date the plaintiff's petition is filed determines whether a counterclaim is time barred. A statute of limitations provides a period of repose designed, if asserted, to prevent recovery on stale claims. Hullinger v. Board of Regents, 249 Neb. 868, 546 N.W.2d 779 (1996). The main purpose of a statute of limitations is to notify the defendant of a complaint against him or her within a reasonable amount of time so that the defendant is not prejudiced by having an action filed against him or her long after the time he or she could have had to prepare a defense against a claim. Id. at 873, 546 N.W.2d at 784. Hobbs' claim, arising from the same facts and the same theory of recovery as Becker's claim, is no more stale than Becker's claim. Becker cannot claim prejudice by unfair surprise or an inability to prepare a defense to Hobbs' claim. Indeed, a counterclaim in this state must always arise from the same contract, transaction, or subject matter as the plaintiff's action, see § 25-813, and be an enforceable cause of action when the plaintiff's petition is filed, see Davis Erection Co. v. Jorgensen, 248 Neb. 297, 534 N.W.2d 746 (1995). We do not perceive how a plaintiff can be prejudiced by having a counterclaim filed against him or her that became unenforceable as an independent cause of action only after his or her petition was filed. On the other hand, a rule that a statute of limitations continues to run against a counterclaim until it is actually filed would encourage great mischief. A plaintiff with a relatively weak claim, knowing that the defendant has a claim that could more than defeat the plaintiff's claim, could wait until the eleventh hour to file a petition and wait beyond the statute of limitations to serve process on the defendant, precluding any possibility of the defendant's being able to counter the plaintiff's action. The purpose of a statute of limitations is to prevent recovery of stale claims. The purpose is not intended to bar nor smother any mere defense of a party so as to compel him to stand dumb and mute while his antagonist bludgeons his head with every weapon in the book of legal, offensive warfare. (Emphasis omitted.) Liter v. Hoagland, 305 Ky. 329, 332, 204 S.W.2d 219, 220 (1947). Hobbs' counterclaim would not have been barred by the applicable statute of limitations, § 25-207, had he asserted it as an independent cause of action on the date Becker's petition was filed. Thus, Hobbs' counterclaim is not barred by the statute of limitations. With this conclusion, we need not consider Hobbs' other assigned errors.",analysis
+507,1688754,1,2,"On December 4, 1982, around 8:30 in the morning, the Super Stop convenience store located at the corner of Eighth Street and 29th Avenue in the City of Meridian, was robbed and Mrs. Eileen Grogan, the attendant, was brutally murdered. Her body was discovered in the back room of the Super Stop, nude from the waist down with her bra and shirt pulled up under her chin. The victim's underclothes were never located. According to the pathologist, who examined the body, Mrs. Grogan had been struck on the head with a blunt object causing a depression fracture to the skull. She had experienced sexual intercourse at some undetermined period of time prior to her death. The cause of death was established as strangulation. The Meridian Police Department received a call from a customer of the Super Stop, who had become suspicious, around 8:30 on the morning of the homicide, indicating to the police that a black male had waited on him; that the person didn't know how to use the cash register; and that he didn't know the prices of some of the merchandise. The first officer to arrive at the scene was Carl Molony. When he entered the store, the black male took the officer's gun and shot Molony twice with it, seriously injuring him. Molony managed to radio to the police department for more assistance, which was immediately forthcoming. The store was surrounded, tear gas was thrown into it, the fire department was called, and a hole was cut through a wall into the back room where Mrs. Grogan's body was found. Officer Molony survived the gunshot wounds inflicted on him, but was unable to remember what occurred.",introduction
+508,2582249,1,1,[¶ 2] Warnick Ranches states its issue on appeal as: Did the District Court abuse its discretion in excluding evidence offered by [Warnick Ranches] regarding the costs of liquidating partnership assets in determining the buy-out price of a dissociated partner under W.S. § 17-21-701(b)?,issues
+509,1059162,1,1,"This litigation involves multiple disputes arising out of a contract for construction of a waste water treatment facility located in Fairfax County (the Project). UOSA, the owner of the facility, is a public authority created pursuant to the Virginia Waste and Water Authorities Act, Code § 15.2-5100 through -5158, to provide waste water reclamation for its member jurisdictions, the counties of Fairfax and Prince William and the cities of Manassas and Manassas Park. As a public authority, UOSA is subject to the Virginia Public Procurement Act, Code § 2.2-4300 through -4377 [1] (the VPPA). Blake Construction Co., Inc. and Poole & Kent Corporation formed the Joint Venture in order to submit a bid for the Project. The Joint Venture's bid was successful, and the Joint Venture agreed to furnish all labor, materials, and equipment for the Project in a contract dated December 10, 1996 (the Contract). The Contract allows the Joint Venture to obtain an increase in the contract price and/or an extension of time to complete certain work upon written application to UOSA pursuant to procedures set forth in the Contract. The Joint Venture began work on the Project in January 1997 which is ongoing at the time of this appeal. During the course of the work, numerous changes were made to the original contract, some of which are in dispute and resulted in the proceedings now at bar. Procedures set forth in the Contract allow the Joint Venture to obtain an increase in the contract price and/or an extension of time to complete certain work upon written application to UOSA. If UOSA issues an adverse final decision on the claim (i.e. denies the claim), the VPPA allows the Joint Venture to appeal that final decision to the circuit court within six months of the date of the final decision on the claim by the public body for a de novo determination of its claim. See Code § 2.2-4363(D). [2] As the Project remains ongoing, this has engendered litigation by the parties while their contractual relationship continues. The Joint Venture filed six lawsuits appealing adverse claim decisions by UOSA which were eventually consolidated by order of the trial court (collectively, the consolidated cases). UOSA filed a plea in bar to approximately sixty of the claims pled by the Joint Venture in the consolidated cases. The plea in bar alleged that the Joint Venture failed to comply in a timely manner with various contractual and statutory procedural requirements. On September 28, 2001, the jury returned a verdict in the plea in bar proceeding on a special verdict form noting separate adjudications for each claim. [3] Pursuant to that verdict, the trial judge, Judge Roush, entered an order on October 24, 2001 (the October 24th order), denying UOSA's plea in bar on twenty-nine of the Joint Venture's claims. The October 24th order also included this stipulation: The parties also stipulate that the Amended Motion for Judgment and Declaratory Judgment filed in Law 193766 contains no claim for unspecified delays or manipulation of schedule other than as may be included in any specific claim itemized therein. [4] Both parties made post-trial motions to set aside portions of the verdict, which the trial court denied. The remaining issues in the consolidated cases were set for a trial on the merits to begin June 17, 2002. While the plea in bar trial primarily dealt with the notice and timely filing procedural requirements of certain claims, separate issues were raised by the Joint Venture through the amended motion for judgment and declaratory judgment in Law #193766. The Joint Venture asserted, in part, a violation of the VPPA regarding a bar on damages for unreasonable delay, which is the subject of the companion appeal, Blake Construction Co., Inc./Poole & Kent v. Upper Occoquan Sewage Authority, 266 Va. 564, 587 S.E.2d 711 (2003) (today decided). The declaratory judgment action also requested a declaration that UOSA materially breached the Contract and the Joint Venture was thus entitled to [r]ecover the reasonable value of its services performed to the date of termination, plus a reasonable allowance for overhead and profit. In supplemental responses to interrogatories prior to the scheduled trial date, the Joint Venture calculated its damages [b]ecause UOSA is in material breach of the Contract. The Joint Venture's measure of damages was its reasonable costs incurred in prosecuting the work plus the Joint Venture's [General & Administrative] overhead less that which has already been paid. As of February 28, 2002, the Joint Venture represented its material breach damages to be $63,258,497. UOSA filed a motion to strike damages for material breach on January 25, 2002. After a hearing on February 8, 2002, Judge Roush denied the motion. Ruling from the bench, she said the Joint Venture's declaratory judgment pleading is a classic use of a declaratory judgment action, I think it's appropriate. That same day, Judge Roush entered an order (the February 8th order), memorializing the bench ruling which provides in pertinent part: [i]t appearing that the motion to strike the Joint Venture's damages for material breach should be denied, it is therefore ORDERED that UOSA's motion to strike the Joint Venture's damages for material breach be and hereby is denied. Judge Finch, substituting for Judge Roush, opined from the bench during a May 23, 2002, pretrial hearing that material breach is no longer an issue ... therefore, the effect is that all damages regarding material breach are to be excluded from the trial of these consolidated cases. No order appears in the record to implement or explain Judge Finch's remarks from the bench. The Joint Venture non-suited the material breach claim and all remaining claims in the consolidated cases on May 29, 2002. UOSA subsequently filed an application for costs pursuant to Code § 2.2-4335(C) seeking $2,962,715.13. The trial court held an evidentiary hearing on UOSA's application for costs and subsequently granted the Joint Venture's motion to strike. We granted UOSA this appeal.",facts
+510,1904856,2,4,"[¶ 31] The Planning Board decided in 2005 that Poland Spring met the requirements of the ordinance and issued the permit; in 2007 it did not revisit the ordinance's requirements, rather it decided only that Poland Spring did not satisfy the additional low impact criterion considered as a result of the Superior Court's remand and therefore denied the permit. Because the court erred in remanding the matter once it concluded that substantial evidence supported the Planning Board's finding that the requirements of the ordinance had been satisfied, the actions taken by the Planning Board in 2007 were nugatory. [10] See Brackett v. Town of Rangeley, 2003 ME 109, ¶ 27, 831 A.2d 422, 430 (Alexander, J., concurring) (When a public officer or agency exceeds its statutory authority or proceeds in a manner not authorized by law, its resulting orders, decrees or judgments are null and void....). Accordingly, we turn to a review of the Planning Board's original decision. [¶ 32] Throughout the permitting process, both the Fryeburg Board of Appeals and the Superior Court acted only in an appellate capacity. We therefore review the Planning Board's 2005 decision directly for abuse of discretion, errors of law, or findings not supported by substantial evidence in the record. Griswold, 2007 ME 93, ¶ 9, 927 A.2d at 414 (quotation marks omitted); see Gensheimer, 2005 ME 22, ¶¶ 7, 16, 868 A.2d at 163, 166 (stating the general rule that [w]hen the Superior Court acts as an appellate court, we review directly the operative decision of the municipality (quotation marks omitted); also stating that [when] the proper role of the Board of Appeals ... is appellate review, the decision of the Planning Board is the operative decision of the municipality (quotation marks omitted)). Substantial evidence exists when a reasonable mind would rely on that evidence as sufficient support for a conclusion. Griswold, 2007 ME 93, ¶ 9, 927 A.2d at 414 (quotation marks omitted). [¶ 33] The Planning Board's factual findings are reviewed deferentially; we do not substitute our own judgment for that of the Board. Id., 927 A.2d at 414-15. To the contrary, [t]he fact that the record before the Board is inconsistent or could support a different decision does not render the decision wrong; the Board's decision should be vacated only if no competent evidence exists in the record to support it. Id., 927 A.2d at 415. In contrast to the deferential review accorded the Planning Board's factual findings and conclusions, its interpretation of the ordinance to which those facts are applied presents a question of law subject to de novo review. JPP, LLC v. Town of Gouldsboro, 2008 ME 194, ¶ 8, 961 A.2d 1103, 1105. [¶ 34] In its 2005 written decision, the Planning Board recognized its obligation to apply the land use ordinance impartially, and identified the applicable provision as section 5(D), governing omitted uses: [11] [Poland Spring's] application has clearly raised concerns by residents in the general proximity of the proposed use. Significant activity to oppose the use has been generated and has been reflected in the input at Planning Board meetings and in the public hearing on the application. The Board notes also, that a number of residents have supported the use.... While the concerns expressed are deeply believed by their proponents, the Board must apply the Ordinance, and not treat the relative positions of citizens and the applicant as a referendum, with a decision based on the weight of opinion, rather than the provisions of the Ordinance itself. The core concern of the opponents to this application relate to allowance of the proposed use in a rural residential zone. As indicated below, the Board decisions are based on Section 5D of the [ordinance]—Uses Omitted from the Land Use Table. In applying this section, the Board must deal with the Ordinance as it exists today. [¶ 35] Section 5(D) required the Planning Board to determine whether Poland Spring had shown that (1) the soils, location and lot were suitable for the loadout facility; (2) the facility would not unreasonably interfere with adjacent landowners' use and enjoyment of their property; (3) the use would conform to all other requirements of the district involved; and (4) the facility met the performance standards of section 16 of the ordinance. The Board's findings on each of these requirements are discussed below.
+[¶ 36] The Planning Board found that the proposed project satisfied the soils, location and lot requirements based on information in the permit application and a geotechnical report submitted by an engineering firm advising Poland Spring. In its brief, the Town concedes that [t]he Court may assume the soils and lot size are suitable for the project. [¶ 37] The permit application included a significant amount of information concerning access control and traffic, landscaping and screening, erosion control, stormwater runoff, and environmental impact. The submission was accompanied by numerous detailed drawings prepared by the engineering firm showing the specifics of the plan. The information before the Board provided substantial evidence to support its finding that the project satisfied this provision.
+[¶ 38] Putting primary focus on the concerns of abutting landowners, the Planning Board found that the measures proposed by Poland Spring, coupled with the conditions the Board attached to the permit, resulted in the project avoiding unreasonable interference with nearby landowners. Specifically, the Board found: (1) The project, located at least 300 feet from the nearest residence, [12] would not be visible from the road or from adjacent residential properties. Those buffers substantially exceed the required setbacks for a rural residential use, and for any other use within Fryeburg zoning districts; (2) There was no evidence that exhaust fumes would likely be transmitted through the vegetative barrier around the facility given Poland Spring's indication that its drivers do not idle their vehicles while waiting to be filled or while filling. The actual period of engine operation while the trucks are on site is quite limited; (3) With respect to lighting, in addition to the ordinance standards already in place, Poland Spring indicated that limited lighting would be used consisting of cut-off fixtures that would not reflect beyond the boundaries of its lot; (4) The Board was satisfied that the project would meet the ordinance's noise requirements by an extensive noise study submitted by a professional engineer. The study concluded that noise sources likely to be regulated by the Fryeburg Land Use Ordinance will generate sound levels at or below the applicable sound level limits without additional noise mitigation; (5) Any impact on property values would be speculative, therefore the Board could not find that such a potential impact constituted unreasonable interference; (6) Poland Spring agreed to finance signs through the Maine DOT prohibiting engine braking in the area, and agreed to instruct its drivers not to use engine braking; and (7) The project would occupy a cleared area consisting of three acres out of a 59.3 acre site, and would be buffered on all sides. The remainder of the parcel would be left in tree growth. [¶ 39] Beyond the measures proposed by Poland Spring, the Planning Board attached twelve conditions to the permit designed to reduce the impact of the loadout facility. They included construction of a 14 foot-high noise attenuation barrier to be approved by the code enforcement officer (CEO); a requirement that Poland Spring work with adjacent landowners to minimize any glare from lighting; a requirement that Poland Spring erect signs prohibiting engine braking and bar its drivers and contractors from using engine braking; the erection of appropriate entry/exit signs on Route 302; construction of a ten-foot shoulder along the approach/entry/exit portion of Route 302; financing a post-occupancy study to be commissioned by the Board, with a fair contribution toward the remediation of any deficiencies identified; introduction of a Share the Road educational effort; maintenance of the parcel in tree growth, except for the portion actually used for the facility; limits on truck loading events at the facility—two per hour during the hours of 6:30-8:30 A.M., 2:30-3:30 P.M., and 5:00-7:00 P.M., four per hour otherwise, with a maximum of fifty per day; mandatory water loading reports to the CEO and mandatory inspections of the facility by the CEO; and construction of the water pipeline according to Maine Department of Environmental Protection best management practices, as verified to the CEO by an independent professional peer review. [¶40] The Planning Board also noted that the ordinance provides for the possibility of uses other than residential use in the rural residential district, and therefore determined that a subjective expectation by landowners that only residences would be permitted did not by itself create an unreasonable interference with their use and enjoyment of their property. Finally, while the Board discussed the project's traffic impact in detail in its consideration of whether the project satisfied the requirements of section 16 of the ordinance, it concluded that highway safety on Route 302, a state highway, was not a basis for finding unreasonable interference with the use and enjoyment of private property. [¶ 41] Giving proper deference to the Planning Board's fact-finding, on this record we cannot say that the Board's decision on this point was not supported by substantial evidence.
+[¶ 42] As discussed above, we construe the requirements of the district involved clause of section 5(D) to mean the requirements of section 14 of the ordinance, a conclusion assumed by the Planning Board. [¶ 43] The Board found that the project met the dimensional standards of section 14, a finding that no party has challenged. After some debate, the Board decided that it needed to consider the purpose clause of section 14 as well. It found that Poland Spring's proposal was consistent with the stated purpose of the rural residential district in four ways: (1) The project was a natural resource based business. The Board found that the project was centered around water as a commodity, like timber harvesting or mineral extraction, which are specifically allowed uses in the district; (2) The project furthered land in the Tree Growth tax classification and other forest land by maintaining fifty-six of the fifty-nine acres in the parcel as forested; (3) The project maintain[ed][a] rural land use pattern by limiting its geographical and visual impact in a way similar to other currently-existing uses; and (4) The project was a non-intensive ... business[] interspersed among large open spaces. The Board based this finding on the permit restrictions limiting truck loading events to two per hour during peak school bus and commuting times, and four per hour otherwise, with a maximum of fifty per day. The Board noted that for eight months out of the year, the expected number of loads would average twenty-two per day. [¶ 44] Of these four findings, the Superior Court addressed only the first and last, ruling that the proposed facility was not a natural resource-based business before concluding that substantial evidence supported the Planning Board's non-intensive finding. The purpose statement of section 14 is a list of broadly-described goals; it does not assign particular weight to any single consideration. Given the Board's factual findings made when analyzing the impact of the project on adjacent landowners, which are supported by substantial evidence, its conclusion that the project was consistent with the purpose of the rural residential district was not erroneous.
+[¶ 45] Section 16 of the ordinance sets out general performance standards applicable to any land use or building project. The Planning Board made findings on each of the section's twenty categories, concluding that Poland Spring's proposal met the standards. The Superior Court agreed, as does the Town on appeal. [¶ 46] The provision of section 16 most in controversy was section 16-B, dealing with access control and traffic impact. The Board considered a traffic impact study prepared by an engineering firm and submitted with Poland Spring's original application, as well as a technical traffic peer review conducted at the Town's request by an engineering firm not connected with the project. The study concluded that the project presented no major traffic concerns, and the peer review generally agreed with that assessment. [13] Taking into account the data compiled by the two engineering firms, the Planning Board made detailed findings and concluded that the project complied with section 16-B. The engineering studies provide competent evidence to support the Board's conclusion. [¶ 47] In sum, then, the Planning Board's finding that Poland Spring's proposed project complied with the requirements of section 5(D) of the Fryeburg land use ordinance was supported by substantial evidence in the record, and the Board's analysis reveals no error of law. [14] Accordingly, the Superior Court erred in not affirming the Planning Board's decision to grant Poland Spring a land use permit. The entry is: Judgment vacated; remanded for entry of judgment affirming the Fryeburg Planning Board's approval of the land use permit.",sufficiency of the evidence
+511,2052501,1,15,"Defendant argues that the evidence was insufficient to establish his guilt beyond a reasonable doubt. We disagree. When a defendant challenges the sufficiency of the evidence supporting his conviction, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985). It is the trier of fact's responsibility to determine the witnesses' credibility and the weight given to their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences from the evidence; we will not substitute our judgment for that of the trier of fact on these matters. People v. McDonald, 168 Ill.2d 420, 448-49, 214 Ill.Dec. 125, 660 N.E.2d 832 (1995). Defendant was convicted based upon the statements of four eyewitnesses. He points out that two of these witnesses, Epton and Taylor, later recanted their identifications. It is well settled that the recantation of testimony is generally regarded as unreliable, and it is for the trier of fact to determine the credibility of the recantation testimony. People v. Fields, 135 Ill.2d 18, 43, 142 Ill.Dec. 200, 552 N.E.2d 791 (1990). Taylor's recantation was made under suspicious circumstances. We note that Taylor's aunt testified that Taylor told her that he was being forced to change his testimony. Further, Taylor's recantation came during a truce between the Gangster Disciples and the Black Disciples. When Taylor recanted his statement, he denied that he came to court with a man seated in the back row, but later left the courtroom with that man. Finally, Detective Kill's testimony showed that Taylor was being threatened by the Black Disciples when he gave his original statement. We do not believe that the trier of fact was required to believe Taylor's recantation testimony rather than his trial testimony. Regarding Epton, there are two different versions of what he saw: his trial testimony, in which he said that he did not see who did the shooting, and the statement he gave to Javan Deloney's attorney, in which he said that defendant was the only person he could identify. It was for the trier of fact to determine which of these versions to believe. Viewing the evidence in the light most favorable to the State, we believe the trier of fact could have reasonably believed that the statement Epton gave that implicated defendant was truthful and that its subsequent recantation was untruthful. Defendant has not given us any persuasive reason to substitute our judgment for that of the trial judge on this matter. Defendant also argues that the accounts given by the witnesses conflicted in some respects. However, the record shows that the witnesses' statements varied only in minor respects, which is to be expected anytime several persons witness the same event under traumatic circumstances. See People v. Rodriquez, 100 Ill. App.3d 244, 248, 55 Ill.Dec. 440, 426 N.E.2d 586 (1981) (holding that conflicts in testimony did not create a reasonable doubt of guilt and that it was unrealistic for witnesses to a sudden, violent event to describe the event with perfect accuracy). Their statements were generally consistent in regard to how the event unfolded, the taxicab being involved, defendant being on the passenger side of the cab, and the gunfire coming from the passenger side. There were discrepancies as to how many cars were involved, whether defendant was in the front or the rear passenger seat, whether the cab's sign was lit, and whether anyone was leaning out of the cab. However, we do not believe these discrepancies were such that a rational trier of fact could not have found defendant guilty beyond a reasonable doubt. In challenging the sufficiency of the evidence, defendant also argues with respect to the suggestiveness of the identification procedures used. Defendant further argues with respect to the reliability factors, and argues that the witnesses did not have a good opportunity to view the offenders, there was a considerable length of time between the offense and the identifications, and the witnesses were under pressure to make a certain identification. However, these arguments are better directed toward the admissibility of the statements. As stated in the previous discussion, defendant waived his right to challenge the admissibility of Hall's and Epton's statements. With respect to Cruthard, we have already determined that his identification was sufficiently reliable because it had an independent origin. Once the statements are determined to be admissible, our standard of review is limited to the Collins standard of determining whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found defendant guilty beyond a reasonable doubt. See Enis, 163 Ill.2d at 398-400, 206 Ill.Dec. 604, 645 N.E.2d 856. Four eyewitnesses testified to seeing defendant in the taxicab, and two of them saw him shooting. Any issues involving their credibility were for the trial judge to resolve. Viewing the evidence in the light most favorable to the State, we believe that a rational trier of fact could have found defendant guilty beyond a reasonable doubt.",sufficiency of the evidence
+512,2520876,1,2,"
+This court reviews the circuit court's denial and granting of attorney's fees under the abuse of discretion standard. The trial court abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Stated differently, an abuse of discretion occurs where the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant. TSA Int'l Ltd. v. Shimizu Corp., 92 Hawai'i 243, 253, 990 P.2d 713, 723 (1999) (citations, brackets, and internal quotation marks omitted).
+When interpreting rules promulgated by the court, principles of statutory construction apply. Interpretation of a statute is a question of law which we review de novo.  Molinar v. Schweizer, 95 Hawai'i 331, 334-35, 22 P.3d 978, 981-82 (2001) (citations and quotation marks omitted).",standard of review
+513,1657755,1,6,"Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Weeder v. Central Comm. College, 269 Neb. 114, 691 N.W.2d 508 (2005). In this case, the State argues that Smith's appeal should be dismissed for lack of jurisdiction because Smith did not timely appeal the order of August 9, 2001. In order to initiate an appeal, a notice of appeal must be filed within 30 days after entry of the judgment, decree, or final order. See Neb.Rev.Stat. § 25-1912 (Cum. Supp. 2004). An in forma pauperis appeal is perfected when the appellant timely files a notice of appeal and an affidavit of poverty. State v. Jones, 264 Neb. 671, 650 N.W.2d 798 (2002). The State asserts that Smith failed to file a poverty affidavit with his notice of appeal within 30 days of the August 9, 2001, order, noting that the notice and accompanying paperwork were not all filed until September 28. However, in its October 6, 2003, order sustaining Smith's second motion for postconviction relief, the district court found that a poverty affidavit was indeed included with the notice of appeal filed by the clerk on September 10, 2001. Consequently, the court ordered that the judgment entered on August 9, denying Smith's first motion for postconviction relief, be reestablished to allow Smith to take a proper appeal from the order. The State asserts that there is no evidence to support the district court's order. However, the State did not appeal the October 6, 2003, decision of the district court. Therefore, unless the court did not have subject matter jurisdiction to order the relief contained in the October 6 decision, the only issues properly before this court are those presented by the August 9, 2001, order, denying Smith's first motion for postconviction relief. A judgment entered by a court which lacks subject matter jurisdiction is void. It is the longstanding rule in Nebraska that such a void judgment may be attacked at any time in any proceeding. Kuhlmann v. City of Omaha, 251 Neb. 176, 556 N.W.2d 15 (1996). Jurisdiction of the subject matter means the authority to hear and determine both the class of actions to which the action before the court belongs and the particular question which it assumes to decide. In re Interest of Jeremy T., 257 Neb. 736, 600 N.W.2d 747 (1999). When a judgment is attacked in a manner other than by a proceeding in the original action to have it vacated, reversed, or modified, or by a proceeding in equity to prevent its enforcement, the attack is a collateral attack. In re Applications T-851 & T-852, 268 Neb. 620, 686 N.W.2d 360 (2004). Collateral attacks on previous proceedings are impermissible unless the attack is grounded upon the court's lack of jurisdiction over the parties or subject matter. In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997). In this case, we must determine whether the district court had the subject matter jurisdiction to hear Smith's second motion for postconviction relief and to reestablish the August 9, 2001, order to allow Smith to file a proper appeal. This court has held that where a duty is placed upon a public officer to perform acts necessary to perfect an appeal, his or her failure to perform cannot be charged to the litigant or operate to defeat the appeal. Purdy v. City of York, 243 Neb. 593, 500 N.W.2d 841 (1993); Harte v. Gallagher, 186 Neb. 141, 181 N.W.2d 251 (1970). However, if the negligence of the appellant or his or her agent concurs with that of the court official, it precludes the appeal. See, Larson v. Wegner, 120 Neb. 449, 233 N.W. 253 (1930); Continental Building & Loan Association v. Mills, 44 Neb. 136, 62 N.W. 478 (1895). Consequently, if Smiths first postconviction appeal was lost solely due to the clerk's error, Smith would be entitled to seek reinstatement of that appeal. In addition, we have indicated that in a civil proceeding, the appropriate procedure for the appellant to use in such cases is a motion to reinstate the appeal, filed with the same court in which the case was adjudicated. See R.V.R.R. Co. v. McPherson, 12 Neb. 480, 11 N.W. 739 (1882). A postconviction proceeding is civil in nature. State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003). In McPherson, supra, the appellant instead filed a new petition in the district court, claiming the dismissal of her appeal was error; however, on appeal, this court considered it as a motion and found no error in the district court's decision to sustain the motion and reinstate the appeal. Cf. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000) (district court may properly reinstate direct appeal as postconviction relief), abrogated on other grounds, State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002). Therefore, the appropriate procedure for securing a new appeal when an appeal is lost due to official negligence is to file a motion in the lower court and establish the factual basis for obtaining relief. In short, the district court in this case had the power to reinstate a civil appeal upon the motion of a litigant. Thus, the district court had the power to reinstate Smith's appeal upon a finding that his appeal was dismissed as untimely as a result of an error on the part of the court clerk. The court made such a finding in its order on October 6, 2003: It is clear from the record that [Smith] adamantly believes that there was an affidavit of poverty attached to the notice of appeal, which was filed on September 10, 2001. The notice of appeal includes a statement that the poverty affidavit is attached. The Clerk of the District Court of Dawson County, Nebraska, is less than adamant about the receipt of the poverty affidavit and is not clear about the telephone conversation between herself and [Smith]. It is clear that [Smith] mailed the documents for the appeal. The preponderance of the evidence indicates that included in those documents was an affidavit of poverty. Based on that finding, the court sustained Smith's second motion for postconviction relief and reestablished the judgment entered on August 9, 2001, allowing Smith to take a proper appeal therefrom. The district court had jurisdiction over the subject matter and the power to grant a reinstatement of the prior appeal; therefore, the State cannot attack that order in this appeal. The State did not perfect a timely appeal from the October 6, 2003, order, nor can that order be collaterally attacked in the present appeal. If the State believed the evidence was insufficient to support the order, or that a postconviction motion was an inappropriate vehicle for such relief, the State should have presented a timely appeal. Error, if any, committed by the trial court would have been an error in the exercise of jurisdiction, but it was not outside the subject matter jurisdiction of the court. See In re Interest of Jeremy T., 257 Neb. 736, 600 N.W.2d 747 (1999). Because the court had subject matter jurisdiction, the order granting a new appeal was not void ab initio. The State waived challenges to the court's finding that a poverty affidavit was included with the notice of appeal filed by the clerk on September 10, 2001, and to questions with respect to the court's exercise of jurisdiction, by failing to appeal the October 6, 2003, order. The only order before us is that of August 9, 2001, denying Smith's first motion for postconviction relief. As a result, it is not proper for us to here determine whether the district court's decision reestablishing the August 9 order was an appropriate exercise of jurisdiction or whether a second motion for postconviction relief was the correct method for Smith to challenge the Court of Appeal's dismissal of his initial appeal from the August 9 order.",jurisdiction
+514,1058909,2,3,"In the context of unwholesome food, the proof necessary to sustain a cause of action based upon negligence or breach of warranty is the same. [T]he burden requires the plaintiff to show `(1) that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the defendant's hands.' Harris-Teeter v. Burroughs, 241 Va. 1, 4, 399 S.E.2d 801, 802 (1991) (quoting Logan v. Montgomery Ward, 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975)). The implied warranty of wholesomeness applies to the sale of food by restaurants. Levy v. Paul, 207 Va. 100, 106, 147 S.E.2d 722, 726 (1966). With regard to proximate causation where there is no direct proof, the circumstantial evidence must be sufficient to show that the causation alleged is a probability rather than a mere possibility. Southern States Coop. v. Doggett, 223 Va. 650, 657, 292 S.E.2d 331, 335 (1982). In his order setting aside the jury verdict, the trial judge opined that the testimony of Dr. Gaylord lacked a sufficient factual basis, and the remaining circumstantial evidence consisting of lay testimony was insufficient to support the jury verdict. We disagree with both of the trial court's holdings. Certainly, expert testimony is inadmissible if it is too speculative or lacks a sufficient factual basis. Forbes v. Rapp, 269 Va. 374, 381, 611 S.E.2d 592, 596 (2005); John v. Im, 263 Va. 315, 319-20, 559 S.E.2d 694, 696 (2002); Countryside Corp. v. Taylor, 263 Va. 549, 553, 561 S.E.2d 680, 682 (2002); see Code §§ 8.01-401.1 and -401.3. According to the trial court, Dr. Gaylord's testimony lacked sufficient factual basis because of the non-contemporaneous medical examination, the lack of laboratory testing, and the discrepancy in the timeline. We will address each issue seriatim. Dr. Gaylord examined Bussey less than two days after the onset of her illness. At that time, he analyzed the factors discussed in his testimony and reviewed the emergency room report prepared the previous evening. The essential nature of Bussey's symptoms remained the same from onset of illness until Dr. Gaylord's examination. Next, the trial court cites the lack of laboratory tests showing the existence of staphylococcal bacteria. We have never required positive proof by scientific testing to establish a factual basis for medical diagnosis and opinion. Dr. Gaylord cited a multitude of factors, including laboratory testing that excluded other causes of illness, which contributed to his opinion. Moreover, he testified that food poisoning is a fairly common illness for which scientific testing would not be cost effective, and the emphasis is on the last meal before the event. We are satisfied on this point that Dr. Gaylord's opinion was based sufficiently on facts known to him and was not speculative. Cf. Forbes, 269 Va. at 382, 611 S.E.2d at 597 (excluding expert testimony given off the top of [his] head). With regard to the alleged timeline discrepancy, Golden Corral makes much of the two hour difference between Bussey's testimony concerning the onset of illness four hours after eating, and Dr. Gaylord's testimony that most cases of bacterial food poisoning with manifestations such as hers arise within 6 to 24 hours. Of course, Bussey cannot rise above her own testimony, Massie v. Firmstone, 134 Va. 450, 114 S.E. 652 (1922), but here the suggested conflict merely reflects the difference between symptoms experienced in the general population and those experienced by Bussey in particular, and created a jury issue regarding the weight to be given to the testimony. For these reasons, we hold that Dr. Gaylord's expert testimony concerning causation had a sufficient factual basis and the evidence was properly before the jury. Turning to the lay testimony, we begin with the proposition that, generally, lay testimony is admissible to prove proximate causation. Todt v. Shaw, 223 Va. 123, 127, 286 S.E.2d 211, 213 (1982) (lay testimony sufficient to raise a jury question even when expert testimony failed to establish causation); Sumner v. Smith, 220 Va. 222, 226, 257 S.E.2d 825, 827 (1979) ([direct medical] evidence is not a prerequisite to recovery). In Sumner, we held that testimony of the plaintiff, indirect medical evidence, and the reasonable inferences derived therefrom presented a jury issue as to causal connection. 220 Va. at 225-26, 257 S.E.2d at 827. See also Gwaltney v. Reed, 196 Va. 505, 509, 84 S.E.2d 501, 503 (1954) (plaintiff's testimony of pain occurring soon after an accident was sufficient to raise a jury question on causation). All that is required is that a jury be satisfied with proof which leads to a conclusion with probable certainty where absolute logical certainty is impossible. Bly v. Southern Ry. Co., 183 Va. 162, 176, 31 S.E.2d 564, 570 (1944). Our holdings in Sumner and Bly are directly applicable here. Cases involving food poisoning present unique circumstances because the primary source of evidence is usually consumed and transmuted in the ordinary course of its use. As a result, most cases will necessarily rely upon circumstantial evidence. We hold that the lay testimony coupled with the doctor's diagnosis was sufficient to support the jury verdict. Bussey ate only one meal within a 36 hour period, the meal consisted of beef that smelled bad, and thereafter she suffered a sudden illness that was diagnosed as food poisoning. The evidence is neither speculative nor scant, and the jury verdict naturally follows from fair inferences drawn from the evidence. The right to a trial by a jury in a civil case is constitutional in origin. Article 1, Section 11 of the Constitution of Virginia provides that in civil suits respecting property interests, trial by jury is preferable to any other, and ought to be held sacred. A jury's verdict should be set aside only where it is plainly wrong or there is no credible evidence in the record to support that verdict. Such circumstances did not exist in this case.",sufficiency of the evidence
+515,2831061,1,2,"1. The Supreme Court of Pennsylvania has jurisdiction pursuant to the Judiciary Article ofthe Constitution ofthe Commonwealth ofPennsylvania, Article 5, Section 2(jurisdiction of the Supreme Court); Article 5, Section 10 (supervisory authority ofthe Supreme Court); and the first clause of Section 1 ofthe Schedule to the Judiciary Article (power and jurisdiction of the Supreme Court); and further Received In Supreme Court JAN 0 7 2015 Middle pursuant to the Judicial Code, 42 Pa.C.S.A. §721(3) (original jurisdiction of the Supreme Court in quo warranto); and §726 (extraordinary jurisdiction of the Supreme Court); as implemented by Pa.R.A.P. 3307 (pleadings in original actions) and 3309(King's Bench matters). APPLICANT 2. The Applicant is Supervisory Special Agent Patrick R.Reese, an employee of the Pennsylvania Office of Attorney General(OAG). Special Agent Reese is a member ofthe Protection Detail for Attorney General Kathleen Kane. Among other duties, Special Agent Reese is a driver for Attorney General Kane. Special Agent Reese has an office in the OAG Scranton Regional Office,417 Lackawanna Avenue, Scranton, PA 18510, and resides at 939 Meade Street, Dunmore,PA 18512. 3. On January 7,2015 Special Agent Reese,through counsel,accepted service of a subpoena issued by Special Prosecutor Thomas E. Carluccio. The subpoena requires Special Agent Reese to appear and testify on January 12, 2015 before the Thirty-Fifth Statewide Investigating Grand Jury sitting in Montgomery County. 4. The Applicant, by virtue of having been served with a subpoena to appear and testify, has standing to challenge the legality ofthe office of Special Prosecutor appointed to the Thirty-Fifth Statewide Investigating Grand Jury. Gwinn v. Kane, 19 Pa.Cmw1th. 243, 339 A.2d 838, 840-843 (1975), disposition affirmed, 465 Pa. 269, 2 348 A.2 900(Pa. 1975). FACTUAL BACKROUND 5. On June 6, 2014 an article appeared in the Philadelphia Daily News concerning a 2009 grand jury investigation of.T. Whyatt Mondesire,a former head of the NAACP in Philadelphia, and Harriet Garrett, one ofMr.Mondesire's employees. Exhibit A. 6. The 2009 statewide investigating grand jury had been convened and impaneled in Montgomery County. 7. The Philadelphia Daily News article cited two documentary sources: First, a 2009 memo written by then-Deputy Attorney General William Davis,Jr., addressed to then-ChiefDeputy Attorney General Frank Fina and then-Senior Deputy Attorney General E. Marc Costanzo; and Second, a 2014 transcript of a taped interview by David Peifer, Director of the OAG Bureau of Special Investigations, of Michael Miletto, the OAG special agent who had earlier investigated Mr. Mondesire and Ms. Garrett. Exhibit A. 8. Following publication ofthe June 6,2014 Philadelphia Daily News article, a Special Prosecutor(Thomas E. Carluccio,Esq., an attorney in private practice) was appointed and authorized to utilize the Thirty-Fifth Statewide Investigating Grand Jury to investigate the alleged leak of alleged grand jury material by employees 3 of the OAG,or other persons, to the Philadelphia Daily News. 9. The written communications, applications, petitions, orders, notice of submission, and all other documents underlying the appointment of the Special Prosecutor and submission of this investigation to the grand jury are under seal. It has been publicly reported that the appointment of the Special Prosecutor in this matter was authorized by the Supreme Court and by Order of Supervising Judge of the Grand Jury William R. Carpenter. Exhibits B, C, and D. BASIS FOR EXTRAORDINARY RELIEF 10. The Investigating Grand Jury Act, 42 Pa.C.S.A. §§4541 et seq., does not provide for appointment of any special prosecutor. 11. The Commonwealth Attorneys Act, 71 P.S. §§732-101 et seq., does not provide for the appointment of any special prosecutor. 12. The sole provisions in Pennsylvania law for appointment of a special prosecutor apply only in the event that an elected county District Attorney has been charged with crime or wilful and gross negligence in office. County Code, 16 P.S. §§1405-1406. See similar provisions at 16 P.S. §7710 concerning counties of the first class; and 16 P.S. §§4405-4406 concerning counties of the second class. 13. Pa.R.A.P. 3331 provides for review by the Supreme Court ofAn order relating to the supersession ofa district attorney by an Attorney General or by a court, 4 or to the appointment, supervision, administration or operation of a special prosecutor. This rule does not create any independent substantive authority for the appointment of any special prosecutor, and must therefore be construed to apply solely to cases arising under the above-cited provisions of the County Code. 14. The consideration of a special prosecutor in Dauphin County Grand Jury Investigation Proceedings(No. 3), 322 Pa. 358,2 A.2d 809(1938), was held to have been authorized by a 1929 Legislative enactment which was repealed upon passage of the Commonwealth Attorneys Act, supra, in 1980. Former section 907 of the Administrative Code of1929,71 P.S. §297,authorized President Judges ofthe Courts ofCommon Pleas to request in writing that the Attorney General intervene in criminal matters and supersede the local District Attorney. See statutory history: Commonwealth v. Harris, 501 Pa. 178, 460 A.2d 747, 751, fn. 1 (1983). Thus, reliance upon the 1938 case by the Lackawanna County Court in In re: County Investigating Grand Jury VIII, 2003, 2005 WL 3985351 (Pa.Com.P1. 2005)for the general proposition that Pennsylvania courts have traditional or inherent authority to appoint special prosecutors, was misplaced. See section II(C)ofthat Opinion,p.9-10, titled Appointment of Special Prosecutor. 15. Another Lackawanna County grand jury later gave rise to a proceeding on the issue of whether the Pennsylvania Shield Law, 42 Pa.C.S.A. §5942, protects a 5 newspaper reporter from compelled disclosure ofthe source of a grand jury leak. In Castellani v. The Scranton Times, 956 A.2d 937 (Pa. 2008), the Supreme Court, while addressing the Shield Law,mentioned in passing that the Supervising Judge of the Grand Jury had appointed a Special Prosecutor to investigate a leak, but as the validity of the appointment was not at issue, no authority for the appointment was cited. 16. In In Re Dauphin County Fourth Investigating Grand Jury, 947 A.2d 712 (Pa. 2008), grand jury leaks had been complained of by individuals subject to investigation. The Supreme Court issued aper curiam Order under the King's Bench authority of42 Pa.C.S.A. §726,directing the Supervising Judge ofthe Grand Jury to consider whether a special prosecutor should be appointed to pursue the allegations... No authority in support ofthe contemplated appointment ofa special prosecutor was cited. Id., 712. Subsequently, a special prosecutor was appointed, although, again, the later full Opinion by the Supreme Court does not cite any authority relied upon for the appointment. In Re Dauphin County Fourth Investigating Grand Jury, 19 A.3d 491 (Pa. 2011). 17 In disapproving the appointment of a special prosecutor by the Philadelphia Court of Common Pleas,to supersede the local District Attorney in the conduct ofa grand jury investigation, outside the terms of71 P.S. §297,the Supreme 6 Court of Pennsylvania expressly held that Pennsylvania courts had no such extastatutory authority, and there is no public office in Pennsylvania known as Special Prosecutor. Smith v. Gallagher, et al, 408 Pa. 551, 185 A.2d 135,149(1962). The Supreme Court in Smith pointedly disapproved the proposition that Pennsylvania courts have inherent independent power to appoint special prosecutors, as follows: [T]he intervening appellants say that Judge Alessandroni did have the jurisdiction and the authority to order a special grand jury and appoint a special prosecutor. The oral and written arguments submitted in behalf of this thesis, however, lack conviction or even persuasion. They speak vaguely ofinherent authority, common law jurisdiction and traditional powers. Id., 146; and at length further at 151-154. 18. Although Smith v. Gallagher was decided by the Supreme Court in 1962, nothing in either the Investigating Grand Jury Act or the Commonwealth Attorneys Act, both adopted in 1980, has corrected the lack of authority to appoint special prosecutors vigorously pointed out by Justice Musmanno in 1962. Mere lapse oftime has not provided new constitutional or statutory authority. Indeed,since repeal of71 P.S. §297 by the Commonwealth Attorneys Act in 1980, 71 P.S. §732-502, no case has been found at any level of the Pennsylvania judiciary which has cited any constitutional or statutory authority for the appointment of a special prosecutor. 19. There was no necessity for the appointment of a special prosecutor in this 7 matter, since, according to publicly known facts, several county District Attorneys had jurisdiction to both investigate any leak by the OAG and prosecute any crime found to have been committed. Such county District Attorneys appear to include, at a minimum,those serving Montgomery County(site ofthe 2009 grandjury),Dauphin County (site of the principal office of Attorney General Kane and numerous other OAG officers and employees), and Philadelphia County (site of the Philadelphia Daily News). Reinforcing the availability of at least those three counties, the Investigating Grand Jury Act by its own terms expresses a preference for county grand juries over multi-county grand juries, unless the investigation cannot be adequately performed by an investigating grand jury under section 4543 (relating to convening county investigating grand jury). 42 Pa.C.S.A. §4544. 20. The argument that the appointment of a special prosecutor was necessary since the Office of Attorney General would have had a conflict of interest in investigating itself does not answer either: (1) the complete absence of statutory authority for such an appointment; or(2)the availability ofseveral alternative county District Attorneys to whom the investigation could have been referred. 21. The appointment of Special Prosecutor Thomas E. Carluccio, and the proceedings of the Thirty-Fifth Statewide Investigating Grand Jury related to any matter submitted or actions taken by the Special Prosecutor, were and continue to be 8 without legal authority, and null and void ab initio. WHEREFORE,it is requested that the Supreme Court vacate the original Order appointing a Special Prosecutor in this matter under the applicable Notice of Submission or otherwise. It is further requested that the Supreme Court prohibit enforcement of all subpoenas issued by the Special Prosecutor under the authority of the Supervising Judge ofthe Grand Jury; and further prohibit issuance of any report or presentment by the Thirty-Fifth Statewide Investigating Grand Jury based on any matter submitted to the grand jury by the Special Prosecutor. Respectfully submitted, William A. Fetterhoff, s Fetterhoff and Zilli 218 Pine Street Harrisburg,PA 17101 Telephone: 717 232-7722 FAX: 717 233-4965 E-mail: wfetterhoff@live.com PA Supreme Court ID 23148 Attorneyfor Patrick R. Reese 9 State A.G. probed Philly NAACP leader Mondesire's finances 5 year... http://articles.philly.com/2014-06-06/news/50390468_1_memo-whya... phillyocom Subscriber Services Zheilnquirrr ayes Home I News I Sports I Entertainment I Business I Food I Lifestyle I Health I Marketplace Collections State A.G. probed Philly NAACP leader Mondesire's finances 5 years ago Shocking. BY CHRIS BRENNAN, Daily News Staff Writer brennacaphillynews.com, 215-854-5973 French 4 Heart Attack Signs POSTED: June 06, 2014 Video ownahealthyheart.com STATE ATTORNEY General Kathleen Kane is reviewing a 2009 If you do not know These 4 Things grand-jury investigation of J. Whyatt Mondesire, former head of the French, you've got Happen Right Before a NAACP in Philadelphia, and one of his employees, according to ' to see'this brilliant Heart Attack. documents obtained by the Daily News. video before it's gonE What's My Mondesire's employee, Harriet Garrett, and her daughter pleaded You'll be absolutely House Worth? guilty in 2010 to stealing nearly $220,000 in state grant money for a blown away from itl trulia.com job-training program. Garrett was sentenced to a minimum of six See your Home's months in jail and ordered to pay restitution. Her daughter got 18 Play Video 4)0 Market Value Free & It months probation Just Takes Seconds A 2009 memo written by then-Deputy Attorney General William Davis SHOCKING DISCOVER r Arrest Warrant Jr. says investigators uncovered what appeared to be questionable Records spending of state money by Mondesire. persopo.com 1) Type Name - Searcl Kane, a Democrat, is now trying to determine what happened with the Free! 2) See Anyone's Mondesire investigation. Gov. Corbett, a Republican, was the attorney Warrant Records general at the time. Instantly Mondesire, 64, says he was never questioned and denies any financial 2016 wrongdoing. Presidential Poll townhall.com/StrawPoll The 2009 Davis memo detailed for his bosses what had been Which GOP presidentia uncovered about Mondesire and Garrett, who worked at the You'll Never Believe What They , hopeful would be the Philadelphia Sunday Sun, a weekly newspaper Mondesire publishes. best candidate? Vote! Found Hiding in Your Stomach IVidtuj A nonprofit called Next Generation Community Development Corp., 3 Credit Scores which is operated by Mondesire, held a state-government grant for a jobs-training program in 2004 and 2005, but handed it off to Garrett, We Recommend (Free) who ran another nonprofit called Creative Urban Education Systems, freescore360.com View your latest Credit or CUES, according to the Davis memo. The Rev. Carl Fitchett to lead Philly Scores from All 3 NAACP Mondesire was listed as chairman of the CUES board, the memo bureaus in 60 seconds April 18, 2014 fnr noted, while Garrett served as the treasurer for Next Generation's board. Questions over Philly NAACP finances Davis wrote his memo to then-Chief Deputy Attorney General Frank January 24, 2014 Fina and then-Senior Deputy Attorney General E. Marc Costanzo. Board members from NAACP leader's Corbett, as attorney general, named Fina in 2006 to head a new nonprofit sue to see the books public-corruption unit and Costanzo to work on cases for the unit in the June 6, 2014 Philadelphia region. Fina and Costanzo now work in a similar unit for District Attorney Seth Mondesire's friends-turned-foes get \Ari!hams. access to his books June 12, 2014 In the memo, Davis wrote: Next Generation's bank-account records, obtained with a grand-jury subpoena, showed deposits of $1.3 million in government grants in a one-year period. Another $521,000 in the account came from political campaigns, rent payments and the intermingling of money from the Sunday Sun, which is owned and operated by Mondesire, the memo said. Next Generation paid $2,273 to the Philadelphia Club, a private and exclusive club in Center City. Next Generation spent tens of thousands, writing checks to pay Mondesire's American Express bill for clothes, food, lodging gas and entertainment and a loan from Mellon Bank. There were also checks written to Mondesire and to cash. FREE Pocket Knife Annual. Membership for only S25  Next Generation wrote checks for $169,960 to Charles and Claudia Tasco and their company, C&C Construction.(Charles Tasco is the son 1 of4 .._.411;1z.‘i- 1/3/2015 9:13 AM State A.G. probed Philly NAACP leader Mondesire's finances 5 year... http://articles.philly.com/2014-06-06/news/50390468_1_memo-whya... of City Councilwoman Marian Tasco, a friend and political ally of Mondesires for more than three decades.)  $6,431 in CUES money was given to Mondesire for what Garrett called consulting. That type of expense was not allowed, according to the rules of the grant. In various correspondence between Garrett and Mondesire discovered by investigators, she questioned payments of more than $70,000 he made to Claudia Tasco. CUES paid $1,099 for health insurance for Mondesire. Davis wanted to question Mondesire - and possibly subpoena him for sworn grand-jury testimony - about Garrett, CUES and Next Generation. Never questioned Mondesire, a former Inquirer reporter who served as the top aide to the late U.S. Rep. Bill Gray, said no one from the A.G.'s Office ever questioned him. We didn't use any money for personal gain, Mondesire said. He said that he has not seen the A.G. Offices documents and twice declined an offer from the Daily News to review them. Mondesire said C&C Construction worked on four properties, including the NAACP headquarters and his newspaper office, where the Next Generation non-profit is also located. We bought supplies with my American Express card for construction, he said. They never asked me a single question back in 2009. We rehabbed the buildings. We spent money buying stuff for the buildings, construction and paying off developers. Garrett declined to comment about the investigations. Her daughter did not respond to requests for comment. The May 2010 news release about Garrett's arrest featured Corbett laying out the charges. Corbett did not respond this week to two questions: Was he briefed on the Mondesire investigation and did he play a role in deciding what happened with that probe? Mondesire was suspended by the NAACP's national headquarters in April after he feuded publicly with board members about the finances of the local chapter and Next Generation. Those board members - Sid Booker, Donald Ducky Birts and the Rev. Elisha Morris - also were suspended. Booker and Morris, who say they are still Next Generation board members, are now asking a Common Pleas judge to force Mondesire to show them the nonprofit's financial records. As a judge considers that request, Kanes staff is reviewing what became of the 2009 Mondesire probe. David Peifer, who heads the A.G.'s Bureau of Special Investigations, on March 21 interviewed Michael Miletto, the special agent who investigated Garrett and Mondesire. The Daily News obtained a transcript of that taped interview. Miletto told Peifer that he subpoenaed Next Generation's bank account, the transcript shows. When I did that, I found that there was a whole bunch of money that appeared to me to be donations to the NAACP, not [Mondesire], and they were going into Next Generation's account and they were being used for [Mondesires] lifestyle - much of it, Miletto told Peifer. Miletto said he was taken off the case after Fina and Costanzo were told about the probe, according to the transcript. Miletto said criminal activity was just ignored after that. He added that two accountants who had worked for Mondesire had provided taped statements, with one asking for immunity and the other asking for protection. Fina and Costanzo declined to comment about the Mondesire investigation, citing the secrecy of grand-jury proceedings. Davis, now in private practice, also declined to comment, citing the same restriction. Miletto, who still works for the A.G.'s office, also declined to comment. Peifer referred questions to Kane's communications staff. J.J. Abbott, a spokesman for Kane, declined to comment. The Kane-Fina feud Fina and Costanzo have a complicated and controversial relationship with Kane. Kane criticized Corbett's tenure as attorney general when she ran for office in 2012, specifically targeting the Penn State child-abuse scandal that sent former assistant football coach Jerry Sandusky to prison. Kanes staff is now conducting an extensive review of that investigation. Fina led the Sandusky probe. Kane, on Feb. 5, issued a statement noting that her offices Sandusky review had been underway for one year, adding that delays in the undertaking will be described in more detail when the report is made public. A month later, the Inquirer reported that Kane declined to pursue an investigation previously led by Fina and Costanzo, starting in 2010, that used Philadelphia lobbyist Tyron Ali as a confidential informant to tape conversations with four PhiIly state representatives and a former Traffic Court judge, On the tapes, the representatives and judge accept cash or gifts from Ali. Kane has said Fina dropped 2,033 criminal counts against Ali, who had been charged with stealing $430,000 from a state program, 24 days before she was sworn into office. She said that extraordinarily lenienr deal crippled the chance of this case succeeding in prosecution. Fina, in a letter published by the Inquirer a week after the first story ran, called on Kane to explain her decision. 2 of 4 1/3/2015 9:13 AM State A.G. probed Philly NAACP leader Mondesire's finances 5 year... http://articles.philly.com/2014-06-06/news/50390468_1_memo-whya... The Inquirer also published a letter that day from Fina's boss, Williams, critical of Kane. Kane eventually turned over the Ali case file to Williams, who is now examining whether charges can be brought against the four representatives and the Traffic Court judge, who is currently on trial in an unrelated federal corruption case. On Twitter: TgChrisBrennanDN Blog: ph.lyiPhillyClout.com You May Like Sponsored Links by Taboola Social Security: How To Get $1,000 More a Month Newsmax Powerful Plastic: The 7 Best Credit Cards for People With Excellent Credit Next Advisor Daily Kate Middleton's Bizarre Behavior at Event Gets Everyone Talking Stirring Daily An Extremely Brilliant Way To Pay Off Mortgage Bills.com Guess Who's About To Go Bankrupt in America [Shocking] Stansberry Research CNN Money: How Young Millionaires invest CNN Money ( Wealthfront More From The Web More From Philly.com • Social Security: How To Get $1,000 More a Month • Sheinelle Jones has good news 'Today' (Newsmax) • Phila. police: Man beaten, kidnapped, tattooed • Powerful Plastic: The 7 Best Credit Cards for • Philadelphia entrepreneur finds an opportunity in People With Excellent Credit (Next Advisor Daily) home care for elderly Asians • Kate Middleton's Bizarre Behavior at Event Gets • Challenge to Phila. civil forfeiture law continues Everyone Talking (Stirnng Daily) • Phila.'s new gem: A stroll on the Schuylkill • An Extremely Brilliant Way To Pay Off Mortgage (Bills com) • Guess Who's About To Go Bankrupt in America [Shocking](Stansberry Research) Promoted Links by Taboola comments powered by Disqus Commenting policy l Comments FAQ Aviation Maintenance fixjets.com Acquire Proper Knowledge & Skill Levels To Get An A&P Mechanic Job! FEATURED ARTICLES Nancy Schultz reflects on her A historic collection found in John duPont dies in prison: 3 of 4 1/3/2015 9:13 AM Montco lawyer leading inquiry into whether Kane's office leaked grand jury information -... Page 1 of 3 phillyecom Subscriber Services l Cfic.ilayttirrr Home 1 News Sports l Entertainment l Business l Food Lifestyle l Health l Marketplace Collections • Special Prosecutor Montco lawyer leading inquiry into whether Kane's office leaked grand jury information Shocking-m, -French Video yob Son't knibw F tenctl, yeti-re Witt 10 y see this brilliant vow before ils genet Yet:1 be absolutely blown away after, ìee SHOCKING DISCOVER'i' You'll Never Believe What They Thomas E. Cartuccio is a defense lawyer and Republican. Found hlidina in Your Stomach [Video} By Angela Couloumbis and Craig R. McCoy,inquirer Staff We Recommend Writers POSTED: September 04, 2014 Kane denies bid to release controversial e-mails A veteran lawyer from Montgomery County is the special prosecutor September 25, 2014 heading the inquiry into whether state Attomey General Kathleen G. Kane's office leaked grand jury information in an effort to discredit her Kane to decide whether to release state critics, The Inquirer has leamed. workers racy e-mails September 21, 2014 Thomas E. Carluccio, a criminal defense lawyer in Plymouth Meeting GALLERY: and former prosecutor in Delaware, was appointed over the summer by Thomas E. Castille jabs Kane on gravity of inquiry Carluccio is a a Montgomery County judge to explore how secret records became December 15, 2014 defense public this year about a 2009 investigation by the Attorney General's lawyer... Office involving Philadelphia political activist J. Whyatt Mondesire, Special prosecutor probes Pa. Attorney according to several people familiar with the matter. General's Office September 1, 2014 No charges were brought against Mondesire in the case. The investigation, details of which appeared in a June story in the Philadelphia Daily News, took place before Kane became attorney general. Find More Stories About Carluccio did not respond to messages left by phone and e-mail Special Prosecutor Tuesday. Renee Martin, Kane's acting director of communications, said the office would have no comment. Kane The Inquirer first reported news of the special prosecutor's appointment on Sunday. Sources said investigators in the inquiry have issued subpoenas to Kane's office and others. Carluccio was appointed by Judge William Carpenter, the supervising grand jury judge in the eastern part of the state, the sources said. Both men are Republicans. Kane is a Democrat. Though there have been past leak inquiries, this appears to be first time the state attorney general or top staffers in the office have come under scrutiny. Such an inquiry typically requires the approval of the 6C6e file:///ClUsers/FETTER-1/AppData/Local/Temp/RNEMUH95.htm 1/3/2015 Montco lawyer leading inquiry into whether Kane's office leaked grand jury information -... Page 2 of 3 chief justice of the Pennsylvania Supreme Court, according to a 4 Hei spokesman for the Administrative Office of Pennsylvania Courts. Is Ken Fisher nutS? Attac A person who violates grand jury secrecy rules may be found guilty of ,S.ome Wall Streeters might think he is, SignE contempt of court and sentenced to up to six months in prison. Carluccio, 57, worked as a state deputy attorney general in Delaware 'because Ken,. famous Forbes columnist and head of Fisher investments. is giving eway ownahe... his new Report to investors with $500,000 before switching sides to work as a defense attorney in Pennsylvania. I or rnore portfolios. Is that you? You should I hese 4 His wife, Carolyn Tornetta Carluccio, is a judge. A Republican, she I have this.timely Report, with a stock Things joined Carpenter on the Montgomery County Common Pleas bench in fOrecast you won't find anywhere else. You'll 2010. Happen ,1 .;Aee quickly: Ken FiSher not only.in't nuts. Betore a The leak to the Daily News involved a 2009 investigation by former I He's the ene with the brains. Heart At Chief Deputy Attorney General Frank G. Fina and onetime Senior GQT.THAT? GET THIS: CLICK HERE, Deputy Attorney General E. Marc Costanzo. Fina, who handled the offices highest-profile criminal cases, left his position shortly after Kane took office. Heated battle Fina and Kane have been locked in a heated battle over the last two years on how certain cases were handled. Kane, for instance, brought in a former federal prosecutor after she was elected to review Fines prosecution of former Penn State football coach Jerry Sandusky on child sex-abuse charges. During her campaign for office, Kane said the Sandusky probe might have been delayed for political reasons. The independent review found no evidence of that. And for the last six months, Kane has faced criticism for shutting down a sting operation launched by Fina that sources and investigative documents say captured five Philadelphia Democrats, including four state legislators, on tape accepting money or gifts. As criticism over the sting case mounted, the Philadelphia Daily News reported in early June that Kane was conducting a review of Fina's handling of a 2009 investigation into Mondesires finances. The newspapers story discussed, among other things, a secret investigative memo summarizing the status of the Mondesire probe. Mondesire, the former president of the Philadelphia NAACP, has denied any wrongdoing. Explicit e-mails The leak investigation has been complicated by a separate but intense legal fight over the exchange of sexually explicit e-mails among former and current state officials. The e-mails have become an issue because some Kane critics argue that Kanes office is using the threat of their release as a way to silence criticism of her, sources have told The Inquirer. The messages were discovered during Kane's review of the Sandusky investigation, which involved going through thousands of documents. The Inquirer has reported that the e-mails were shared on state computers and sometimes through government e-mail accounts. They are said to have contained pornographic images, jokes, cartoons, and other private messages. Though not all of the recipients are known, some of the material circulated among scores of officials, from homicide investigators in the Attorney General's Office to state prosecutors and other state officials, including top Pennsylvania jurists, The Inquirer has reported. While Judge Carpenter in Montgomery County is overseeing the leak probe, a different judge, Norman A. Krumenacher 3d, of Cambria County, has jurisdiction over the e-mail issue. Several news organizations, including The Inquirer, have put in right-to-know requests for the e-mails. But Krumenacher has ordered a stay on the release of the e-mails. He oversees the grand jury in Western Pennsylvania as well as the legal issues involving Kanes review of the Sandusky prosecution. The e-mails in questions were unearthed by computer experts as part of that review. acouloumbis@phillynews.com 717-787-5934 ©AngelasInk You May Like Sponsored Links by Taboola Social Security: How To Get $1,000 More a Month Newsmax Do You Need a Logo for Your Business? Fiverr.com Please Don't Retire At 62. Here's Why. The Motley Fool Guess Who's About To Go Bankrupt in America [Shocking] Stansberry Research file:///ClUsers/FETTER--1/AppData/Local/Temp/RNEMUH95.htm 1/3/2015 Montco lawyer leading inquiry into whether Kane's office leaked grand jury information -... Page 3 of 3 Powerful Plastic: The 7 Best Credit Cards for People With Excellent Credit Next Advisor Daily CNN Money: How Young Millionaires Invest CNN Money Wealthfront More From The Web More From PhIlly.com • Social Security: How To Get $1,000 More a Month • Kane won't defend controversial gun law (Newsmax) • Kane's account of sting draws increasing fire • Please Don't Retire At 62. Here's Why. (The Motley Fool) • Kane shut down sting that snared Phila. officials • Guess Who's About To Go Bankrupt in America • D.A. to charge 2 more Phila. Democrats in sting [Shocking](Stansberry Research) • 'Months, not years:' Williams reopens sting probe • Powerful Plastic: The 7 Best Credit Cards for People With Excellent Credit (Next Advisor Daily) • CNN Money: How Young Millionaires Invest (CNN Money Wealthfront) Promoted Links by Taboola comments powered by pisqus Commenting policy l Comments FAQ What's My House Worth? trulia.com See your Home's Market Value Free & It Just Takes Seconds FEATURED ARTICLES Nancy Schultz reflects on her A historic collection found in John duPont dies in prison: husband's murder and S. Phila. home Addled heir killed Olympic forthcoming films athlete in '96 More: In Bulk Trucking, Chemical Leaman Is Rolling De Mazia Art Brings $2.38 Million Toward The Top Leader Of Jbm Sentenced To Life Aaron Jones Frank Nofer, 71,famed graphic artist Was Convicted Of Conspiring To Distribute $too Million In Cocaine. He Plans To Appeal. George Mattson,88, Olympian, Crew Coach I Jbm 8 Believed Founders Index by Keyword l Index by Date l About Philly.com I Contact Us l Terms of Use & Privacy Statement l Copyright 2015 file:///C JUsers/FETTER-1/AppData/Local/Temp/RNEMUH95.htm 1/3/2015 Pennsylvania AG Kane grand jury may miss New Year's Eve deadline l TribLIVE Pìge 1 of 2 Return to Sto Print This PagA'118 Larger text Smaller text Pennsylvania AG Kane grand jury may miss New Year's Eve deadline AP Attorney General Kathleen Kane speaks during a news conference Friday, June 27, 2014, at the Capitol in Harrisburg, Pa. 1By Brad Bumsted Monday, Dec. 29, 2014, 11:21 p.m. HARRISBURG — There's nothing magical about the New Years Eve deadline for a grand jury to finish its LIVE work examining whether Attorney General Kathleen Kane violated grand jury secrecy by leaking documents to a Philadelphia newspaper, and the outcome could take weeks or months to be revealed, legal experts said. Several people close to parties involved in the investigation suggest the grand jury could continue to meet through mid-January. We don't discuss the grand jury activities. It is not public, Kane's spokeswoman, Renee Martin, said. Kane's lawyers have said she did nothing wrong and committed no crime. Even if resolution of the matter is imminent, experts said, the result may not be. There's no way to anticipate the timeline, said longtime criminal defense attorney William C. Costopoulous of Lemoyne in Cumberland County. 11:6 c file:///C/Users/FETTER-1/AppData/Localifemp/3GZ4UM3Z.htm 1/6/2015 Pennsylvania AG Kane grand jury may miss New Year's Eve deadline TribLIVE Page 2 of 2 Judges sometimes seal grand jury presentments. And the grand jury's recommendations could be referred to a district attorney, who may decide that further investigation is necessary. The results could range from clearing Kane, or making no report; directing Kane to explain at a hearing why she should not be held in contempt of court; or recommending criminal charges such as perjury or",jurisdiction
+516,2520257,1,2,"A trial judge's findings of fact in a court-tried case will be liberally construed on appeal in favor of the judgment entered, in view of the trial judge's role as trier of fact. Conley v. Whittlesey, 133 Idaho 265, 269, 985 P.2d 1127, 1131 (1999); Lindgren v. Martin, 130 Idaho 854, 857, 949 P.2d 1061, 1064 (1997). An appellate court may set aside a trial court's findings of fact only if they are clearly erroneous. I.R.C.P. 52(a); McCray v. Rosenkrance, 135 Idaho 509, 513, 20 P.3d 693, 697 (2001). Review of the trial judge's decision is limited to ascertaining whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law. Conley, 133 Idaho at 269, 985 P.2d at 1131. If the findings of fact are based on substantial evidence, even if the evidence is conflicting, they will not be overturned on appeal. Id. Evidence is substantial if a reasonable trier of fact would accept and rely upon it in determining whether a disputed point of fact has been proven. Weaver v. Millard, 120 Idaho 692, 698, 819 P.2d 110, 116 (Ct.App.1991). The appellate courts also give due regard to the trial judge's special opportunity to judge the credibility of the witnesses. I.R.C.P. 52(a); Marshall v. Blair, 130 Idaho 675, 679, 946 P.2d 975, 979 (1997). This Court exercises free review over questions of law. Conley, 133 Idaho at 269, 985 P.2d at 1131.",standard of review
+517,1830396,1,1,"[¶ 2.] In the spring of 1998, B.Y. Development, Inc. proposed a plan for a hotel-gaming project on the 300 block of Main Street in Deadwood. Located near the edge of town, the project area lies within the Deadwood National Historic Landmark District, but outside the Downtown Historic District. The area was zoned commercial in 1990. Among the properties currently in the general vicinity are an apartment building, a gas station-convenience store, several hotels, a restaurant, an insurance agency, and a rodeo grandstand and arena. The project required demolition of a 1950s era motel and certain residences, and the relocation of other buildings. [¶ 3.] B.Y. applied to the Deadwood Historic Preservation Commission for permits to demolish the buildings in April and May of 1998. No plans for the project following the demolition were submitted at that time, so the application was tabled until the plans were presented. Four preliminary concept designs were submitted to the Commission on May 18, 1998. The City of Deadwood reviewed these designs and suggested changes. In the next several weeks, B.Y. submitted further preliminary concept designs that reflected the comments made by the City and the Commission. On June 5, 1998, the City submitted the preliminary concept design to the State Department of Education and Cultural Affairs, Office of History, for review and comment pursuant to SDCL 1-19A-11.1. B.Y. submitted color drawings of the project and preliminary floor plans, a site plan, and elevations to the City to review on June 7. The City suggested changes, which B.Y. incorporated into the plans, and on June 18, B.Y. submitted updated plans. On June 24, the Commission reviewed these revised project plans. B.Y supplied a computerized drawing of the completed project, after which the Commission approved the project design and sent its approval to the Office of History with an abbreviated case report. [¶ 4.] After reviewing the project plans, the Office of History issued a Determination of Adverse Effect. The Commission reviewed this, but reaffirmed its approval. Several days later the Office of History met with the City and B.Y. to discuss design alternatives. No consensus for an acceptable design was reached at this meeting. B.Y., however, incorporated some suggestions made by the Office of History and revised the project, reducing the building height from 58 feet to 45 feet, increasing the length of the building from 250 feet to 296 feet, decreasing the number of rooms from 90 to 80, adding landscaping to improve the appearance of the facade, and simplifying the design. Before the Commission met to review and vote on the revised plan on August 12, 1998, Christopher Hetzel, the Deadwood Historic Preservation Officer, spoke with the Office of History about the revised plan. The Office informed him that this plan too would not be approved and Hetzel duly reported that decision to the Commission. Nonetheless, formal notice of the revised plan was not sent to Office of History as it now insists is required under SDCL 1-19A-11.1. The Commission approved the revised plan and entered its written determination and case report detailing the factors and alternatives it considered in making its decision. [¶ 5.] The Office of History appealed the matter to the circuit court. At the hearing, B.Y. sought to admit affidavits that had not been presented to the Commission. Over the Office of History's objection, the court admitted a portion of the affidavits. Thereafter, the court affirmed the decision of the Commission. The Office of History now appeals to this Court contending that (1) the circuit court erred by improperly admitting evidence outside the administrative record; (2) the Commission erred by issuing its final decision before the Office of History was provided with and afforded an opportunity to review final project plans; (3) the Commission erred by failing to address each feasible and prudent alternative to the proposal; and (4) the Commission erred by failing to include concise and explicit fact statements to support its findings.",facts
+518,1283905,1,2,"We review the postremand actions of the district court in carrying out a mandate of an appellate court for legal error. Winnebago Indus. v. Smith, 548 N.W.2d 582, 584 (Iowa 1996). We review ineffective-assistance-of-counsel claims de novo. State v. Horness, 600 N.W.2d 294, 297 (Iowa 1999).",standard of review
+519,2633901,1,3,"The State of Kansas has an inherent power of eminent domain which the legislature may delegate to any public authority to exercise as directed. Young Partners v. U.S.D. No. 214, 284 Kan. 397, 404-05, 160 P.3d 830 (2007). The legislature has delegated the power of eminent domain to Rural Telephone as a telephone corporation by virtue of K.S.A. 17-618. K.S.A.2007 Supp. 26-504 provides the procedure for an eminent domain action: If the judge to whom the proceeding has been assigned finds from the petition: (1) The plaintiff has the power of eminent domain; and (2) the taking is necessary to the lawful corporate purposes of the plaintiff, the judge shall . . . enter an order appointing three disinterested residents of the county . . . to view and appraise the value of the lots and parcels of land found to be necessary, and to determine the damages and compensation to the interested parties resulting from the taking. The granting of an order determining that the plaintiff has the power of eminent domain and that the taking is necessary to the lawful corporate purposes of the plaintiff is not a final, appealable order. K.S.A. 2007 Supp. 26-504. The condemnee has no right to litigate outside issues in eminent domain proceedings. Miller v. Bartle, 283 Kan. 108, 116-17, 150 P.3d 1282 (2007). The right to exercise the power of eminent domain and to determine other issues such as the necessity and the extent of the taking may only be litigated in a separate civil action, usually in an action for injunction. 283 Kan. at 117, 150 P.3d 1282. Schuck properly filed an independent injunction action challenging the necessity of Rural Telephone's taking. He initially argues on appeal that the taking approved by the district court is unnecessary. He maintains that the proposed taking is merely a convenience as opposed to a necessity, because Rural Telephone admits the negotiated easement would have met its needs. He further contends the trial court erred in finding that he failed to meet his burden of proof that Rural Telephone acted fraudulently, in bad faith, or abused its discretion. Schuck asserts that the district court's negative finding is a product of arbitrary disregard of undisputed evidence. In Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 229, 523 P.2d 755 (1974), this court held that a Kansas public utility possessing the power of eminent domain is vested with reasonable discretion to determine the necessity for the taking of land for its lawful corporate purposes. The public utility's discretion will not be disturbed on judicial review unless fraud, bad faith, or an abuse of discretion is shown. 215 Kan. at 229, 523 P.2d 755; see also Steele v. Missouri Pacific R.R. Co., 232 Kan. 855, 861, 659 P.2d 217 (1983) (party seeking injunction has burden of proving fraud, bad faith, or abuse of discretion when challenging railroad's determination that taking of land was necessary). Schuck contends Rural Telephone's action of burying the cable outside the easement amounted to constructive fraud. He argues that, as a farmer, he could not reasonably monitor Rural Telephone's placement of the cable and he had a right to trust Rural Telephone and to rely upon its honesty and integrity to place the cable within the easement it negotiated with him. He further asserts that the fact that Rural Telephone did not lay the cable within the easement and then filed a petition for eminent domain is prima facie evidence of bad faith. Schuck then asserts Rural Telephone had no discretion that it could legitimately exercise—the cable was to be buried within the easement— and the fact that Rural Telephone buried the cable outside the easement must constitute an abuse of discretion, whether the cable's location resulted from a mistake or a decision to ignore the negotiated easement. Constructive fraud is `a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty [n]or purpose or intent to deceive is necessary.' Garrett v. Read, 278 Kan. 662, 674, 102 P.3d 436 (2004). Two additional elements must also be proven in order to establish constructive fraud: (1) a confidential relationship, and (2) a betrayal of this confidence or a breach of a duty imposed by the relationship. 278 Kan. at 674, 102 P.3d 436. The party must also conceal facts that the party has a legal or equitable duty to communicate, with respect to which the party could not be innocently silent. Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906, 107 S.Ct. 2484, 96 L.Ed.2d 376 (1987). Schuck has offered no evidence that Rural Telephone concealed facts. He acknowledged that the location of the cable was visible to the unaided eye. Ron Ellis testified that Rural Telephone's engineering department and construction crew buried the cable without knowledge of Schuck's easement. Ellis further testified that Rural Telephone was not aware of its mistake until Schuck contacted the company in early 2006. Shuck has likewise failed to show that Rural Telephone acted in bad faith or that its actions amounted to an abuse of discretion. Filing a petition for eminent domain does not demonstrate bad faith; rather, it demonstrates an attempt to resolve the problem through the courts after settlement negotiations failed. Having made what appears to have been a good-faith mistake, Rural Telephone then had to make a choice as to how it would cure that mistake. Rural Telephone's evidence that the taking was necessary to fulfill its public purpose of providing quality telecommunication service to its customers sufficed to show that it did not abuse its discretion. The legislature has vested Rural Telephone with the discretion to determine the necessity for the taking of land for its public purposes. Upon receiving notification 3 years after the fact that it did not bury the cable within the negotiated easement, Rural Telephone determined it was necessary for its lawful corporate purpose of providing telecommunication service to the public to take an easement on Schuck's property in order to keep its cable in place. Although it may not originally have been necessary for the cable to be placed at its present location, Rural Telephone provided sufficient evidence to support its claim that it is now necessary for the cable to stay in its present location. Schuck has failed to prove that this exercise of discretion amounted to fraud, bad faith, or an abuse of discretion on Rural Telephone's part. Schuck has also failed to establish the prerequisites for injunctive relief. See Steffes v. City of Lawrence, 284 Kan. at 394-95, 160 P.3d 843. He did not establish a reasonable probability of irreparable injury or a substantial likelihood that he would prevail on the merits. He testified at trial that he no longer knows where he can dig on his land and he has to engage a specialized cable locator before he can dig. He also testified, however, that the location of the cable was visible to the unaided eye. It further appears that Schuck has the staking sheets and can easily ascertain the cable's location. His argument that he will suffer irreparable harm without the injunction because he and all other landowners will lose their bargaining power with utility companies and be deprived of due process overlooks the fact-specific analysis in eminent domain cases. Schuck fails to demonstrate the other factors necessary for injunctive relief. His testimony that $40,000 in damages, although not related to any specific economic loss, would have adequately compensated him constituted an admission an adequate remedy was available at law. He has not established that his injury putatively arising from not knowing where he can dig on his land outweighs the damages Rural Telephone will suffer by moving its cable. He likewise has not contradicted Rural Telephone's evidence that moving the cable will be detrimental to the public. In light of Ellis' testimony regarding the degradation to the equipment and service and the disruption of service to 11 communities that would result from moving the cable, we find the district court did not abuse its discretion in finding Rural Telephone's taking of the easement was necessary to Rural Telephone's lawful public purpose. Schuck has not shown that the district court arbitrarily disregarded undisputed evidence or that its decision was based on bias, passion, or prejudice. Our holding here is limited to the facts of this case; we do not condone Rural Telephone's failure to conform with the easement which it freely negotiated. Under the facts presented here, however, the district court's determination that Rural Telephone has the power of eminent domain and that the taking was necessary to its lawful corporate purposes is sound. Schuck also argues Rural Telephone has essentially filed an impermissible inverse condemnation action and that Rural Telephone failed to comply with K.S.A.2007 Supp. 26-501 through K.S.A. 26-516. An inverse condemnation proceeding is initiated by the party having a property interest and is available when private property has been taken for public use without the initiation of formal condemnation proceedings by the governmental taker. See Kau Kau Take Home No. 1 v. City of Wichita, 281 Kan. 1185, 1189, 135 P.3d 1221 (2006), cert. denied ___ U.S. ___, 127 S.Ct. 1495, 167 L.Ed.2d 229, (2007). Rural Telephone could not initiate an inverse condemnation action, because it was not the interest-holder in the property. Rural Telephone laid its cable on Schuck's land outside the negotiated easement. The undisputed evidence presented at trial showed that the location of the cable was not intended as a taking but was a good-faith mistake. See Sester v. Belvue Drainage District, 162 Kan. 1, 6, 173 P.2d 619 (1946) (intentional taking of land in exercise of government power is an element of eminent domain). After Schuck pointed the mistake out to Rural Telephone, it initiated a proceeding to take an easement where it had laid the cable. The taking then became intentional, and Rural Telephone followed proper statutory procedures for exercising eminent domain. As required by K.S.A.2007 Supp. 26-501(b), Rural Telephone brought the eminent domain action by filing a verified petition in the district court of the county in which Schuck's land is located. The petition contains the elements required by K.S.A. 26-502. Schuck has not shown that Rural Telephone did not comply with the notice requirements contained in K.S.A. 26-503. As required by K.S.A.2007 Supp. 26-504, the district court found that (1) Rural Telephone had the power of eminent domain, and (2) the taking was necessary to the lawful corporate purposes of Rural Telephone. The court therefore appropriately ordered that three disinterested appraisers be appointed to appraise the subject property and determine the damages for the taking. K.S.A. 2007 Supp. 26-504. The district court complied with the requirements of the Eminent Domain Procedure Act. We hold the district court did not abuse its discretion and did not misstate the law in denying Schuck's request for injunctive relief. Affirmed.",analysis
+520,2626674,1,2,"¶ 11 Mr. Wallace raises jurisdictional issues in his brief-in-chief. Much of his brief is dedicated to these issues. However, these issues were a part of the appeal in Appeal Number 102,346. The opinion of the Court of Civil Appeals notes that one of the orders from which Mr. Wallace appealed was in District Court Case No. PT-2002-56. [9] The present appeal from the conviction for indirect contempt of court is also from District Court Case No. PT-2002-56. ¶ 12 On December 22, 2006, the Court of Civil Appeals held that the appellant (Mr. Wallace) failed to show in his brief any support for his claim that the trial court did not have subject matter jurisdiction, and added that the record plainly revealed that the trial court acted within its authority to supervise the administration of the trusts at issue. ¶ 13 On March 26, 2007, this Court denied a motion to vacate the opinion of the Court of Civil Appeals. That appeal was from the trial court's July 6, 2005, order, which granted the petitioners' motion for approval of a sale purchase agreement, and from the trial court's order of July 7, 2005, [10] for sale of real property. The two orders approved the sale of real property owned by two trusts of which Mr. Wallace was named a beneficiary. Among the petitioners were Ronald Saffa and The Trust Company of Oklahoma. That appeal provided an opportunity for Mr. Wallace to raise his jurisdictional issues. The decision of the Court of Civil Appeals is res judicata. [11] ¶ 14 This present appeal is from a contempt proceeding, which is ordinarily regarded as a collateral or separate action from the underlying case and separately appealable. Appellate review is limited to the contempt order itself. Lerma v. Wal-Mart Stores, Inc., 2006 OK 84, ¶ 8, 148 P.3d 880, 883.",jurisdiction
+521,2066101,1,2,"The standard to be applied in reviewing a motion for new trial has been oft-repeated and is well settled in this jurisdiction. See Barbato v. Epstein, 97 R.I. 191, 193, 196 A.2d 836, 837 (1964). When passing on a motion for new trial, the trial justice acts as a thirteenth juror and exercises independent judgment on the credibility of witnesses and on the weight of the evidence. State v. Bergevine, 942 A.2d 974, 981 (R.I.2008) (quoting State v. Gomez, 848 A.2d 221, 234 (R.I. 2004)). In so doing, the trial justice must (1) consider the evidence in light of the jury charge, (2) independently assess the credibility of the witnesses and the weight of the evidence, and then (3) determine whether he or she would have reached a result different from that reached by the jury. State v. Schloesser, 940 A.2d 637, 639 (R.I.2007) (quoting State v. Morales, 895 A.2d 114, 121 (R.I.2006)). If, after conducting this independent review, the trial justice agrees with the jury's verdict or if the evidence is such that reasonable minds could differ as to the outcome, the motion for a new trial should be denied. Id. (quoting Gomez, 848 A.2d at 234 and State v. Otero, 788 A.2d 469, 472 (R.I. 2002)). If, however, the trial justice finds that the state has failed to prove the defendant's guilt beyond a reasonable doubt, a new trial must be ordered. Bergevine, 942 A.2d at 981; State v. Pona, 926 A.2d 592, 615 (R.I.2007). On review by this Court, a trial justice's ruling on a motion for new trial is entitled to great weight provided that he has articulated an adequate rationale for denying a motion. Bergevine, 942 A.2d at 981 (quoting State v. Hesford, 900 A.2d 1194, 1199 (R.I.2006) and State v. Rieger, 763 A.2d 997, 1002 (R.I.2001)). A trial justice's ruling on a new-trial motion will not be overturned unless the trial justice was clearly wrong or unless he or she overlooked or misconceived material and relevant evidence that related to a critical issue in the case. State v. Lynch, 854 A.2d 1022, 1046 (R.I.2004) (quoting State v. Bolduc, 822 A.2d 184, 187 (R.I.2003)).",standard of review
+522,2294303,1,4,"Having found that the prosecutrix's identification of Cefalo as her assailant was admissible, there can be no question that the evidence was sufficient to support the jury's verdict of guilty. As we have stated previously, State v. Foley, Me., 392 A.2d 1094 (1978); State v. McFarland, Me., 369 A.2d 227 (1977), the testimony of a prosecutrix is sufficient alone to support a conviction for rape. Accordingly, the entry must be: Appeal denied. Judgment affirmed. NICHOLS, J., did not sit.",sufficiency of the evidence
+523,2593107,1,8,"¶ 40 The majority inappropriately broadens the conceptual transfer of intent codified in RCW 9A.36.011 to create a dangerously limitless principle of law: as long as the defendant has the requisite mens rea with regard to any one person, she or he bears the risk of multiple convictions ... regardless of whether the defendant knows of their presence. Majority at 444. Under this reasoning, the act of firing a single bullet at a single intended victim can support criminal liability limited only by the number of people who apprehend harm from the shot. The legislature has provided other statutory options for charging a defendant who causes no injury but creates a substantial risk of death or serious physical injury to another person[(s)]. RCW 9A.36.050. With these statutes and the conceptual difficulties that arise when intent is transferred to uninjured victims, I find it unlikely that the legislature intended the first degree assault statute as a vehicle to impose nearly limitless criminal liability. I cannot uphold Elmi's convictions of first degree assault for unintended, unknown victims. WE CONCUR: MARY E. FAIRHURST and RICHARD B. SANDERS, JJ.",conclusion
+524,2831610,1,7,"As the many appellate decisions construing Rule 4-215 demonstrate, it is not unusual for a defendant represented by appointed counsel to seek a substitute. Perhaps because of a human tendency to equate price with value, assistant public defenders sometimes do not receive the credit they deserve from those they most directly serve – their clients. In most instances there is no good cause for a court to allow a discharge and appoint new counsel, and the defendant must decide whether to continue with current counsel or to proceed pro se. This is the rare case in which the court found good cause to discharge the assistant public defender assigned to Mr. Dykes. That determination, coupled with Mr. Dykes’ continued assertion of his right to counsel, required the court to take some action to obtain counsel for him, perhaps exercising its inherent authority to appoint counsel. Accordingly, we hold: 1. When an indigent defendant asks to discharge appointed counsel and the trial court determines, after conducting the inquiry required by Rule 4-215(e), that the defendant has a meritorious reason to discharge counsel, the decision to discharge counsel is not itself a waiver of appointed counsel. 28 2. If an indigent defendant has discharged appointed counsel for a meritorious reason and the Office of the Public Defender is unable or unwilling to provide new counsel, the trial court may appoint counsel for that defendant pursuant to its inherent authority. J UDGMENT OF THE C OURT OF S PECIAL A PPEALS R EVERSED. C ASE R EMANDED TO THAT C OURT WITH I NSTRUCTIONS TO R EVERSE THE J UDGMENT OF THE C IRCUIT C OURT FOR B ALTIMORE C OUNTY AND R EMAND TO THAT C OURT FOR F URTHER P ROCEEDINGS C ONSISTENT WITH THIS O PINION. C OSTS IN THIS C OURT AND IN THE C OURT OF S PECIAL A PPEALS TO BE PAID BY B ALTIMORE C OUNTY. 29 Circuit Court for Baltimore County Case No. 03-K-11-006626 Argued: April 8, 2015 IN THE COURT OF APPEALS OF MARYLAND No. 70 September Term, 2014 ______________________________________ ALEXANDER DYKES v. STATE OF MARYLAND ______________________________________ Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Watts, JJ. ______________________________________ Concurring Opinion by Watts, J. ______________________________________ Filed: August 27, 2015 Harrell, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Respectfully, I concur. I join Judge McDonald’s excellent opinion, and write separately only to observe that our holding in this case implies a responsibility that is not required by Maryland Rule 4-215(e)—namely, if an indigent defendant discharges counsel for a meritorious reason, a circuit court must upon request consider whether to exercise its authority to appoint new counsel. See Maj. Slip Op. at 27. From my perspective, this case illustrates the desirability that Maryland Rule 4-215(e) be reviewed by the Standing Committee on Rules of Practice and Procedure. Seven years ago, Judge Moylan aptly observed: “For a judge to traverse [Maryland] Rule 4-215 is to walk through a minefield. A miracle might bring one across unscathed. For mere mortals, the course will seldom be survived.” Garner v. State, 183 Md. App. 122, 127, 960 A.2d 649, 651 (2008), aff’d, 414 Md. 372, 995 A.2d 694 (2010). Regrettably, despite having been amended three times since then, Maryland Rule 4-215 remains a minefield. Indeed, Judge McDonald acknowledges that Maryland Rule 4-215(e)’s silence on “the situation of an indigent defendant entitled to appointed counsel” could be a “source of confusion[.]” Maj. Slip Op. at 26. Given that our holding in this case appears to impose upon circuit courts a responsibility that is not addressed in Maryland Rule 4-215(e), I would refer to the Rules Committee the issue of amending Maryland Rule 4-215(e) to clarify what a circuit court must do after determining whether or not there is a meritorious reason for discharge of counsel. For the above reasons, respectfully, I concur.",conclusion
+525,2518281,1,3,"¶ 18 Summary judgment is appropriate only if there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law. Utah R. Civ. P. 56(c). Because we resolve only legal issues in reviewing a summary judgment, we give no deference to the [district] court's view of the law; we review it for correctness. Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 32, 21 P.3d 198 (internal quotation marks omitted). In reviewing a grant of summary judgment, we determine only whether the [district] court erred in applying the governing law and whether the [district] court correctly held that there were no disputed issues of material fact. Ryan v. Dan's Food Stores, Inc., 972 P.2d 395, 400 (Utah 1998) (internal quotation marks omitted).",standard of review
+526,6340547,1,5,"[4,5] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the appeal. 7 For an appellate court to acquire jurisdiction of an appeal, there must be a final judgment or final order entered by the tribunal from which the appeal is taken. 8 Feik contends that the order appealed from is not a final order. [6,7] In probate proceedings, an appellate court applies the rubric of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) to determine whether an order is final. The relevant questions are whether the order was made during a special proceeding and affected a substantial right. 9 A proceeding under the Nebraska Probate Code is a special proceeding. 10 [8-10] We turn our attention to whether the order affected a substantial right. A substantial right is an essential legal right, not a mere technical right. 11 A substantial right is affected if an order affects the subject matter of the litigation, such as by diminishing a claim or defense that was available to an appellant before the order from which an appeal is taken. 12 Substantial rights under § 25-1902 include those legal rights that a party is entitled to enforce or defend. 13 [11] In the context of multifaceted special proceedings that are designed to administer the affairs of a person, an order that ends a discrete phase of the proceedings affects a substantial right because it finally resolves the issues raised in that 7 In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021). 8 In re Estate of Beltran, supra note 3. 9 Id. 10 See id. 11 Id. 12 Id. 13 In re Estate of Larson, supra note 7. - 988 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 phase. 14 Thus, a consideration regarding the finality of orders in probate cases is whether the order ended a discrete—that is, separate and distinct—phase of the proceedings. 15 A statute provides that “a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.” 16 Here, the probate court’s order appointing Kelly as personal representative ended a discrete phase of the probate proceeding. Moreover, the appointment order coupled with the issuance of letters of personal representative imposed fiduciary duties upon Kelly. 17 Because the order was made in a special proceeding and affected a substantial right, it was a final order. Appointment of Kelly as Personal Representative We next consider Kelly’s assignment of error alleging that the probate court “erred in appointing [her] as personal representative of the Estate because it lacked jurisdiction to make the appointment, [Kelly] objected to the appointment, and [she] did not accept the appointment as required by Nebraska Revised Statute § 30-2420.” During oral arguments, Kelly’s counsel argued in connection with this assignment that the letters were not effective. We understand Kelly’s assignment of error to encompass a challenge to the issuance of letters of personal representative to an appointee who refuses to qualify. Several probate statutes speak to qualification of a personal representative. One provides that “to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court 14 Id., citing John P. Lenich, What’s So Special About Special Proceedings? Making Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001). 15 In re Estate of Beltran, supra note 3. 16 Neb. Rev. Stat. § 30-2407(4) (Reissue 2016). 17 See Neb. Rev. Stat. § 30-2464 (Reissue 2016). - 989 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 or registrar, qualify and be issued letters.” 18 Another specifies that “the registrar . . . shall appoint the applicant subject to qualification and acceptance.” 19 Yet another states that “[p]rior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.” 20 The latter two statutes touch on another important component: acceptance. Acceptance of an appointment denotes consent to the appointment. 21 “Consent is the preliminary essential requirement for an appointment as an executor or administrator.” 22 The Utah Supreme Court addressed the necessity of consent in considering whether a court had the authority to compel an individual to serve as an administratrix against her will. 23 It found support for the requirement in its constitutional and statutory provisions: The Constitution of Utah prohibited “‘involuntary servitude,’” while a statute required that prior to issuance of letters testamentary or of administration “‘the executor, administrator or guardian must take and subscribe an oath that he will perform according to law the duties of executor, administrator or guardian, which oath must be attached to the letters.’” 24 The court explained the importance of appointing an individual willing to serve: A highly personal trust arises from an appointment as administrator and to compel one to serve against his will for the benefit of those to whom he has no obligation 18 Neb. Rev. Stat. § 30-2403 (Reissue 2016). 19 Neb. Rev. Stat. § 30-2420 (Reissue 2016). 20 Neb. Rev. Stat. § 30-2444 (Reissue 2016). 21 See “Accept,” Oxford English Dictionary Online, http://www.oed.com/ view/Entry/1006 (last visited Feb. 14, 2022) (“[t]o consent to”). 22 33 C.J.S. Executors and Administrators § 88 at 793 (2009). See Matter of Estate of Cluff, 587 P.2d 128 (Utah 1978). 23 See Matter of Estate of Cluff, supra note 22. 24 Id. at 129. - 990 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 would constitute a violation of public policy as well. It is necessary for the protection of estate heirs, creditors, and the general public that an administrator serve free from compulsion and that he only be allowed to serve when so willing. Generally speaking, only a willingness to serve is consistent with proper estate administration and the interest of the Court. 25 The Utah Supreme Court’s reasoning is persuasive. We need not discuss our own constitution, because our statute, as set forth above, requires that “a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.” 26 A consequence of acceptance is contained in a different statute: “By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person.” 27 With respect to acceptance, we find some parallels in our recent decision concerning a guardianship. 28 There, the county court directed that a ward’s parents be appointed as coguardians upon issuance of letters of guardianship and upon the parents’ filing, among other things, an acceptance of appointment. The parents never filed an acceptance. They appealed, assigning that the court erred in ordering them to serve as guardians over their objection. We agreed with the parents that “one who is not willing to serve as a private guardian cannot be compelled to accept such an appointment.” 29 And we 25 Id. at 129-30. 26 § 30-2444 (emphasis supplied). See, also, Neb. Ct. R. § 6-1446 (providing for appointment to be set aside where personal representative had been appointed but failed to qualify by filing required bond and acceptance within 60 days of appointment). 27 Neb. Rev. Stat. § 30-2445 (Reissue 2016). 28 See In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 (2021). 29 Id. at 11, 958 N.W.2d at 668. - 991 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 stated that “[o]nly after a written acceptance is filed and the guardian submits to the personal jurisdiction of the court will letters of guardianship be issued by the court.” 30 But in that case, because the parents never accepted the court’s appointment, no letters issued. In rejecting the assignment of error, we stated that “the appointment they assign as error was never completed and cannot be completed without their voluntary acceptance.” 31 The record is devoid of any statement of acceptance filed by Kelly. To the contrary, she filed an objection “as nominated personal representative” to the application for informal appointment of personal representative in intestacy and asked the court to dismiss the application. At oral argument, Feik conceded that no acceptance had been filed by Kelly. [12-14] As we stated with respect to a private guardian, it follows that one who is not willing to serve as a personal representative cannot be compelled to accept such an appointment. Without acceptance by one appointed personal representative, there can be no qualification. 32 And the Nebraska Probate Code requires qualification of a personal representative before the issuance of letters. 33 In other words, in the absence of qualification, the issuance of letters as part of the appointment proc­ ess is not authorized by statute. Here, the court issued letters to Kelly without her qualification. Because this action was not statutorily authorized, we reverse the order directing issuance of letters and the letters issued in accordance with that order, and remand the cause for further proceedings. [15] We express no opinion on the validity or effect of any actions taken in reliance upon the letters issued to Kelly. 30 Id. 31 Id. at 11-12, 958 N.W.2d at 669. 32 See § 30-2444. 33 See §§ 30-2403, 30-2420, and 30-2444. - 992 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 Such questions may well exist, but they are beyond the scope of the present probate proceeding. In the absence of an actual case or controversy requiring judicial resolution, it is not the function of the courts to render a judgment that is merely advisory. 34 And to the extent that the reasoning of the county court conveyed in an order within the probate proceeding may seem to express an opinion on matters outside the scope of the appointment proceeding itself, we reverse those portions of the probate court’s order. Statute of Limitations Kelly also argues that § 30-2408 prohibited the commencement of the appointment proceeding. The parties agree that it was commenced more than 3 years after Severson’s death and that no prior appointment or probate proceeding had occurred. But Kelly contends that no exception under § 30-2408 applies while Feik relies upon the exception in subsection (4), which states that “an informal . . . appointment proceeding may be commenced thereafter if no formal or informal proceeding for probate or proceeding concerning the succession or administration has occurred within the three-year period, but claims other than expenses of administration may not be presented against the estate.” We agree with Feik. [16] The exception applies because no such proceeding had occurred within the 3-year period. Statutory language 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 unambiguous. 35 Over a decade ago, we declared that “[§] 30-2408 clearly permits an informal appointment proceeding to be commenced more than 3 years after the decedent’s death ‘if no formal or informal proceeding for probate or proceeding concerning the succession or administration has occurred 34 State ex rel. Peterson v. Ebke, 303 Neb. 637, 930 N.W.2d 551 (2019). 35 In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007). - 993 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 within the three-year period.’” 36 Thus, a proceeding could be commenced here to appoint a personal representative. We read the clause regarding “claims other than expenses of administration” as limiting the scope of the proceeding rather than its commencement. 37 Remaining Assignments of Error [17] Because we reverse the order directing issuance of letters of personal representative and remand the cause for further proceedings, we need not consider Kelly’s other assigned errors. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 38",jurisdiction
+527,1819124,1,3,"The pharmaceutical manufacturers first argue that they are entitled to the writ of mandamus because the trial court's order articulates no principled basis for consolidation of the cases for trial and, thus, they argue, the trial court exceeded its discretion in consolidating the cases. They further argue that the trial court exceeded its discretion when it consolidated these cases for trial because, the pharmaceutical manufacturers argue, these cases involve no common question of law or fact. Finally, the pharmaceutical manufacturers argue that the trial court exceeded its discretion because, they argue, a consolidated trial would not promote judicial economy, would confuse the jury, and would prejudice each defendant.",issues
+528,4542696,1,4,"1. Motion to Suppress (a) Additional Background Law enforcement officers interviewed Guzman and recorded the conversation. When Guzman was brought into a room at 13 See State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006). 14 State v. Thalken, supra note 12. 15 Neb. Ct. R. App. P. § 2-101(E) (rev. 2015). 16 See, § 29-2315.01 and Neb. Rev. Stat. § 29-2321 (Reissue 2016). 17 See State v. Stafford, 278 Neb. 109, 767 N.W.2d 507 (2009). 18 See State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017), modified on denial of rehearing 296 Neb. 606, 894 N.W.2d 349. 19 State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016). - 385 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 his place of employment, a detective identified himself as a police officer and read Guzman his Miranda rights. There is no dispute that from that point forward, Guzman was in custody. Guzman moved to suppress his statements to police. He claimed that at almost 2 hours into the interview, he “clearly invoked his right to counsel, asking if he had the opportunity to get a lawyer, to which officers responded no.” At the hearing on the motion to suppress, a detective testified that Guzman began asking questions “about when he could get a lawyer.” According to the detective, Guzman did not say he wanted a lawyer; rather, “he just asked about the process of getting one.” The detective testified: “We were talking about the search warrant. Essentially he was asking questions if he could get an attorney to deal with . . . the search warrant, if it could be stopped.” The court overruled the motion to suppress. With regard to the invocation of a right to counsel, the court stated: [A]t the 1 hour, 54 minute mark, [Guzman] asked officers, “Can I talk to a lawyer first?” . . . [W]hen putting it in the context of what was occurring during said exchange, the Court finds that [Guzman] did not clearly invoke his rights. Specifically, law enforcement [officers were] in the process of searching [Guzman’s] phone, and while doing so, [Guzman] was conversing with them about the search and asked if he could speak with a lawyer before they searched his phone. [They] informed him that they already had a search warrant and that he did not get to speak to an attorney before they conducted the search. Thus, the Court finds that [Guzman’s] statement of “Can I talk to a lawyer first” was in the context of the search, rather than a clear invocation of his Miranda rights for purposes of the custodial interrogation. (b) Standard of Review [5] In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law - 386 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 enforcement procured it by violating the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 20 an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial court’s determination. 21 (c) Discussion On appeal, Guzman does not dispute that he waived his Miranda rights during the custodial interrogation. “[A]fter a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” 22 And Guzman does not challenge the district court’s factual findings. Rather, Guzman argues that he requested an attorney at the 1-hour54-minute mark of the recorded interrogation and that thus, any statements he made should have been suppressed. [6] In order to require cessation of custodial interrogation, the subject’s invocation of the right to counsel must be unambiguous and unequivocal. 23 “Statements such as ‘“[m]aybe I should talk to a lawyer”’ or ‘“I probably should have an attorney”’ do not meet this standard.” 24 Guzman contends that his question—“‘Can I talk to a lawyer first?’”—was a clear invocation of the right to counsel. We disagree. “An expression of doubt or uncertainty cannot be considered unequivocal.” 25 Similarly, an Arizona court determined that “‘Do you think I 20 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 21 State v. Clifton, 296 Neb. 135, 892 N.W.2d 112 (2017). 22 Davis v. United States, 512 U.S. 452, 461, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). 23 State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009). 24 Id. at 959, 774 N.W.2d at 744-45. 25 State v. Lynch, 169 N.H. 689, 697, 156 A.3d 1012, 1019 (2017). - 387 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 should get a lawyer?’” does not constitute an invocation of right to counsel. 26 Here, Guzman never explicitly stated that he wished to have an attorney present. The circumstances surrounding an alleged invocation are part of the objective inquiry into whether such an invocation of the right to counsel was made. The U.S. Supreme Court explained that “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, [the Court’s] precedents do not require the cessation of questioning.” 27 Here, the officers perceived Guzman’s question about an attorney to be in connection with the search for his cell phones and not an assertion that Guzman did not wish to speak without an attorney present. That perception was reasonable under the circumstances. The district court did not err in overruling Guzman’s motion to suppress. 2. Motion for Mistrial (a) Additional Background In March 2018, Ruben Rodriguez was deposed on Guzman’s behalf. At trial, the State called Rodriguez as a witness during the State’s case in chief. When asked where he had lived in the past 5 years, Rodriguez provided information which was inconsistent with his deposition testimony. When Rodriguez testified that he saw B.G. at her party in October 2017, the prosecutor impeached him with his deposition testimony that the party was in September. When Rodriguez named seven people with whom he went to the party, the State pointed out that Rodriguez testified in his deposition that he went to the party with four individuals. During trial, Rodriguez also gave answers different from those in his deposition as to when he took an individual home, how may beers he consumed at the 26 See State v. Prince, 160 Ariz. 268, 272, 772 P.2d 1121, 1125 (1989). 27 Davis v. United States, supra note 22, 512 U.S. at 459 (emphasis in original). - 388 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 party, whether a certain individual was at the party, whether he saw Guzman walk B.G. up the stairs, and whether he made a “gas station run.” In a conversation out of the jury’s presence and unprompted by defense counsel, the court raised a concern that Rodriguez provided no substantive evidence. The court opined that “the sole purpose for hi[s] being called was to discredit him in any testimony he may have,” which the court did not think was permissible. The prosecutor responded that he expected Rodriguez would testify consistently with his deposition. Because Rodriguez did not, the prosecutor wanted “to make sure that the record’s clear on what he’s testifying to.” The prosecutor stated that he did not call Rodriguez “simply to impeach him.” The court then directed the parties to brief whether it is permissible to call a witness for the limited purpose of discrediting the witness. With the jury present, the court announced, “There ha[ve] been some conversations between Counsel and I need them to follow up on something for me, so we’re going to be recessing for the weekend a little bit early today.” When trial resumed after the weekend break, Guzman moved for a mistrial. His counsel explained that he subpoenaed Rodriguez, because Rodriguez had exculpatory information, but that “what the State did was discredit that witness before [the defense] could call him and elicit the exculpatory information.” The State argued that it “can’t control whether someone is going to get up there and lie or not, and they [sic] had no reason to expect them [sic] to.” The court found that there was not sufficient evidence that the State called Rodriguez for the purpose of impeachment. (b) Standard of Review [7] Decisions regarding motions for mistrial are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion. 28 28 State v. Schmaltz, 304 Neb. 74, 933 N.W.2d 435 (2019). - 389 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 (c) Discussion Guzman argues that the court erred in not granting his motion for mistrial based on prosecutorial misconduct. Before considering whether a mistrial would be proper, we must determine whether there was misconduct by the prosecution. [8,9] When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor’s acts constitute misconduct. 29 Prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various conducts because the conduct will or may undermine a defendant’s right to a fair trial. 30 Prosecutors are charged with the duty to conduct criminal trials in such a manner that the accused may have a fair and impartial trial, and prosecutors are not to inflame the prejudices or excite the passions of the jury against the accused. 31 A prosecutor’s conduct that does not mislead and unduly influence the jury is not misconduct. 32 According to Guzman, the prosecutor engaged in misconduct by calling Rodriguez as a witness and impeaching him with testimony from his deposition on “trivial matters.” 33 Guzman contends that the State attacked Rodriguez’ credibility before Guzman could call Rodriguez as a witness. [10-12] Generally, the credibility of a witness may be attacked by any party, including the party who called the witness. 34 One means of attacking the credibility of a witness is by showing inconsistency between his or her testimony at trial and what he or she said on previous occasions. 35 But a party cannot impeach his or her own witness without limitation. 36 29 Id. 30 Id. 31 Id. 32 Id. 33 Brief for appellant at 25. 34 State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015). 35 Id. 36 Id. - 390 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 The State’s impeachment of Rodriguez does not amount to prosecutorial misconduct. The State called Rodriguez to testify, because he had information useful to the State’s case. The State had no reason to anticipate that Rodriguez would not testify consistently with his sworn deposition testimony. Assuming without deciding that Guzman’s motion for mistrial was timely, the court did not abuse its discretion in overruling the motion. 3. Motion for Directed Verdict (a) Additional Background [13] Guzman challenges the denial of his motion for directed verdict, but he waived the issue by presenting evidence. After the court overruled Guzman’s motion for a directed verdict of acquittal on both charges, the defense proceeded to call a witness. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State’s case in chief in a criminal prosecution and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court’s overruling the motion for dismissal or a directed verdict but may still challenge the sufficiency of the evidence. 37 We consider Guzman’s argument as one challenging the sufficiency of the evidence. (b) Standard of Review [14] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, 37 State v. Briggs, supra note 8. - 391 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. 38 (c) Discussion [15] When a criminal defendant challenges the sufficiency of the evidence upon which a conviction is based, 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. 39 The State met its burden with respect to both charges. With respect to the sexual assault charge, Guzman’s brief does little more than attack the credibility of B.G. But an appellate court does not pass on the credibility of witnesses or reweigh the evidence. B.G. testified that she did not consent to having sex with anyone on the night of her party, and an attendee at the party testified that Guzman said he had sex with B.G. There was also abundant testimony about B.G.’s intoxication. Viewing the evidence most favorably to the State, a fact finder could conclude that Guzman subjected B.G. to sexual penetration without her consent or under circumstances when he knew or should have known that B.G. was mentally or physically incapable of resisting or appraising the nature of her conduct. 40 Guzman also contends that the State failed to adduce sufficient evidence to support the charge of tampering with a witness. Under Neb. Rev. Stat. § 28-919(1) (Reissue 2016): A person commits the offense of tampering with a witness or informant if, believing that an official proceeding or investigation of a criminal or civil matter is pending or about to be instituted, he or she attempts to induce or otherwise cause a witness or informant to: 38 State v. Case, 304 Neb. 829, 937 N.W.2d 216 (2020). 39 Id. 40 See Neb. Rev. Stat. § 28-319(1) (Reissue 2016). - 392 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 (a) Testify or inform falsely; (b) Withhold any testimony, information, document, or thing; (c) Elude legal process summoning him or her to testify or supply evidence; or (d) Absent himself or herself from any proceeding or investigation to which he or she has been legally summoned. Guzman asserts that he merely relayed a message asking B.G. to drop the charges and that such action did not constitute tampering with a witness. He claims that he did not threaten or bribe B.G., did not ask her to testify falsely, and did not ask her not to go to court. But B.G. reported that she was sexually assaulted. By asking B.G. to drop the charges, Guzman was essentially asking her to inform falsely or to withhold information. The State adduced sufficient evidence at trial to support the conviction for tampering with a witness. 4. Sentences (a) Additional Background Finally, Guzman argues that his sentences were excessive. For first degree sexual assault, a Class II felony, 41 the court imposed a sentence of 12 to 20 years’ incarceration. At the time of the crime and sentencing, tampering with a witness was a Class IV felony. 42 For that conviction, the court imposed a concurrent sentence of 2 years. (b) Standard of Review [16] An appellate court will not disturb a sen­tence imposed within the statutory limits absent an abuse of discretion by the trial court. 43 [17] Plain error may be found on appeal when an error unasserted or uncomplained of at trial is plainly evident from the 41 See § 28-319(2). 42 See § 28-919(3). 43 State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020). - 393 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 record, affects a litigant’s substantial right, and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. 44 (c) Discussion [18] Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. 45 In determining a sentence to be imposed, relevant factors customarily considered and applied are 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 amount of violence involved in the commission of the crime. 46 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. 47 Guzman argues that an examination of the presentence report shows the sentencing factors weigh in favor of a lighter sentence. Some do. According to the presentence report, Guzman was 21 years old, was a high school graduate, and was consist­ ently employed prior to incarceration. His minimal criminal record consisted of traffic violations, an “MIP,” and a curfew violation. But other considerations do not favor a light sentence. An instrument designed to determine a defendant’s risk for recidivism put him in the high risk range to reoffend. With respect to the charges he stated: “‘Bullshit. It’s embarrassing and has affected everyone around me. This case has ruined 44 State v. Briggs, supra note 8. 45 See State v. Iddings, supra note 43. 46 Id. 47 Id. - 394 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 my character. It’s the worst thing that could have happened to me.’” We cannot say that the court abused its discretion in sentencing Guzman. However, the State asserts that the court’s sentence for the witness tampering conviction was erroneous. Here, the court imposed a sentence for a Class II felony and a concurrent determinate sentence for a Class IV felony for offenses occurring in 2017. But a statute provides: For any sentence of imprisonment for a Class . . . IV felony . . . imposed consecutively or concurrently with . . . a sentence of imprisonment for a Class . . . II . . . felony, the court shall impose an indeterminate sentence within the applicable range in section 28-105 that does not include a period of post-release supervision, in accordance with the process set forth in section 29-2204. 48 [19,20] The court plainly erred by imposing a determinate sentence for the Class IV felony. The failure to impose an indeterminate sentence when required by statute constitutes plain error. 49 An appellate court has the power on direct appeal to remand a cause for the imposition of a lawful sentence where an erroneous one has been pronounced. 50 We therefore vacate Guzman’s sentence for tampering with a witness and remand the cause for resentencing on that conviction.",analysis
+529,4541411,1,5,"¶36 For the foregoing reasons, we affirm the court of appeals’ judgment on different grounds.",conclusion
+530,1936088,1,7,"When reviewing a challenge to the sufficiency of the evidence, this Court considers all of the evidence in the light most consistent with the verdict, giving the State the benefit of all inferences favorable to the verdict. When the evidence before the jury is such that reasonable jurors could have found the defendant guilty, the verdict is beyond the Court's authority to disturb. McFee v. State, 511 So.2d 130, 133-34 (Miss. 1987). The jury was instructed that, to find Taylor guilty of capital murder, it must find beyond a reasonable doubt that: (1) Taylor was under sentence of life imprisonment, and (2) Taylor, without authority of law and not in reasonable self-defense, murdered Mildred Spires. Taylor contends that because the witnesses who testified that he had made incriminating statements to them were unsavory strangers, their testimony is unreliable, unbelievable, and constituted insufficient evidence on which to base a conviction. He specifically points to the fact that Stanley Evans was an ex-convict with prior convictions for house burglary and grand larceny who admitted that he was a police informant. The evidence in this case, if believed by the jury, is sufficient to support a conviction without eyewitnesses to the crime or physical evidence linking Taylor to the crime. The testimony of the witnesses showed that Taylor was angry with his wife and planned to get her by harming one of her children. On July 11, 1987, Taylor had two angry confrontations with Edith Taylor and within an hour or so of the last of these confrontations, he telephoned Mildred Spires. Taylor had no alibi from about 5:00 p.m. until 7:00 p.m. when he telephoned his girlfriend. Taylor gave conflicting accounts of the scratches on his face and body and none of the accounts could be verified. His girlfriend told police that Taylor had asked her to lie and say that she had scratched him. Shortly after he was questioned, Taylor asked a friend to find a prostitute whom he could pay to say she had scratched him. About a month later, he told another friend that he had killed Mildred Spires. Mildred's decomposed body was found in her own automobile on September 1, 1987. The jury, having heard all of the witnesses who were thoroughly cross-examined and giving their testimony weight, could reasonably have reached a guilty verdict.",sufficiency of the evidence
+531,2831988,1,1,"A husband and wife filed for dissolution in 1986 and the court awarded the wife monthly child support. But the parties did not actually separate until 2007, save a period apart from 1997 to 2001. Their dissolution was a sham, structured to shield otherwise marital property from the husband’s bankruptcy. After the parties actually separated in 2007, the wife contacted the Child Support Services Division to enforce past due child support dating back to 1986, which totaled nearly $118,000. The husband filed a motion for relief from the child support judgment. The superior court granted the motion after concluding that the parties’ original dissolution had been obtained by a fraud on the court. The superior court used its discretion under Alaska Civil Rule 60(b)(6) to set aside the 1986 dissolution and order a division of property and child support as of 2007, when the parties actually separated. The wife appeals. Because the parties’ 1986 dissolution used the court system as a tool to defraud creditors and thus undermined the court’s integrity, we affirm the superior court’s conclusion that the dissolution was a fraud on the court under Rule 60(b)(6).",introduction
+532,2232847,2,5,"Williams argues that the evidence was insufficient to convict him of attempted criminal deviate conduct and criminal confinement. Many of Williams' contentions rest upon the fact that Edmondson engaged in certain acts which he did not. However, the acts of one accomplice are imputed to all other accomplices when they act in concert in the furtherance of a crime. Jones v. State, 536 N.E.2d 267, 270 (Ind.1989), reh'g denied. It is not necessary that the evidence show that Williams personally participated in the commission of each element of the offense. Id.
+Williams first argues that the evidence does not support his conviction for attempted criminal deviate conduct [12] because there is no evidence that he engaged in a substantial step toward the commission of criminal deviate conduct. He concedes that he asked the victim to perform oral sex on him but argues that [n]othing else was said or demonstrated ... in furtherance of this request. The victim testified that 1) she was ordered to commit sexual acts with both men simultaneously and 2) while they were giving these orders, Edmondson was holding a gun. See Johnson v. State, 272 Ind. 547, 549, 400 N.E.2d 132, 133 (1980) (defendant's command to victim is sufficient to support conviction for attempted criminal deviate conduct). She also testified that as she tried to get away she was forced back into the car and some of her clothing was forcibly removed. This is clearly sufficient to show that substantial steps were taken toward the commission of criminal deviate conduct. Williams next argues that there was insufficient evidence to elevate his conviction to a Class A felony. Criminal deviate conduct becomes a Class A felony if it is committed while armed with a deadly weapon.... IND.CODE § 35-42-4-2 (1993). The victim testified that Edmondson had a gun in his hand when ordering her to submit to the sex acts. Williams claims that because Edmondson pulled the gun and placed it on the arm rest, he had no control over the weapon. However, the jury could reasonably infer that the gun was initially in Edmondson's control and was intended to remain there. That is enough for Edmondson's attempt even if control of the gun was lost. As noted above, each accomplice is criminally liable for the acts of the other in furtherance of their common objective. Jones, 536 N.E.2d at 270. Thus, Williams is liable for the presence of the gun and his conviction for a Class A felony is supported by the evidence.
+Finally, Williams contends that the evidence is insufficient to support his conviction for criminal confinement, a Class B felony. [13] He specifically argues that no one forced the victim to get into [the] Defendant's car. While it may be true that the victim initially entered the car voluntarily, at some point in time she decided she wanted to leave. When she attempted to escape, she was pulled back into the car. She was then in the back seat struggling with Edmondson and screaming for help, as Williams drove to the park. Edmondson then held a gun as the men told her what they wanted her to do. From this evidence, the jury could reasonably infer that the two, including Williams, committed criminal confinement by means of a deadly weapon.",sufficiency of the evidence
+533,6322192,1,3,"[1,2] A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law. 3 Statutory interpretation is a question of law. 4 [3] When reviewing questions of law, an appellate court resolves the questions independently of the lower court’s conclusions. 5",standard of review
+534,2190063,1,1,"This case turns entirely on the affidavits submitted to the judicial officer in support of the application for the warrants. The affidavit supplied for the first warrant is the most important. It was prepared by a state police officer and details the facts gathered in an eight month investigation of drug trafficking at a tavern (the Tavern) in Bennington County, in which defendant was the bouncer. The major facts and allegations set forth in the six and one-half page supporting affidavit are as follows. The affidavit describes fifteen separate events involving the Tavern and covers a period from November, 1983 through July 15, 1984—three days before the warrant was issued. In addition, the affidavit describes investigatory findings to corroborate details supplied by informants and to identify the owner, employees and patrons of the Tavern. Of the fifteen events, nine were related to the affiant by four confidential informants. The first described himself as a patron of the Tavern. In January, 1984, he stated that he purchased cocaine from the bartender whom he identified by name and by description. He further stated that he observed other people purchasing cocaine in the Tavern and that the transactions took place in the rear of the building by the fooze ball machine. He stated that some of the drug sales were made by the bouncer whom he identified from a photographic lineup as the defendant in this case. At the end of January, this informant again reported that he observed a recent drug transaction at the Tavern, involving the bartender. The second confidential informant reported in March, 1984 that while present in the Tavern he observed the owner sell speed to another person. He also reported the names of the owner and employees of the Tavern. The third confidential informant spoke with another police officer in June. She reported that she had observed the bartender at the Tavern sell cocaine to her boyfriend. She reported that it was known that drugs of all types were available at the Tavern and stated the prices of various kinds of drugs. Further, she reported that to buy drugs in the Tavern, one normally spoke with the bartender. This informant made another report on July 5th. She described buying LSD at the Tavern and stated that the transaction took place in the rear of the bar. The fourth informant provided the most information. On July 8th, this informant reported that he had purchased drugs in the Tavern in the past, with the most recent transaction occurring about two weeks earlier. He described how drugs were sold and indicated he normally dealt with the bartender. He also advised that cocaine was also sold by a regular customer whom he described. The fourth informant reported that he and a friend tried to buy cocaine on the night of July 14th at the Tavern. No cocaine was available at that location. However, the defendant took them to his apartment and sold them a quarter ounce of cocaine. On July 15th, the fourth informant made a controlled drug purchase at the Tavern. He was strip searched before entering the Tavern and after leaving it. He took in $25 in marked bills and returned with $5 and a quantity of LSD. He said he bought it from the regular patron that he had previously reported. The affidavit provides no specific information about the credibility of the four informants. There is no indication that the informants provided information to the police in the past. The other events described in the affidavit generally were the results of surveillance conducted outside and inside the Tavern. Law enforcement officers observed a regular pattern of persons entering the Tavern and leaving a short time later. In one instance, the officer observed a person leave the Tavern, enter his car and snort a substance the officer believed to be drugs. In another, persons left the Tavern, went to their automobile and passed around a cigarette which may have been marijuana. Surveillance within the bar showed a lot of activity at the rear near the fooze ball machine. The information gained by the officer from other sources about the employees— e.g., name, description, etc.—confirmed that supplied by the informants. In addition, the affiant determined that the bartender had been convicted of possession of marijuana two years earlier. Based on the above information, the judicial officer issued a warrant to search the Tavern and the person of all employees present (named as the bartender, the defendant and the tavern owner) for drugs, records and paraphernalia used in drug trafficking. Upon the execution of the warrant, defendant was detained and taken to the police barracks. A search there found twenty-four packages of cocaine and $40 in cash. The second search took place eight days later. The affidavit in support of the application for the second search warrant relied on the earlier affidavit and the results of the earlier search. In addition, the affiant stated that one day earlier an informant reported witnessing a drug sale in the Tavern. The sale was made by the bartender. The substance sold was retrieved and found to be cocaine. Again defendant was detained during the search and taken to the police station. Again a quantity of cocaine and cash was found on the defendant.",facts
+535,6332130,1,5,"For the foregoing reasons, we reverse the district court’s order of summary judgment and remand the cause for further proceedings. Reversed and remanded for further proceedings. Miller-Lerman, J., not participating. 35 Grand Island School Dist. #2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979). 36 Id. at 562-63, 279 N.W.2d at 606.",conclusion
+536,1251691,1,1,"The first jurisdictional issue is whether the evidentiary rulings herein are the proper subjects for an interlocutory appeal pursuant to K.S.A. 22-3603. It should be noted the district court did not base any of the complained-of rulings on violation of defendant's constitutional rights. K.S.A. 22-3603 provides: Interlocutory appeals by the state. When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal. (Emphasis supplied.) Defendant, in reliance on State v. Boling, 5 Kan. App.2d 371, 617 P.2d 102 (1980), contends K.S.A. 22-3603 authorizes an interlocutory appeal by the State from orders of suppression only when the evidence is suppressed as having been obtained in violation of a defendant's constitutional rights. The Court of Appeals, in Boling, held the statute did not authorize interlocutory appeals by the State from rulings excluding evidence predicated upon statutory rules of evidence. The State argues the Court of Appeals' construction of K.S.A. 22-3603, as expressed in Boling, is too narrow and the statute authorizes interlocutory appeals in any situation where the complained-of exclusion of evidence substantially impairs the State's ability to prosecute the case. This precise issue has been decided in State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984). In Newman this court stated: We have concluded that the narrow interpretation of the term `suppressing evidence' in K.S.A. 22-3603 set forth in Boling should be rejected and should not be followed in this state. We hold that the term `suppressing evidence' as used in that statute is to have a broader meaning than the suppression of evidence which is illegally obtained. It should include not only `constitutional suppression' but also rulings of a trial court which exclude State's evidence so as to substantially impair the State's ability to prosecute the case. p. 34. We conclude the State has made an adequate showing the complained-of exclusion of evidence substantially impairs the State's ability to prosecute the case. Accordingly, we further conclude the challenge to jurisdiction asserted in this issue is without merit. In the second jurisdictional issue defendant contends the complained-of rulings excluding evidence were temporary rather than final orders and, hence, are not proper subjects for appellate review. By virtue of the nature of this issue, the relevant facts must be set forth in considerable detail. After the mandate was received in Galloway I, the State filed a motion requesting: (1) all pending motions of defendant be set for hearing; and (2) the case be set for trial. One of defendant's motions sought suppression of the police investigation composite picture (Identi-Kit) of the alleged rapist. On January 7, 1983, the district court set a trial date of February 7, 1983. On January 27, 1983, the State filed a motion raising an issue whether statements made by the defendant's wife to a police officer, concerning the wife's observation of the university keys at defendant's residence, were protected by marital privilege. On February 2, 1983, defendant filed a motion to suppress photographic lineup identification evidence and requested an order in limine excluding in-court identification testimony. All motions then pending were called for hearing on February 4, 1983. The State had issued subpoenas for witnesses to be present on the various evidentiary issues. The witnesses were present. For some unexplained reason only legal arguments were heard at the February 4 hearing, and no witnesses were called to testify. At the conclusion of the hearing the district court reserved judgment on the defendant's motions to suppress the Identi-Kit photographs and the photographic lineup identification. Relative to the marital privilege issue, the district court indicated it saw no difficulty with defendant's wife testifying as to observation of the keys but, in essence, would defer any ruling thereon until defense counsel submitted some authority. Sometime during the weekend of February 5/6, 1983, the district court notified all parties that, due to a snowstorm and resulting poor parking conditions at the Douglas County Court-house, the trial would be continued for one week from Monday, February 7, to Monday, February 14, 1983. On Tuesday, February 8, 1983, defendant filed a motion seeking his discharge because of an alleged violation of his statutory right to a speedy trial pursuant to K.S.A. 22-3402. Later that day the district court assembled the parties concerned and held a hearing on the speedy trial motion. The district court denied defendant's motion for discharge. Then, without prior notice to the State, the district court took up defendant's motions to suppress the police investigation composite photograph and photographic lineup identification, and the State's motion pertaining to the wife's observation of the university keys at the couple's residence. During the February 8 hearing, the district court sustained defendant's motion to suppress the Identi-Kit photograph and the photographic lineup identification. Additionally, the district court held testimony of the wife's observation of the keys would be excluded on the basis of marital privilege. The specific language utilized by the district court is crucial to the determination of this issue and must be set forth in considerable detail. In commencing the February 8, 1983, hearing, the district court complimented the defense attorney, Mr. Heeb, for his timely filing of the speedy trial motion as it made it possible for the court to have a hearing and the court wanted also to  dispose of some of the other matters in this case that I have now had time to reflect upon. (Emphasis supplied.) After denying defendant's speedy trial motion, the district court announced: Now the reason I'm glad you filed that and filed it promptly is because I wanted to make some rulings in connection with some of these other matters that I have had time to research and reflect upon, and I would now enter the following orders: With regard to the Identi-Kit, the motion in limine will be granted as to presentation of the Identi-Kit picture except as might be appropriate for rebuttal. (Emphasis supplied.) The district court informed the parties the composite photograph (Identi-Kit) was properly excluded as hearsay. The court then considered an issue involving K.S.A. 60-455 (other crimes or civil wrongs evidence), which is not an issue on appeal. After addressing the K.S.A. 60-455 issue, the district court ruled on the State's motion relative to the propriety of the wife's testimony on her observation of the university keys at the marital residence, stating: THE COURT: Three: With regard to the privileged communication. Under 60-407 ordinarily the admissibility of all evidence is tested as to its relevance unless an exclusion — unless some exclusion or privilege keeps that evidence out. 60-428 excludes confidential communication. Six Washburn Law Journal 157, which counsel was nice enough to furnish me says that the rationale is protection of the marital harmony. I believe I already indicated that any statements made by the defendant to the wife would appear to be privileged communication, and I now adopt that as the Court's ruling. I think it is. And anything he said to her should be properly suppressed. Although there is not any authority which I have been able to put my finger on quickly as to her observation as to the keys, I can't see any difference between the spoken word and leaving the keys for the wife to see. Whether he says `I got the keys' and says something about them, or leaves them there where the wife can see them is part and parcel of the same thing, and if the rationale is in fact to protect marital harmony then there is nothing to hide from the spouse, nothing to worry about her seeing because it seems to me she should not be allowed to testify against him in that regard either. Therefore the motion in limine will be granted. There will be no statements made about the keys or seeing the keys on the part of the wife. Here again I must note that if the defendant offers some explanation or gets into the subject there easily could arise the situation of a waiver, and we will have to watch carefully because even though the order is in effect there could be a waiver of the privilege by virtue of testimony by way of explanation. (Emphasis supplied.) The district court then took up the defendant's motion to suppress the prosecutrix's pretrial photographic lineup identification of the defendant as her attacker. The battle on this issue had been fought in part on testimony by the prosecutrix at the preliminary hearing relative to her in-court identification of defendant wherein the following had occurred on direct examination: Q. Could you describe or give the description of what the person looked like? A. Well, he was — he just looked like a medium height man, medium weight, muscular, kind of trim, not fat and not thin. A real full round face was one thing that I noticed. Q. Okay. I'd like you to look around the courtroom and I'll ask you if the person that's in the courtroom that put you in the car that night at knifepoint. MR. HEEB: Objection, Your Honor, she stated that she never did see the individual and never saw the individual's face. There's no — there's no background or foundation to believe that she can make any kind of an identification. THE COURT: It's still a proper question. Objection is overruled. A. Well I never saw a good full front view, but I do think it's him (indicating). Q. Okay. You mean the person sitting over here in the gray-green overalls?
+Q. Okay. Let the record reflect that the witness has identified the defendant. Why do you feel that it was him? What is it about him that makes you feel that way? A. Well, it looks like him. Like I told you that if you put me in a room with fifty people I probably wouldn't be able to pick him out. Q. Okay. A. Out of a crowd like that. Q. Okay. MR. HEEB: Your Honor, I move to strike that identification. It's obviously based on an in-court situation where there's a defendant sitting in jail garb and she picked him out and says he looks like the man, but she's — by her own admission couldn't pick the man out of a room of fifty people. That's improper identification and I move to strike that testimony. THE COURT: I think the identification is subject to cross-examination. It's a tentative identification and you can ask all those questions, but it's still a proper question and the response was proper. Objection is overruled. (Emphasis supplied.) The district court in ruling on the suppression of the photographic lineup motion stated: Four: As to the in-court identification and photo lineup. I read again very carefully the quoted testimony from the transcript. It appears to me that the witness has said under oath that `If you put me in a room with fifty people I couldn't pick him out'. Apparently she was shown a lineup or photographic lineup of six people knowing at the time that there was a man in custody, and I gather knowing that something of hers was found with this man. In other words the odds were changed from one to fifty, to one to six. The point I would make is if she can't pick one out of fifty it's not fair to make the odds one out of six in order to make an identification or to rehabilitate her testimony. She has apparently said, `He looks like the man'. She could take the stand and she can say that. But you can't go any further with regard to the photographic lineup because she also made it clear although `He looks like the man' she `Couldn't pick him out of a room with fifty people in it'. So the motion in limine on that item is granted. MR. HEEB: I'm sorry. I didn't quite understand. Is there to be no evidence concerning the photo lineup? THE COURT: That's right. She can say on the stand he looks like the man, and I suspect on cross-examination she will be asked if she hadn't said, `If you put him in a room with fifty people . ..' she couldn't pick him out. I don't expect the State would offer that, although they might. But the most you've got from this witness is that `He looks like the man'. It's obvious to me the State's case is not based upon that identification other than `He looks like the man', but it's clear the State does not have the defendant identified beyond a reasonable doubt visually. The State is using the property of the victim which were the keys which were found in the defendant's house, and they're relying upon the sameness to another crime which may or may not be admissible after we conduct the Bly Hearing. (Emphasis supplied.) It should be noted, for the sake of accuracy, it is undisputed that eight rather than six photos were involved in the photographic identification. The district court concluded its activities in disposing of the various motions by declaring: I suspect that we need not journalize those orders as long as you understand what they are because we have them clearly on the record, and I will have them in front of me here.  (Emphasis supplied.) The assistant district attorney representing the State advised the court she had not been told that motions other than the motion for dismissal would be taken up at the hearing. The court responded that it had not thought it would be able to take up the various pretrial motions until during the trial, but the one-week postponement in the trial due to the snowstorm had given the court an opportunity to research and reflect upon the various motions. The district court continued: I wasn't trying to foreclose you, but having put the trial over for a week I have had the better part of the day to do the research and I'm happy I did because now I do have time for what I was going to do. If you have anything else that might affect the motion in limine my order will stand until you can show some reason why it shouldn't stand, and you have the rest of the week to do that. (Emphasis supplied.) At the previous hearing, the State had argued the matter fully and had nothing further it could present on the issues. The State has advised the witnesses, if called, would not have added any new facts to alter the ruling as to the motion in limine. The following day, February 9, 1983, the State filed a Notice of Interlocutory Appeal with the Douglas County District Court. The appeal was docketed with the Clerk of the Appellate Courts on Thursday, February 10, 1983. On the same day the appeal was filed, February 9, the State also filed two requests for transcripts. In its first request the State sought transcripts on the hearings held on February 4 and 8, 1983. In its second request the State sought transcripts on the preliminary hearing testimony of the prosecutrix and Detective Mike Hall. In its interlocutory appeal, pursuant to K.S.A. 22-3603, the State seeks appellate review of the district court's orders excluding evidence of the police investigation composite photograph (Identi-Kit), the photographic lineup identification, and the testimony of defendant's wife pertaining to her observation of university keys at the couple's residence. On Thursday, February 10, 1983, the trial judge learned of the State's interlocutory appeal through a radio news report. The court, on the same day, then directed both counsel to appear before it. The court made inquiry of the State as to whether it had, in fact, filed an interlocutory appeal. When the State responded in the affirmative, the court stated: Let me advise counsel that this case will be tried on Monday. There will be no interlocutory appeal. There has not yet even been a Jackson-Denno Hearing to appeal from. When I left the courtroom the other day you indicated to me you wanted to offer evidence and I told you I would hear it. If you get it in before trial, that is just fine. If you are not going to get it in until during the trial my order on the motion in limine stands, but you're not going to the Supreme Court until you have a Jackson-Denno because you don't have a final order to appeal from.  (Emphasis supplied.) Little would be gained by inclusion herein of a detailed recitation of what transpired during the balance of the February 10, 1983, conferences (there were two). It is obvious the district court was agitated over the State having filed a notice of interlocutory appeal and was confused regarding the nature of a Jackson-Denno proceeding. Further, the district court was operating on the belief the State could seek an appeal only on a question reserved pursuant to K.S.A. 22-3602( b )(3). Additionally, on February 10, 1983, the district court made statements to the effect its rulings entered two days previously were temporary, rather than final orders. Moreover, representations were made by the district court it could just cancel its previous orders. Without dwelling further on the February 10, 1983, conferences, we can understand why the State felt it had no alternative but to proceed with its pending interlocutory appeal. We also note the district court's proceedings on February 10, 1983, are apparently contrary to K.S.A. 22-3603 which explicitly provides further proceedings in the trial court shall be stayed pending determination of an interlocutory appeal. See also Supreme Court Rule 4.02(e), 232 Kan. cviii. In dismissing the State's appeal in this case because there were allegedly no final orders to appeal from, the Court of Appeals emphasized the oral orders of February 8, 1983, had not been journalized. In State v. Bohannon, 3 Kan. App.2d 448, 596 P.2d 190 (1979), the Court of Appeals stated: Oral orders which are appealable must, when entered, be on the record, and should expressly state whether the announcement alone is intended to constitute entry of the order or whether the trial court expects the order to be journalized and approved by the court before it is deemed to have been formally `entered.' 3 Kan. App.2d 448, Syl. ¶ 1. The two elements of Bohannon have been met in this case. First, the orders of suppression appeared on the record — a transcript was made of the February 8, 1983, hearing. Second, the district court advised the parties there was no need to journalize the orders as long as the litigants understood what they are because we have them clearly on the record, and I will have them in front of me here. It is clear from the record of the proceedings on February 8, 1983, the three rulings relative to exclusion of evidence: (1) were final orders; (2) substantially impaired the State's ability to prosecute the case (as previously held); and (3) are proper subjects for an interlocutory appeal by the State pursuant to K.S.A. 22-3603. Having disposed of the jurisdictional issues, we shall consider the substantive questions presented in this appeal. II. DID THE DISTRICT COURT ERR IN SUPPRESSING A COMPOSITE (IDENTI-KIT) OF DEFENDANT PREPARED BY A POLICE OFFICER AT THE DIRECTION OF THE PROSECUTRIX? The alleged attack upon Ms. G. occurred on May 12, 1981. The following day she was interviewed by Detective Donoho of the Lawrence Police Department for the purpose of assembling a composite (Identi-Kit) likeness of her assailant. The procedure utilized in assembling the composite was described in detail by Ms. G in her testimony at the preliminary hearing held herein. The Identi-Kit consisted of many transparent overlays each depicting a different facial characteristic or hair style. Detective Donoho initially presented Ms. G with a composite which the prosecutrix characterized as a Joe Average portrait. Ms. G was then asked what was wrong with it and overlays were added or deleted in accordance with her series of responses. This procedure took from fifteen to thirty minutes. A photograph was taken of the end product and has been designated State's Exhibit No. 9. Ms. G identified Exhibit No. 9 as accurately depicting the final Identi-Kit composite. Illustrative of Ms. G's testimony relative to the construction of the composite is the following excerpt from defense counsel's recross-examination of Ms. G at the preliminary hearing: Q. Did he get the face as round as you would have had it if you could have free hand drawn it? A. What I told him to do finally was to sketch it down to make it so the chin wasn't so pointed to get a shorter type looking face. Q. Was there anything else you tried to get him to do to change the drawing that he was unable to do with the materials that he had? A. No. I didn't ask for anything else. I couldn't remember it specifically enough to — I would say it just kind of looks wrong, looks right. Q. So the eyes then for instance are the closest representation that you could construct according to the materials that were available and the fact that you didn't see your assailant's face, is that correct? MR. HAMMEL [Assistant District Attorney]: Judge, I'm going to object to that. I don't believe she ever stated she didn't see her assailant's face. That's not in evidence. MR. HEEB: I think that is in evidence, Your Honor. THE COURT: I think it's a misstatement of facts. Objection is sustained. Q. (By Mr. Heeb) Concerning their observations that you did have of your assailant and the available choices of eyes, overlays, that is the closest that you could come up with, is that correct? A. Yeah, I think so. Q. Is the same true for the nose? A. Yeah, we didn't play with the nose too much. Q. Okay. And the mouth, is that true? A. Right. Q. But the shape of the face is not the way you would have had it, it's a modification based on materials that were available, is that correct? A. Yeah, I think so. The defendant's motion to suppress the photograph of the composite contended: 2. That the composite picture was not based on a description by the complaining witness; rather, Detective Donoho constructed a face and then modified it through replacement of various facial features which he chose in response to Ms. [G's] comments. 3. That Ms. [G] testified at the preliminary hearing that the [Identi-Kit] composite did not accurately depict her recollection of her alleged assailant. 4. That the composite picture produced by Detective Donoho is hearsay evidence and inadmissible; it was assembled by Detective Donoho based not on what he saw but on what was told to him by someone else; the composite picture has no standing as to the truth or accuracy of the matter contained in it. In sustaining defendant's motion to suppress the photograph of the composite, the district court stated: With regard to the Identi-Kit, the motion in limine will be granted as to presentation of the Identi-Kit picture except as might be appropriate for rebuttal. I suspect that is the way it was going to happen anyway, but I am satisfied after reading [42] ALR 3d 1217 that such an exhibit is properly excluded as hearsay in that it relies upon the operator's skill as well as what the victim says, and I repeat, it's not excluded as it might be appropriate for rebuttal. See Annot., Admissibility in Evidence of Composite Picture or Sketch Produced by Police to Identify Offender, 42 A.L.R.3d 1217. In State v. Childs, 198 Kan. 4, 422 P.2d 898 (1967), the defendant was convicted of two counts of first-degree robbery. The victims of the robberies were able to identify defendant in a police photographic lineup. In affirming the conviction, this court stated: This court has held the testimony of a witness as to the identity of an accused is admissible if based upon the accused's voice, features, or other distinguishing characteristics ( State v. Hill, 193 Kan. 512, 394 P.2d 106; State v. Nixon, 111 Kan. 601, 207 Pac. 854; State v. Herbert, 63 Kan. 516, 66 Pac. 235), including the extrajudicial identification of an accused in a police lineup ( Peterson v. State, 198 Kan. 26, 422 P.2d 567; State v. Hill, supra). Although the courts are somewhat divided as to the competency of evidence of extrajudicial identification, there is respectable authority holding that prior identification of an accused may be shown by the testimony of the identifying witness in corroboration of the testimony of the same witness identifying the accused at the trial. (20 Am. Jur., Evidence § 353; 22A C.J.S., Criminal Law § 725; Anno. 71 A.L.R.2d 449; 1 Wharton, Criminal Evidence §§ 181, 182 [12th ed. 1955]; 4 Wigmore, Evidence § 1130 [3d ed. 1940].) The rationale of many of the cases appears to be that evidence of former identification made under proper circumstances is impressed with such trustworthiness as to entitle it to consideration by the jury ( e.g., People v. Hurley, 151 Cal. App.2d 339, 311 P.2d 49; Basoff v. State, 208 Md. 643, 119 A.2d 917). 198 Kan. at 9-10 (Emphasis supplied.) Continuing: We think the reasoning adopted by the authorities favoring the admission into evidence of the extrajudicial identification of an accused is sound and should be applied where, as in the instant case, prior identification is made from photographs. 198 Kan. at 10. Different jurisdictions have varying views on the nature and admissibility of composite identification. People v. Rogers, 81 Ill.2d 571, 411 N.E.2d 223 (1980), which cites State v. Childs, 198 Kan. 4, contains an in-depth analysis of this area of the law. In Rogers defendant was convicted of armed robbery. At trial a photocopy of a composite (Identi-Kit) photograph was admitted into evidence to corroborate the identification testimony given by the prosecuting witness. On appeal the Illinois Court of Appeals reversed defendant's conviction upon the ground it was error for the trial court to have admitted the composite into evidence. People v. Rogers, 75 Ill. App.3d 866, 394 N.E.2d 813 (1979). The Illinois Supreme Court granted the State leave to appeal, pursuant to Rule 315, 73 Ill.2d 475, and reversed the ruling of the Illinois Court of Appeals, reinstating the defendant's conviction. As in the instant action, the victim of the crime assisted the police in making a composite image of his assailant. The victim also identified the defendant in a photographic lineup. At trial the State introduced a photocopy of the composite created and the defendant objected thereto. The complaining witness admitted, as here, he was not in total agreement with the sketch. 81 Ill.2d at 573-74. The police officer who assembled the composite testified to the description provided by the witness and the procedures employed in assembling the composite. 81 Ill.2d at 574. In reinstating defendant's conviction, the Illinois Supreme Court rejected the thesis that composite photographs were hearsay and therefore inadmissible, stating: An Identi-kit consists of several transparent overlays. On each overlay is a printed variation of a facial feature. The eyewitness selects the variation of each feature which most closely matches that of the offender. Since each overlay is numbered, the composite can be easily duplicated. (See Annot., 42 A.L.R.3d 1217, 1220 (1972).) The Identi-kit composite is an extrajudicial identification; that is, it is an identification made prior to or outside of the trial in which the evidence of the identification is sought to be introduced. (Annot. 71 A.L.R.2d 449, 452 (1960); Note, Admissibility of Extrajudicial Identifications, 32 Okla. L. Rev. 462, 462-63 (1979).) The admissibility of such evidence may be challenged on two grounds. First, it may be alleged that the surrounding circumstances under which the identification was obtained were unnecessarily suggestive. Then, on constitutional grounds, the extrajudicial identification evidence will be barred from use at trial. (See, e.g., Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951 (in-court identification must be free from taint of illegal lineup).) It is the second ground, concerning evidentiary rules, upon which the defendant claims that the trial court erred in admitting the Identi-kit composite sketch in our case. Citing People v. Turner (1968), 91 Ill. App.2d 436, and People v. Fair (1977), 45 Ill. App.3d 301, defendant asserts that the identification constituted impermissible hearsay. He also argues that the composite, admitted through the testimony of the prosecuting witness, was no more than a prior consistent statement which cannot be introduced to bolster the witness' testimony in the absence of impeachment. The State also premises its argument first on hearsay principles, stating that the extrajudicial identification should be admissible as substantive evidence of prior identification since the declarant was available for cross-examination at trial and the identity of the defendant was a critical issue in dispute. The State also asserts' that the prohibition against the admission of prior consistent statements is inapplicable in situations where identification evidence is involved. Several jurisdictions have addressed the issue concerning the propriety of permitting evidence of an extrajudicial identification in a trial where the identity of the accused is an issue. Some courts have allowed the prior identification to be admitted as corroboration testimony, stating that the evidence relates to the weight and sufficiency of the in-court identification rather than to its admissibility. ( State v. Childs (1967), 198 Kan. 4, 422 P.2d 898 (photograph identification); Judy v. State (1958), 218 Md. 168, 146 A.2d 29 (photograph).) Other courts hold the extrajudicial identification to be admissible as independent substantive evidence of identity. ( People v. Gould (1960), 54 Cal.2d 621, 254 P.2d 865, 7 Cal. Rptr. 273 (photograph identification).) Another court has ruled that although the Identi-kit composite itself was inadmissible, the preparing police officer could testify as to the operation of the Identi-kit. (Butler v. State (1970), 226 Ga. 56, 172 S.E.2d 399.) Other jurisdictions have held, pursuant to statute, that evidence of prior identification is permissible as either corroboration of impeached identification testimony ( State v. Lancaster (1971), 25 Ohio St.2d 83, 267 N.E.2d 291 (police artist sketch)) or as substantive proof of identity where the identifier is subject to cross-examination and the evidence is fair and reliable ( State v. Ginardi (1970), 111 N.J. Super. 435, 268 A.2d 534 (Identi-kit composite sketch)). For a list of States which have adopted evidence rules providing for the admissibility of prior identifications, see 11 Moore's Federal Practice, section 801.41 [4.-2], at VIII-40 (2d ed. 1976). On the other hand, several jurisdictions have held evidence of prior identification to be inadmissible hearsay and have refused its admission in evidence unless the evidence falls within an exception to the hearsay rule. See, e.g., People v. Coffey (1962), 11 N.Y.2d 142, 182 N.E.2d 92, 227 N.Y.S.2d 412 (police artist sketch); Commonwealth v. Rothlisberger (1962), 197 Pa. Super. 451, 178 A.2d 853 (artist sketch); Commonwealth v. McKenna (1969), 355 Mass. 313, 244 N.E.2d 560. From these cases it is apparent that the courts generally consider sketches and Identi-kit composites as out-of-court identifications and the use of them to be governed by the rules applicable to the admission of evidence concerning out-of-court identifications. The applications of these rules in the cases usually involve a discussion of the hearsay rule. It appears that no single facet of the law has been productive of as much confusion as has the application of the hearsay evidence rule. The varied treatment given evidence of pretrial identification in the cases discussed amply demonstrates this assertion. The definition of hearsay itself is deceptively simple and is generally accepted to be testimony of an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value upon the credibility of the out-of-court asserter. ( People v. Carpenter (1963), 28 Ill.2d 116, 121; McCormick, Evidence sec. 246, at 584 (2d ed. 1972).) The confusion arises, as is often the case, in the application of the definition. Often, a broad, sweeping generalization is made in the reported decisions and by attorneys that all extrajudicial statements made out of the presence of a defendant are hearsay and therefore not admissible. However, in many situations, testimony may be offered of an out-of-court assertion to prove the facts of the matter asserted, and yet the reason for the exclusion of hearsay evidence will be absent. We find the facts now before us to constitute such a situation. The reason for excluding such evidence is found in the last phrase of the definition stated above: `[A]nd resting for its value upon the credibility of the out-of-court asserter.' The basis for excluding evidence under the hearsay rule lies in the fact that an opportunity to ascertain the veracity of the testimony is absent (29 Am.Jur.2d, Evidence sec. 493, at 552 (1967)), and not that the evidence offered may technically fall within the definition of the term. Thus, the essential requirement of the testimonial offering is the opportunity for cross-examination of the party whose assertions are offered to prove the truth of the fact asserted. People v. Robinson (1978), 73 Ill.2d 192, 200; People v. Clark (1972), 52 Ill.2d 374, 389; People v. Cook (1965), 33 Ill.2d 363, 370; People v. Carpenter (1963), 28 Ill.2d 116, 121. This court, in the past, has approved the giving of testimony that the victim of a crime has identified the defendant from a photograph or from a lineup. ( People v. Cook (1965), 33 Ill.2d 363, 371; People v. Miller (1963), 27 Ill.2d 336; People v. Gray (1962), 24 Ill.2d 229; People v. Brown (1959), 16 Ill.2d 482.) Although in these cases the witness was permitted to testify as to his out-of-court identification as corroboration of his in-court identification, this accepted evidence of out-of-court statements was in no case admitted as substantive evidence, even though the one who made the statements is present in court and subject to cross-examination. See People v. Spicer (1979), 79 Ill.2d 173, 179; People v. Bailey (1975), 60 Ill.2d 37, 43; People v. Cook (1965), 33 Ill.2d 363, 371; People v. Moretti (1928), 330 Ill. 422, 424; People v. Scott (1921), 296 Ill. 268, 273. In People v. Clark (1972), 52 Ill.2d 374, 388-90, this court noted the general rule that although the witness may be present in court and subject to cross-examination, he may not testify as to statements he made out of court for the purpose of corroborating his testimony given at trial relative to the same subject, except to rebut a charge or inference that the witness is motivated to testify falsely or that his testimony is of recent fabrication. This general rule does not, however, apply to statements of identification. The justification for this exception is based on the notion that, by the time of trial, the witness' mind has become so conditioned that there is little likelihood that he would not identify the person in court. The exception has been explained thus: `The psychology of the situation is practically the same as when recent contrivance is alleged. To corroborate the witness, therefore, it is entirely proper    to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness' mind, he recognized and declared the present accused to be the person.' (Emphasis in original.) (4 Wigmore, Evidence sec. 1130, at 277 (Chadbourn rev. ed. 1972).) Although this exception in favor of identification testimony is widely acknowledged, it has not been applied by the courts in a uniform manner. See Annot., 71 A.L.R.2d 449 (1957). To resolve the uncertainty as to the law in this State concerning evidence of out-of-court identification, we set forth herein the rules that should govern the admissibility of such evidence. If a third person were to testify that he saw or heard A identify B as the person who committed the offense, that would obviously and clearly be hearsay testimony and would not be admissible. However, if A testifies that he previously identified B and his veracity is tested by cross-examination, the reason for excluding the third person's testimony has been removed. The third person should then be permitted to testify that he heard or saw A identify B because both A and the third person would be subject to cross-examination concerning the out-of-court identification. Evidence of such out-of-court identification by both A and the third person should be admissible but should be used only in corroboration of in-court identifications and not as substantive evidence. Before the third person is permitted to testify as to A's identification of B, A should first testify as to his out-of-court identification. In this case, Moake testified, under oath, as to his statement concerning the description of the robber which he gave to Detective Ashman. Moake also testified as to the authenticity of the photocopy of the Identi-kit composite sketch. The jury was able to observe Moake's demeanor, and, more importantly, Moake was subject to cross-examination and was, in fact, cross-examined. Under these facts alone, we would hold that the admission of the sketch did not constitute error. The additional fact that Detective Ashman testified at the trial supports our decision; the officer's testimony served to authenticate the photocopy and to establish the veracity of Moake's testimony. We therefore hold that the hearsay rule does not operate to bar the admission of the extrajudicial identification. As hereinbefore stated, the composite and testimony concerning the production thereof constituted extrajudicial statements of identification. We have long permitted the admission of authenticated prior identification evidence where the identifier is present at trial and available for cross-examination. (See, e.g., People v. Wilson (1953), 1 Ill.2d 178, 188-89, cert. denied (1954), 347 U.S. 928, 98 L.Ed. 1080, 74 S.Ct. 530; see generally McCormick, Evidence sec. 251, at 603 (2d ed. 1972); Comment, Hearsay Witnesses' Prior Statements, and Criminal Justice in Illinois, 1974 U. Ill. L.F. 675 (1974). In People v. Cook (1965), 33 Ill.2d 363, 371, we recognized the significance of identification evidence: `We have consistently approved and regarded as convincing evidence the fact that the victim of a crime has identified the defendant from a photograph or a police line-up.' We find equally convincing the evidence of a description given to the police shortly after the commission of the crime and the sketch produced therefrom. We therefore hold that the trial court did not err in its admission in evidence of the composite sketch. The identification evidence did not constitute impermissible hearsay evidence; the identifying witness Moake testified under oath and was subject to cross-examination as to his out-of-court statements. Furthermore, the evidence was not admitted as substantive evidence but as prior identification evidence to corroborate the prosecuting witness' in-court identification of the defendant. As such, it was properly admitted. We reject defendant's assertion that the discrepancies in the physical description Moake gave to the police shortly after the crime rendered the sketch unreliable. These matters did not concern the admissibility of the evidence, but, rather, concerned the credibility of Moake and the weight to be given the identification evidence. 81 Ill.2d at 574-81. We believe the rationale of the Illinois Supreme Court expressed in People v. Rogers, 81 Ill.2d 571, is sound and it is consistent with our holding in State v. Childs, 198 Kan. 4. The composite was made at the direction of Ms. G and she fully identified the photograph as an accurate depiction of the completed Identi-Kit composite. There was nothing so unduly suggestive relative to the creation of the Identi-Kit composite, as to require its suppression on constitutional grounds. As for the evidentiary grounds on which exclusion is sought herein, an Identi-Kit composite is not inadmissible hearsay. Rather than substantive evidence, it is prior identification evidence introduced to corroborate the witness' in-court identification of the accused. The means or manner in which the extrajudicial identification is made relates to the weight and sufficiency of the evidence rather than its admissibility. Following People v. Rogers, 81 Ill.2d 571; State v. Childs, 198 Kan. 4. We conclude the district court erred in excluding the photograph of the Identi-Kit composite. III. DID THE DISTRICT COURT ERR IN GRANTING DEFENDANT'S MOTION TO SUPPRESS THE ALLEGED VICTIM'S PRETRIAL PHOTOGRAPHIC LINEUP IDENTIFICATION BECAUSE THE PROCEDURES EMPLOYED BY THE POLICE IN THE LINEUP WERE SO IMPERMISSIBLY SUGGESTIVE AS TO GIVE RISE TO A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION? On July 16, 1981, slightly more than two months after the alleged rape and sodomy, Ms. G went to the Douglas County Judicial and Law Enforcement Center to view a photographic lineup. The photographs were of eight black males who were quite similar in appearance. In fact, when first shown the photographs Ms. G commented to the effect, You're not making it easy. After several minutes of studying the photographs, Ms. G picked out defendant's photograph and said she thought that man was her attacker, but she was not one hundred percent sure. Ms. G apparently knew there was a man in custody on a rape charge who had the missing keys. At the preliminary hearing held in late July, 1981, Ms. G was asked, on direct examination by the State, about the attack upon her and then asked if she could identify her attacker. Although what transpired is set forth earlier in this opinion, we repeat the following excerpt from the preliminary hearing transcript for convenience: Q. Could you describe or give the description of what the person looked like? A. Well, he was — he just looked like a medium height man, medium weight, muscular, kind of trim, not fat and not thin. A real full round face was one thing that I noticed. Q. Okay. I'd like you to look around the courtroom and I'll ask you if the person that's in the courtroom that put you in the car that night at knifepoint. MR. HEEB: Objection, Your Honor, she stated that she never did see the individual and never saw the individual's face. There's no — there's no background or foundation to believe that she can make any kind of an identification. THE COURT: It's still a proper question. Objection is overruled. A. Well I never saw a good full front view, but I do think it's him (indicating). Q. Okay. You mean the person sitting over here in the gray-green overalls? A. Right. Q. Okay. Let the record reflect that the witness has identified the defendant. Why do you feel that it was him? What is it about him that makes you feel that way? A. Well, it looks like him. Like I told you that if you put me in a room with fifty people I probably wouldn't be able to pick him out. Q. Okay. A. Out of a crowd like that. Q. Okay. MR. HEEB: Your Honor, I move to strike that identification. It's obviously based on an in-court situation where there's a defendant sitting in jail garb and she picked him out and says he looks like the man, but she's — by her own admission couldn't pick the man out of a room of fifty people. That's improper identification and I move to strike that testimony. THE COURT: I think the identification is subject to cross-examination. It's a tentative identification and you can ask all those questions, but it's still a proper question and the response was proper. Objection is overruled. (Emphasis supplied.) On cross-examination defense counsel inquired of Ms. G as follows: Q. You've testified that you would not be able to identify your assailant in a room of fifty people, is that correct? A. Yeah — well, I doubt that I would be able to. A year and a half after the preliminary hearing, more than three months after this court's opinion in Galloway I, 232 Kan. 87, and less than one week before trial was scheduled to commence, defendant filed a motion to suppress the State's photographic lineup evidence on the basis it was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. In granting the motion, the district court stated: As to the in-court identification and photo lineup. I read again very carefully the quoted testimony from the transcript. It appears to me that the witness has said under oath that `If you put me in a room with fifty people I couldn't pick him out'. Apparently she was shown a lineup or photographic lineup of six people knowing at the time that there was a man in custody, and I gather knowing that something of hers was found with this man. In other words the odds were changed from one to fifty, to one to six. The point I would make is if she can't pick one out of fifty it's not fair to make the odds one out of six in order to make an identification or to rehabilitate her testimony. She has apparently said, `He looks like the man'. She could take the stand and she can say that. But you can't go any further with regard to the photographic lineup because she also made it clear although `He looks like the man' she `Couldn't pick him out of a room with fifty people in it'. So the motion in limine on that item is granted. MR. HEEB: I'm sorry. I didn't quite understand. Is there to be no evidence concerning the photo lineup? THE COURT: That's right.  (Emphasis supplied.) The issue before the trial court was whether the photographic lineup was impermissibly suggestive. It is difficult to see how the witness' statement relative to her difficulty with in-court identification occurring at the subsequent preliminary hearing has any relevance to the issue. In Kansas a pretrial identification of a defendant by use of photographs will be suppressed only if the identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Chiles, 226 Kan. 140, 143-44, 595 P.2d 1130 (1979); State v. Wilson, 221 Kan. 92, 95, 558 P.2d 141 (1976); State v. Mitchell, 220 Kan. 700, 556 P.2d 874 (1976); State v. Nesmith, 220 Kan. 146, 551 P.2d 896 (1976). On cross-examination at preliminary hearing, Ms. G testified relative to the photographic lineup as follows: Q. At the time of the picture line-up had you been told by any police officers that items believed to have belonged to you, had been recovered? A. No, I didn't — Q. Were you told that the police had a suspect in the case? A. Not in this case. For the other rape incident they said that there was one, a suspect in custody for that. Q. Okay. What did the officer say to you about that other case and how it related to your case? A. That they found the keys, that they traced them back to me after having caught a man for the other rape and that's how I was connected with it. Q. Did they suggest to you that the suspect's picture was among those pictures shown to you in the picture line-up? A. I guess they never said that. I assumed it would be, but they never told me. Q. What officer told you about the suspect and the keys in the other case? A. Mike Hall, only after I asked him. Q. Only after you asked him? A. Yeah. Q. Okay. And it's your testimony on direct examination that you were told to look at these pictures and make your best guess as to which picture was of the individual who attacked you, is that your testimony? A. Well, the way he put it was look at the pictures and see if you can identify the man who attacked you and if you're not sure, if you can't remember, that's fine. If you can pick him out for sure that's fine.  (Emphasis supplied.) The police officer present at the photographic lineup, Detective Mike Hall, corroborated Ms. G's testimony relative to the photographic identification. In State v. Ponds, 227 Kan. 627, 608 P.2d 946 (1980), this court, in affirming a conviction for aggravated robbery, was confronted with an allegation of suggestive, pretrial photographic identification. In Ponds the detective in charge of the investigation phoned the victim and informed her the police had arrested the man they believed to be the robber. 227 Kan. at 628. The detective then went to the victim's home and showed seven photographs to the prosecutrix. Two of the photographs were of the defendant, one recent and the other seven years old. The detective, in presenting the photographs asked: Which one of these men is the one that robbed you? Can you identify any of them as being the one that robbed you? 227 Kan. at 628. On appeal defendant contended the trial court erred in refusing to suppress the prosecutrix's photographic and subsequent court-room identification. The trial court ruled the photographic lineup identification was admissible and refused to suppress any future in-court identification. 227 Kan. at 629. The trial court did suppress the prosecutrix's preliminary hearing identification on other grounds. 227 Kan. at 629. Defendant argued the police procedures, especially the comments of the detective, rendered the photographic identification so impermissibly suggestive as to create a substantial likelihood of misidentification. 227 Kan. at 628. In rejecting defendant's appeal this court held: We have recognized the potential for impermissibly suggestive pretrial identifications. In each case, the totality of circumstances is analyzed to determine whether an identification is so impermissibly suggestive that it gives rise to a very substantial likelihood of irreparable misidentification. See State v. Baker, 227 Kan. 377, 607 P.2d 61 (1980); State v. Reed, 226 Kan. 519, 601 P.2d 1125 (1979); State v. Nesmith, 220 Kan. 146, 551 P.2d 896 (1976). 227 Kan. at 629. Additionally, the court found no merit in defendant's contention the photographic lineup was rendered impermissibly suggestive by the detective's comment the police had a person in custody who they believed had robbed the victim. There is nothing unusual or suggestive in a statement that the police have arrested a suspect or in the request to pick `the one that robbed you.' Detective Brown's confirmation that Ms. Winters' choice was also the police suspect was not suggestive since it followed the photo identification. 227 Kan. at 630. We conclude there was no competent evidence presented upon which the district court could have determined the photographic identification was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. The order of the district court excluding evidence of the photographic lineup is reversed. IV. DID THE DISTRICT COURT ERR IN EXCLUDING EVIDENCE OF OBSERVATION BY DEFENDANT'S WIFE OF THE KEYS ON THE BASIS OF MARITAL PRIVILEGE? K.S.A. 60-423( b ) provides: ( b ) An accused in a criminal action has a privilege to prevent his or her spouse from testifying in such action with respect to any confidential communication had or made between them while they were husband and wife, excepting only (1) in an action in which the accused is charged with (i) a crime involving the marriage relation, or (ii) a crime against the person or property of the other spouse or the child of either spouse, or (iii) a desertion of the other spouse or a child of either spouse, or (2) as to the communication, in an action in which the accused offers evidence of a communication between himself or herself and his or her spouse. (Emphasis supplied.) K.S.A. 60-428( a ) provides: ( a ) General rule. Subject to K.S.A. 60-437 and except as otherwise provided in subsections ( b ) and ( c ) of this section, a spouse who transmitted to the other the information which constitutes the communication, has a privilege during the marital relationship which he or she may claim whether or not a party to the action, to refuse to disclose and to prevent the other from disclosing communications found by the judge to have been had or made in confidence between them while husband and wife. The other spouse or either his or her guardian or conservator may claim the privilege on behalf of the spouse having the privilege. (Emphasis supplied.) On January 27, 1983, the State filed a motion with the district court in which the State sought permission to inquire of defendant's wife relative to her observation of certain University of Kansas keys recovered at defendant's residence by Detective Hall while executing a search warrant issued in connection with another crime. During the police investigation, Mrs. Galloway purportedly made a comment to Detective Hall concerning her observance of the keys at defendant's residence. Allegedly she had observed the keys over a two to three month period following the alleged rape and sodomy of the prosecutrix. Detective Hall had found the keys in the back of a nightstand drawer which was full of other material. The nightstand was located in a bedroom at the marital residence. The district court held that no evidence could be introduced relative to the wife's observation of the keys, based on marital privilege. Marital privilege is thoroughly discussed in State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984). In Newman we held: The statutory marital privilege between husband and wife does not extend to all observations of the acts of one spouse by the other. The marital privilege is limited to spoken or written statements or nonverbal signs or gestures seeking to transmit information from one spouse to another. Syl. ¶ 3. The wife's alleged observation of the keys in the back of a crowded drawer lacks any indicia of a communication. The location of the keys would support an inference of intended concealment and at least establish no intention to transmit or repose confidential information in the wife. The observation alleged herein is clearly outside the ambit of marital privilege. For the reasons set forth above, the judgment of the Court of Appeals dismissing the appeal is reversed. The judgment of the district court excluding evidence is reversed and the case is remanded for further proceedings.",jurisdiction
+537,2632547,1,4,"Based on the foregoing, we affirm the circuit court's March 10, 2003 Order.",conclusion
+538,3135230,2,3,"Defendant next argues the evidence was insufficient to prove him guilty beyond a reasonable doubt. When a court reviews the sufficiency of the evidence, it must ask “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.” (Emphasis in original.) Jackson v. Virginia , 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). We have adopted the Jackson formulation of the standard of review. People v. Collins , 106 Ill. 2d 237, 261 (1985). It applies in all criminal cases, regardless of the nature of the evidence. People v. Pollock , 202 Ill. 2d 189, 217 (2002). In Ashcroft v. Free Speech Coalition , the Supreme Court invalidated a federal statute making it a crime to possess a picture “that  appears to be, of a minor engaging in sexually explicit conduct” because it impermissibly criminalized virtual child pornography, i.e. , realistic pornographic pictures generated entirely by computer without the use of real children. Ashcroft v. Free Speech Coalition , 535 U.S. 234, 256, 152 L. Ed. 2d 403, 425, 122 S. Ct. 1389, 1405 (2002) (invalidating 18 U.S.C. §2256(8)(B) (2000)). Applying Ashcroft , we invalidated the definition of “child” in the section of the Criminal Code that prohibits child pornography because the definition included virtual images that only appear to depict a real child. People v. Alexander , 204 Ill. 2d 472, 482-83 (2003) (invalidating section 11–20.1(f)(7) of the Criminal Code (720 ILCS 5/11–20.1(f)(7) (West Supp. 2001))). We further held the rest of the child pornography statute was severable from the statutory definition of “child.” Alexander , 204 Ill. 2d at 485. We finally held that, once severed, the statute only applies to pornographic pictures of actual children because the plain meaning of the word “child” includes only actual children. Alexander , 204 Ill. 2d at 485-86. Thus, the parties correctly agree that, as to each count, the State was required to prove that the picture in question depicts a real child and is not merely a virtual image. Defendant contends the State failed to prove that element beyond a reasonable doubt for any of the counts. The sole evidence that the pictures admitted at trial depicted real children was the pictures themselves. Defendant argues that, without other evidence, the most a trier of fact could reasonably conclude beyond a reasonable doubt is that the pictures appear to depict real children, not that they do depict real children. Put another way, defendant contends that the pictures cannot stand alone as proof; rather, some further evidence, such as expert opinion, was needed to bridge the logical gap between how a picture appears and what it actually is. All of the circuits of the federal court of appeals to consider the question have held pictures may stand alone as proof that real children are depicted. See United States v. Farrelly , 389 F.3d 649, 653-55 (6th Cir. 2004) (and cases cited therein). In Farrelly , the prosecution presented expert testimony regarding the age of the children in the pictures, but the expert admitted she was not qualified to opine whether the images were of actual children or had been generated by computer. The defendant argued on appeal that, absent testimony of an expert qualified to address the possibility the pictures were virtual images, he was not proven guilty beyond a reasonable doubt. In rejecting this argument, the court relied on United States v. Kimler , 335 F.3d 1132, 1142 (10th Cir. 2003), which held that “[j]uries are still capable of distinguishing between real and virtual images.” Kimler , in turn, relies on a passage from Ashcroft , which rejects the hypothesis that virtual images are identical to real images. We will discuss that passage from Ashcroft in some detail below. Defendant argues that the question cannot be decided by consulting precedent, because the correct answer depends on the state of computer technology at the relevant time, and the state of computer technology is constantly changing. A defendant may be denied relief to which he is entitled if courts consider only the state of the law and not the state of technology . We do not understand defendant to mean precedent is completely useless, only that it cannot be the sole basis for decision. Clearly, precedent may be instructive even when it is not dispositive. Subject to that caveat , we agree with defendant’s argument. Accordingly, we will consider defendant’s argument that the pictures introduced against him could not stand alone as proof that they are pictures of real children, even though the same argument has been consistently rejected in other jurisdictions. In many instances, a particular kind of evidence may be sufficient, standing alone, to prove an element of a crime. For example, jurors may use their own reason and experience to decide whether to accept eyewitness testimony as the truth about what happened, without the aid of expert opinion regarding the reliability of eyewitnesses. People v. Enis , 139 Ill. 2d 264, 289-90 (1990). In other instances, evidence cannot stand alone. For example, the prosecution could not prove a substance is marijuana simply by introducing the substance and asking the trier of fact to apply its reason and experience. See People v. Park , 72 Ill. 2d 203, 209-11 (1978) (holding inadmissible a witness’ opinion that a substance was marijuana because the opinion was based only on four years’ experience as a police officer and not chemical or microscopic analysis). At oral argument, defendant suggested the pictures in this case cannot stand alone, just as a substance admitted in the typical drug case cannot. He suggested that, absent evidence specifically identifying the children in the pictures, expert testimony was required to prove they were pictures of real children. Defendant is certainly correct that expert testimony might have aided the trier of fact. It could conceivably have shown whether realistic virtual child pornography existed at the relevant time and, if it did, whether the pictures introduced against defendant were virtual images. However, the comparison between this case and a drug prosecution, though instructive, does not support defendant’s claim. In Park , we relied on statistics from the Wisconsin State Crime Laboratory showing that 1 out of 7 samples turned in as marijuana proved to be something else. We concluded that nonexperts are unacceptably prone to mistake other plants for marijuana. Park , 72 Ill. 2d at 208. By comparison, in this case we find little or no reason to fear that realistic virtual child pornography exists and was so readily available as to create an unacceptable risk that the trial judge, unaided by expert testimony, mistook legal computer-generated images for illegal child pornography. In taking the contrary view, the appellate court dissent stressed the fact that Congress found, prior to the beginning of this case, that highly realistic virtual child pornography exists. 346 Ill. App. 3d at 499, (Slater, J., concurring in part and dissenting in part), citing Alexander , 204 Ill. 2d at 477-78, quoting 18 U.S.C. §2251, Congressional Findings, Note (5) (2000). We give Congress’ finding due consideration. However, we find the reasoning of Ashcroft to be persuasive proof that realistic virtual images are not widely available. See People v. Normand , No. 97984, slip op. at 11 (June 3, 2005). The Ashcroft Court, in pertinent part, reasoned as follows: “The Government next argues that its objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well. Virtual images, the Government contends, are indistinguishable from real ones; they are part of the same market and are often exchanged. In this way, it is said, virtual images promote the trafficking in works produced through the exploitation of real children. The hypothesis is somewhat implausible. If virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice. ” (Emphasis added.) Ashcroft , 535 U.S. at 254, 152 L. Ed. 2d at 423, 122 S. Ct. at 1403-04. The italicized portion applies directly to defendant’s argument that, for all we know, there are virtual images that are indistinguishable from real ones. Moreover, the italicized passage is clearly correct. Because there is obviously substantial demand for illegal child pornography, people would be all too willing to produce a legal substitute were it readily available. The “market” for illegal child pornography would quickly be flooded with the legal substitute. Furthermore, the comparison between child pornography and illegal drugs implies a further conclusion, not expressly stated in Ashcroft . If a legal substance that does what marijuana or cocaine do ever became available, it would obviously change the drug trade dramatically. Such a change could hardly go unnoticed, at least in legal and law enforcement circles. The same applies to child pornography. If a legal substitute–realistic virtual pornography–became available, it would dramatically affect the “market” for child pornography and would surely not go unnoticed. See Normand , slip op. at 11. Therefore, because we are not aware of it now, it is highly unlikely that realistic virtual child pornography was available on the day defendant was arrested some 3½ years ago. The prosecution bears the burden of proving each and every element of the crime charged beyond a reasonable doubt. Maggette , 195 Ill. 2d at 353. However, mere possibilities or speculation are insufficient to raise reasonable doubt. See People v. Evans , 209 Ill. 2d 194, 211-12 (2004). Defendant’s suggestion that the pictures introduced against him at trial may in fact be virtual images relies on the congressional finding, made prior to his arrest, that realistic virtual images were available. He also argues, alternatively, that we simply do not know whether such images were available and therefore the prosecution had the burden of proving that they were not. We disagree. Our analysis in the previous paragraph shows that the congressional finding was likely incorrect at the relevant time, and that defendant does nothing more than raise a bare possibility that is insufficient to overturn the verdict in this case. In sum, we conclude the trier of fact in this case could distinguish real from virtual pictures beyond a reasonable doubt simply by viewing the pictures. After reviewing the pictures ourselves, we hold a trier of fact could reasonably find they depict real children. Defendant next argues the State failed to prove beyond a reasonable doubt that he intended to disseminate the pictures he possessed. He argues, first, that all of the evidence, including his admission to police that he exchanged child pornography over the Internet, at most proves past dissemination, not a present intent to disseminate. Defendant points out he did not have telephone service at the time of his arrest, which, he suggests, tends to show he had no ability to access the Internet, and therefore no present intent to disseminate. We disagree. Defendant’s admission he would exchange child pornography on the Internet using his computer, on its face, describes his habit or practice. It was not couched as something he used to do but had given up. It supports a reasonable inference that he intended to continue exchanging child pornography on the Internet when he could. Furthermore, defendant had his computer repaired immediately before his arrest, which implies he intended to continue using it. The computer contained software for Earth Link, which is an Internet Service Provider (ISP). Morris testified Earth Link was not defendant’s ISP, but that an unidentified “friend” of defendant had an account with Earth Link. Morris testified the friend told him defendant used the friend’s Internet service. The fact defendant had no phone service therefore does little or nothing to defeat the inference that he intended to continue his admitted practice of exchanging child pornography on the Internet. Defendant also argues his admission to police that he exchanged pornography on the Internet was insufficiently corroborated to establish the corpus delicti of the crime of possession with intent to disseminate. A criminal conviction may not be based solely on an uncorroborated confession. People v. Willingham , 89 Ill. 2d 352, 358-59 (1982). There must be some evidence, independent of the confession, tending to show the crime did occur. Willingham , 89 Ill. 2d at 358. However, there is no requirement that the corroborating evidence prove the existence of the crime beyond a reasonable doubt. Willingham , 89 Ill. 2d at 359. Rather, if the defendant’s confession is corroborated, then the confession and the corroboration may be considered together to determine whether the crime, and the fact the defendant committed it, have been proven beyond a reasonable doubt. Willingham , 89 Ill. 2d at 360. In this case there is ample corroboration of defendant’s admission that he exchanged child pornography over the Internet. The computer containing Earth Link software, Morris’ testimony that defendant’s friend told him that defendant accessed the Internet through the friend’s Earth Link account, and the numerous digital pictures on the disks discovered in defendant’s home all corroborate defendant’s admission. In sum, the prosecution introduced sufficient evidence to prove, for each of the three counts on which defendant was convicted, that defendant possessed a pornographic picture of a real child with the intent to disseminate.",sufficiency of the evidence
+539,1328046,1,4,"Accordingly, for the reasons set forth above, the final order of the Circuit Court of Kanawha County entered on December 5, 2002, is affirmed. Affirmed.",conclusion
+540,4361966,1,3,"[2] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.6 The threshold issue is whether the special prosecutor has appealed from a final, appealable order. The parties point out that this court has, on three prior occasions, exercised appellate review over a district court order which concerned the release of grand jury documents.7 However, our prior cases did not discuss a basis for appellate jurisdiction, and each case occurred prior to the passage of L.B. 1000 in 2016, which enacted § 29-1407.01(2)(b), the provision which prompted the court’s action. This appeal therefore raises the novel issue of whether this court has appellate jurisdiction over a district court order which makes a grand jury transcript available for public review under the circumstances described within § 29-1407.01(2)(b). Our inquiry focuses on 5 Fidler v. Life Care Centers of America, 301 Neb. 724, 919 N.W.2d 903 (2018). 6 State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018). 7 See, In re Grand Jury of Lancaster Cty., 269 Neb. 436, 693 N.W.2d 285 (2005); In re Grand Jury of Douglas Cty., 263 Neb. 981, 644 N.W.2d 858 (2002); In re Grand Jury of Douglas Cty., 244 Neb. 798, 509 N.W.2d 212 (1993). - 133 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE GRAND JURY OF DOUGLAS CTY. Cite as 302 Neb. 128 whether the order overruling the special prosecutor’s motion in opposition to public disclosure of the grand jury transcript is a final, appealable order. [3] Appellate jurisdiction turns on whether the order was a final order under Neb. Rev. Stat. § 25-1902 (Reissue 2016). An order is final for purposes of appeal under § 25-1902 if it affects a substantial right and (1) determines the action and prevents a judgment, (2) is made during a special proceeding, or (3) is made on summary application in an action after judgment is rendered.8 As a matter of first impression, we conclude that a hearing on a motion concerning the public disclosure of grand jury documents under § 29-1407.01(2)(b) is a special proceeding. [4,5] Special proceedings include every special civil statutory remedy not encompassed in chapter 25 of the Nebraska Revised Statutes which is not in itself an action.9 An action is any proceeding in a court by which a party prosecutes another for enforcement, protection, or determination of a right or the redress or prevention of a wrong involving and requiring the pleadings, process, and procedure provided by the statute and ending in a final judgment.10 Every other legal proceeding by which a remedy is sought by original application to a court is a special proceeding.11 Where the law confers a right, and authorizes a special application to a court to enforce it, the proceeding is special, within the ordinary meaning of the term “special proceeding.”12 Examples of special proceedings include juvenile court proceedings, probate actions, and workers’ compensation 8 Fidler, supra note 5. 9 See, In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006); In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006). 10 Id. 11 In re Interest of D.I., 281 Neb. 917, 799 N.W.2d 664 (2011). 12 Id.; State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980). - 134 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE GRAND JURY OF DOUGLAS CTY. Cite as 302 Neb. 128 ­cases.13 We have held that various proceedings under chapter 29 of the Nebraska Revised Statutes constitute special proceedings affecting substantial rights. Examples of orders made in special proceedings under chapter 29 include orders overruling a motion for discharge based on a violation of speedy trial rights, orders finding a defendant not competent to stand trial, and orders on an application for writ of habeas corpus.14 We find that an order regarding the public disclosure of grand jury documents pursuant to § 29-1407.01(2)(b) is made during a special proceeding. The special prosecutor’s motion was not itself an action. The motion was filed within a grand jury proceeding, which involves a probable cause determination and does not result in a final determination of rights between parties. Further, § 29-1407.01(2)(b) concerns the civil statutory remedy of making publicly available information regarding an in-custody death, a remedy which is not encompassed in chapter 25 of the Nebraska Revised Statutes. [6] We note that while the special proceeding in this case was the hearing on the special prosecutor’s motion, § 29-1407.01(2)(b) and its surrounding statutes do not explicitly afford a party the right to file a motion, and there is no explicit requirement that the parties be heard prior to a court’s taking action to make the records public. Here, the court interpreted § 29-1407.01(2)(b) and made the grand jury transcript and exhibits publicly available on its own initiative. Thereafter, the special prosecutor filed a motion to “alter and/or amend” the court’s order, the media filed a motion to release the grand jury transcript and exhibits, and one of the police officers filed a motion for a protective order and a motion to quash. Even though these motions are not explicitly authorized by statute, we find that the district court had jurisdiction over the motions and properly considered them, because the motions 13 See Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007). 14 See State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998). - 135 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE GRAND JURY OF DOUGLAS CTY. Cite as 302 Neb. 128 clearly pertained to the court’s jurisdiction over the disclosure of grand jury records under § 29-1407.01(2)(b). A court has jurisdiction to issue orders on motions pertaining to incidental matters within the scope of the matter over which the court has jurisdiction.15 Once the parties filed motions regarding § 29-1407.01(2)(b) which requested a civil remedy, they initiated a special proceeding. [7] However, the fact that the order was made during a special proceeding does not end our inquiry. In a special proceeding, an order is final and appealable if it affects a substantial right of the aggrieved party.16 The parties have not demonstrated that a substantial right has been affected under the circumstances of this case. [8,9] Numerous factors determine whether an order affects a substantial right for purposes of appeal. The inquiry focuses on whether the right at issue is substantial and whether the court’s order has a substantial impact on that right.17 Whether an order affects a substantial right depends on “‘“whether it affects with finality the rights of the parties in the subject matter.”’”18 It also depends on whether the right could otherwise effectively be vindicated.19 An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review.20 The special prosecutor argues the order affected the State’s rights by compromising the prosecutions of the police officers. The special prosecutor argues that releasing the transcript of the grand jury proceedings undermines the testimony of the 15 Coble, supra note 6; State v. McNerny, 239 Neb. 887, 479 N.W.2d 454 (1992). 16 City of Lincoln v. Twin Platte NRD, 250 Neb. 452, 551 N.W.2d 6 (1996). 17 Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016), citing State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015). 18 Id. at 581, 879 N.W.2d at 33, quoting Jackson, supra note 17. 19 See id., citing Jackson, supra note 17. 20 Id. - 136 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE GRAND JURY OF DOUGLAS CTY. Cite as 302 Neb. 128 witnesses and could make the witnesses unwilling to testify in the future. In addition, the special prosecutor argues that release of the transcript will generate pretrial publicity that will impede the State’s ability to seat an impartial jury. There are many reasons why the special prosecutor has not shown that the order affected a substantial right of the State. First, the special prosecutor conceded that these concerns are for the Legislature to address, and not this court. Second, the rights asserted do not relate to the grand jury that is the subject of this case, but, rather, go to the question of whether a substantial right of the parties is affected in a future prosecution.21 Third, the arguments do not account for the tailored manner in which the court allowed for public disclosure of the transcript. The order required interested members of the public to check out the materials from the clerk of court and complete their review at the court within a reasonable period of time, and the court prohibited dissemination of the materials. Fourth, there is no concrete set of facts in our record that would establish good cause to not have the information be released to the media. For example, there has been no showing that the media coverage would not be factual, as opposed to invidious or inflammatory.22 Fifth, the State has already completed the first prosecution, which was scheduled to last twice as long as the second prosecution and therefore would involve more evidence than the second prosecution. The testimony and exhibits concerning Bearheels’ death have been made public independent of the court’s order. No other party has shown that the order affected a substantial right. The media argue the substantial right at issue is the public’s right to view the transcript and exhibits from the grand jury proceeding, a right expressly provided by § 29-1407.01(2)(b). However, the court’s order upheld this right; the media were not aggrieved by the order. We note 21 See Fidler, supra note 5. 22 See State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). - 137 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE GRAND JURY OF DOUGLAS CTY. Cite as 302 Neb. 128 the court interpreted the phrase “available for public review” within § 29-1407.01(2)(b) to not include dissemination of the records. Assuming for the sake of argument that the court’s tailored release of the records was inconsistent with § 29-1407.01(2)(b), the media did not cross-appeal from the court’s order and did not show that the order interfered with the public’s right to transparency. In addition, if the grand jury court failed to comply with § 29-1407.01(2)(b), an aggrieved party could seek relief through a mandamus action rather than through an appeal. Lastly, one of the police officers who was indicted filed a motion for a protective order and a motion to quash before the grand jury court, but did not appeal from the court’s order. It would seem that a defendant in a pending criminal prosecution would be the most natural party to demonstrate that the release of grand jury documents affects a substantial right. The parties noted in their arguments that § 29-1407.01(2)(b) does not affirmatively require that the records be made public prior to the conclusion of a criminal prosecution following an indictment. Therefore, where the grand jury returns a true bill and the court proceeds to make grand jury records publicly available under § 29-1407.01(2)(b), we see no reason why a party in a subsequent prosecution cannot move for a protective order. Likewise, we see no reason why a grand jury court or a trial court proceeding over the criminal prosecutions cannot consider a motion for protective order and, upon good cause shown, grant relief consistent with a party’s right to a fair trial while still adhering to § 29-1407.01(2)(b).",analysis
+541,2598113,1,2,"[¶ 3] The appellant is employed by the above-mentioned Department. On April 1, 2005, he wrote a letter to his Division Administrator seeking a job reclassification and salary increase. Having not received a satisfactory response, the appellant on September 2, 2005, wrote to the Internal Services Supervisor of his division, stating that he was filing a grievance. The Internal Services Supervisor responded on September 8, 2005, informing the appellant that his request had been forwarded to the Department's Human Resources Division, and that his salary would not be adjusted because it is within the fair and equitable range for the position classification . . . on the 2004 Monthly Compensation table that is currently in use. The Internal Services Supervisor's response went on to inform the appellant that [i]f this decision is unsatisfactory to you, you may present the grievance in writing to the agency head pursuant to the State of Wyoming Personnel Rules Chapter 5(c). [¶ 4] On September 16, 2005, the appellant submitted a written grievance to the Department Director, pursuant to Chapter 12, Section 5(c) of the Personnel Rules. In his grievance, the appellant presented his current salary and classification status, compared them to certain benchmark minimum and average salaries, and requested that his monthly salary be raised to $4,619. In a letter to the Director ten days later, the appellant thanked the Director for meeting with him the previous week to discuss the grievance, and reiterated the particular salary increase requested. [¶ 5] Apparently receiving no response to his meeting with the Director, or to his follow-up letter, the appellant wrote to the Department's Human Resources Administrator on October 7, 2005, requesting that a grievance committee be established pursuant to Chapter 12, Section 5(e) of the Personnel Rules. In a letter dated October 12, 2005, the Human Resources Administrator denied the appellant's request for a grievance committee. The appellant then petitioned the district court for review of that action. This appeal followed the district court's ruling upholding the Department's decision.",facts
+542,2216919,1,3,"
+Is appellant a retailer maintaining a place of business in the State of South Dakota as defined by SDCL 10-46-1(7) and SDCL 10-46-20?
+Does the State's imposition of liability for the collection of a use tax upon appellant violate the due process clause of the Fourteenth Amendment to the United States Constitution?",issues
+543,1427569,1,2,"This is the second Nevada action involving these parties and facts. In the original action, Sugarless filed a complaint alleging that appellant Donald Sawyer (Sawyer), a California resident doing business as the Toppington Group, breached an oral agreement to provide financing for Sugarless in exchange for an interest in the company. Out of concern that Sawyer would attempt to avoid service of process, Sugarless engaged California counsel and instructed counsel to take extra precautions to effect valid service of process upon Sawyer. California counsel instructed his secretary to put the summons and complaint in a sealed manila envelope [1] and give the messenger service instructions to have two persons present when Sawyer was served. The record contains affidavits from counsel's secretary that she placed the summons and complaint in the envelope, sealed it, and then gave it to the messenger with instructions and Sawyer's business address. The process server and the witness went to Sawyer's office and delivered the sealed manila envelope to a man who was allegedly identified as Sawyer. No mention was made to this individual that he was being served or that the envelope contained legal papers. Delivery was made like any of the myriad, mundane deliveries which occur in the daily course of business. The server later testified that he thought the service procedure was unusual and admitted that although he was told that the envelope he delivered contained a summons and complaint, he did not personally know what was in the manila envelope he handed to the individual who supposedly was Sawyer. Sawyer subsequently failed to answer or appear and Sugarless obtained a default judgment against Sawyer for $495,000.00. Six months after default was taken, Sawyer received the notice of default. Sawyer diligently but unsuccessfully attempted to have the matter removed to federal court and the default judgment set aside. [2] After these attempts to invoke the more generous federal default provisions failed, and fearing that further delay might give rise to equitable defenses, Sawyer instituted this independent equitable action in the court below.",facts
+544,1981261,1,1,"In 2003, respondent became pregnant with D.S. At that time, respondent lived in Hoopeston, Illinois, and had eight children. The two youngest children lived with their father in Tennessee. Respondent's remaining six children were wards of the State of Illinois, per a 2001 neglect finding. During her pregnancy, respondent asked her Department of Children and Family Services (DCFS) caseworker, Jacqui Walters, what would happen if she had her baby here in Illinois. Walters responded that it would be up to the DCFS investigative unit to determine whether the baby should be taken into DCFS custody. Afraid that DCFS would take custody of this child as well, respondent began making plans to move to Tennessee. On March 1, 2004, respondent saw her obstetrician, Dr. Suzanne Trupin, at a clinic in Champaign. Dr. Trupin told respondent to return the next day, and respondent did so. At the March 2, 2004, appointment, Dr. Trupin told respondent to report immediately to Covenant Hospital in Champaign, as the birth of her baby was imminent. Instead, respondent got in her car and headed for Tennessee. Respondent made it as far as Crawfordsville, Indiana, before the contractions became too much to bear. Respondent checked herself into a local hospital, where she gave birth to D.S. that night. On March 3, 2004, Amy West from the Indiana Child Welfare Service called the Hoopeston police. West explained that hospital personnel in Crawfordsville were concerned because respondent, who had given birth the day before, could not provide a local address, saying only that she was from Hoopeston. The Hoopeston police were familiar with respondent, as Dr. Trupin's office had called them the day before after respondent failed to report to Covenant Hospital as instructed. The police then informed West that termination proceedings were pending in Illinois as to six of respondent's children. At this point, West contacted Jacqui Walters at DCFS. Walters, in turn, contacted the Vermilion County State's Attorney's office, which immediately filed a petition for adjudication of wardship in the Vermilion County circuit court. The State's petition alleged that D.S., who was one day old, resided in an environment that was injurious to his welfare. See 705 ILCS 405/2-3(1)(b) (West 2004). In support, the State alleged that the respondent had already been declared unfit as to six of her other children, in relation to whom termination proceedings were pending. Later that same day, the trial court held an ex parte emergency shelter care hearing. At the hearing, Walters described the events that led to D.S.'s birth in Crawfordsville. When asked whether she had notified respondent of the emergency shelter care hearing, Walters replied that she had not because she was not sure exactly what hospital's she's in, and    they're concerned she will flee with the baby. At the hearing's conclusion, the trial court found that it was a matter of immediate and urgent necessity to temporarily remove D.S. from respondent's custody. In support, the trial court cited both the prior neglect findings and the possibility that respondent would flee with D.S. and conceal him from Illinois authorities. On March 10, 2004, the trial court held a second emergency shelter care hearing, for which respondent was present. The State again called Jacqui Walters, and she repeated most of her previous testimony. Walters then explained that the terminations that were pending as to respondent's six other children were based in part upon respondent's diagnosis with borderline personality disorder, antisocial disorder, and psychotic features. According to Walters, respondent's mental illness posed a risk to the children. Although respondent was supposed to be receiving treatment, she had missed 5 of her last 13 counseling sessions. At the hearing's conclusion, the trial court again found that it was a matter of immediate and urgent necessity to temporarily remove D.S. from respondent's custody. This time, the trial court cited both respondent's effort to secret the child from the Department of Children and Family Services and respondent's serious mental health issues, which directly impact her ability to care for the child and her children. The trial court then granted temporary custody of D.S. to DCFS. On April 16, 1994, the trial court held an adjudicatory hearing. The State first called Ann Kapella, a child protection investigator with DCFS. Kapella testified as to a March 4, 2003, conversation with respondent, in which respondent stated that she did not go to Covenant Hospital as instructed by Dr. Trupin because she didn't want to give birth to the baby here in the State of Illinois. According to Kapella, respondent told her that she was afraid that [DCFS] would take this baby as well. The State then called Jacqui Walters, who again testified as to respondent's diagnosed mental-health issues. Walters explained that, although respondent was receiving treatment for her mental illness, that course of treatment was not yet complete. Finally, respondent herself testified, confirming that she left for Tennessee after the March 2 appointment because she was scared of the removal of this child. At the hearing's conclusion, the trial court found that D.S. was a neglected child due to an injurious environment. In support, the trial court cited both respondent's psychiatric condition that remains untreated and respondent's decision to hide the birth of this child by leaving the State without making any provision or arrangement for the birth of the child elsewhere. On this latter point, the trial court added: To take off in a car when you were obviously so close to giving birth, so close that the hospital in Champaign was trying to find out where you were   . That was an extremely dangerous thing you did. That was injurious to the child's welfare. A dispositional hearing followed, and the trial court entered an order finding that respondent was unfit to care for D.S. and that it was in D.S.'s best interest to be made a ward of the court. Custody was again awarded to DCFS. Respondent appealed, arguing that (1) the trial court lacked subject matter jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (750 ILCS 36/201 et seq. (West 2004)) because, at the time the wardship petition was filed, D.S. had never lived in Illinois; (2) the failure to notify respondent of the March 3, 2004, hearing rendered that hearing improper; and (3) the trial court's adjudication of wardship was against the manifest weight of the evidence. With one justice dissenting, the appellate court rejected all of respondent's arguments and affirmed the trial court's judgment. 354 Ill.App.3d 251, 293 Ill.Dec. 691, 828 N.E.2d 1189. We granted respondent's petition for leave to appeal (177 Ill.2d R. 315(a)).",facts
+545,3201354,1,2,"“In a discretionary review of a small claims decision, the nature of the case determines the standard of review.” GE Money Bank v. Morales, 773 N.W.2d 533, 536 (Iowa 2009). Our review of small claims actions tried at law is for corrections of errors at law. Midwest Check Cashing, Inc. v. Richey, 728 N.W.2d 396, 399 (Iowa 2007). “A review of statutory construction is at law.” GE Money Bank, 773 N.W.2d at 536. The district court’s factual findings, however, are binding upon the court if supported by substantial evidence. Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 272 (Iowa 2009).",standard of review
+546,885602,1,5,"¶ 25 Is the injunctive language in the arbitrator's award so broadly written that it effectively takes the Kuehls' property without due process and unconstitutionally restricts their access to the courts? ¶ 26 The Kuehls argue that language in the Final Arbitration Award denies them the right to protect their property and prevents them from accessing the courts as guaranteed under Article II, Section 16, of the Montana Constitution. The Langemeiers counter that the disputed road does not belong to the Kuehls. Because the property is a public road, the Langemeiers allege that the Kuehls do not have an interest that allows them to claim a constitutional violation. First American contends that the language of the arbitrator's award is not overly broad and that the Kuehls did not establish grounds for vacating or modifying the injunctive language. ¶ 27 The final arbitration award contains the following language: James R. and Robert F. Kuehl, and their heirs, personal representatives, successors and assigns, are prohibited and enjoined from commencing or prosecuting any action or proceeding, whether formal, informal, administrative or judicial, that arises from or is related to the easterly 30 feet of Plat No. 1685 or to the other acts, omissions or incidents described in any of the pleadings or documents filed in Carbon County Cause No. DV 95-02 or in the briefs and exhibits submitted in this arbitration; or that in any way challenges or questions the ownership of the easterly 30 feet of Pla[t] No. 1685. ¶ 28 The District Court found that prohibiting the Kuehls from commencing or prosecuting an action or proceeding regarding property in which they have no interest does not violate their due process rights nor improperly restrict their access to the courts. We agree. As the District Court pointed out, the language of the award was designed to stave off further malicious and reprehensible behavior by the Kuehls. The injunctive language does this in two different ways. ¶ 29 First, the injunctive language prohibits the Kuehls from bringing an action that arises from or is related to the easterly 30 feet of Plat No. 1685. It also prevents the Kuehls from bringing an action that in any way challenges or questions the ownership of the easterly 30 feet of Pla[t] No. 1685. The Kuehls claim that this language effectively takes property from them without due process of law. Their argument ignores that the Memorandum of Understanding, the Settlement Agreement and the Final Arbitration Award all establish that the Kuehls do not have a property interest in the disputed property. The Kuehls cannot claim the language deprives them of the use of their property when the property is not their's to use. To prevail on their due process claim, the Kuehls must have a definite property interest and show that such interest was, under color of state law, abridged without appropriate process. See ISC Distributors, Inc. v. Trevor (1995), 273 Mont. 185, 191, 903 P.2d 170, 173; see also Board of Regents v. Roth (1972), 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548. Because they do not have a property interest in the disputed roadway, the Kuehls' due process claim is without merit. ¶ 30 Second, the language of the Arbitration Award prohibits the Kuehls from litigating matters related to the disputed roadway or described in the Arbitration Action or proceedings. The Kuehls claim that this language denies them access to the courts. We, like the District Court, do not read the language so broadly. ¶ 31 The injunctive language seeks only to restrain the Kuehls from contesting matters previously decided. The Kuehls have already enjoyed access to the courts regarding these matters as this dispute has wound its way through two arbitrations, approval by the District Court and now an appeal before us. While Article II, Section 16, of the Montana Constitution guarantees every person access to the courts, it does not grant a person license to relitigate a cause or to burden the resources of the court with successive claims. See State v. Perry (1988), 232 Mont. 455, 463, 758 P.2d 268, 273. As we have recited in the past, judicial economy dictates restrictive limitations on reruns. Coleman v. State (1981), 194 Mont. 428, 439, 633 P.2d 624, 630, cert. denied (1982), 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693, (citing United States ex rel. Townsend v. Twomey (7th Cir.1971), 452 F.2d 350, 357, cert. denied (1972), 409 U.S. 854, 93 S.Ct. 190, 34 L.Ed.2d 98). ¶ 32 The Respondents presented a request for this injunctive language to the arbitrator for his determination. The language restrains the Kuehls from pursuing repetitive claims previously resolved by the Settlement Agreement concerning property in which they have no interest. Even if the arbitrator wrote the injunction more broadly than a court of law or equity would have written it, we will not vacate the award. See § 27-5-312(2), MCA; Nelson, ¶ 18. We thus conclude that the injunctive language was not so broadly written that it either effectively takes the Kuehls' property without due process or unconstitutionally restricts their access to the courts. ¶ 33 Affirmed. We Concur: JAMES C. NELSON, PATRICIA COTTER and W. WILLIAM LEAPHART, JJ.",issues
+547,2111189,1,2,"At approximately 6 p.m. on December 10, 1996, Tom Brown was found dead at the bottom of a roadside ditch in rural Buffalo County, northwest of Kearney, Nebraska. The body was dressed in jeans over blue sweat pants, a yellow pullover shirt, and gray socks. The victim was situated on his back, partially under a barbed wire fence, with his right arm extended over his head, which was lower than his legs because of the slope of the ditch. Dried blood extended from his nose to the lateral corner of his right eye. Brown's shirt was pulled up and twisted, and his jeans and sweat pants were pulled down. There were no shoes or coat on the body. Brown's glasses and several spots of blood were found near the edge of the ditch. Dr. Jerry Jones performed an autopsy and determined that Brown died as the result of three .22-caliber gunshot wounds, one in the right side of the neck and two in the chest. Jones was unable to state a precise opinion as to the time of Brown's death, but testified that it could have been as early as Thanksgiving Day, which fell on November 28, 1996. Jones opined that based upon the absence of lividity in the body, Brown did not die at the site where his body was found, but, rather, died elsewhere and was subsequently moved. Dr. Robert Bux, a pathologist who testified on behalf of Castor, stated that in his opinion Brown was killed at the site where his body was found and his death could have occurred up to 3 days after Thanksgiving Day.",introduction
+548,1615154,1,1,"On August 27, 2004, Victorino was charged in a fourteen-count superseding indictment that included six counts of first-degree murder in the deaths of Erin Belanger, Roberto Gonzalez, Michelle Nathan, Anthony Vega, Jonathon Gleason, and Francisco Flaco Ayo-Roman. Victorino, with codefendants Jerone Hunter and Michael Salas, went to trial on July 5, 2006. [1] Codefendant Robert Anthony Cannon previously pleaded guilty as charged.
+The evidence presented at trial established that the August 6, 2004, murders were the culmination of events that began several days before. On Friday, July 30, Erin Belanger contacted police concerning suspicious activity at her grandmother's vacant house on Providence Boulevard in Deltona. Without the owner's permission, Victorino and Hunter had recently moved into the home with their belongings. On Saturday, Belanger again contacted police; this time she reported that several items were missing from her grandmother's house. Late Saturday night, Victorino appeared at Belanger's own residence on Telford Lane. He demanded the return of his belongings, which he believed Belanger had taken from the Providence Boulevard residence. Shortly after leaving Belanger's residence early on the morning of Sunday, August 1, Victorino contacted law enforcement to report the theft of his belongings from the Providence Boulevard residence. The responding officer advised Victorino that he had to provide a list of the stolen property. This angered Victorino, and he said, I'll take care of this myself. A short time later, Victorino met Brandon Graham and codefendants Cannon and Salas, who were in Cannon's Ford Expedition (the SUV). Codefendant Hunter and several young women were also in the SUV. Victorino told them that Belanger and the other occupants of the Telford Lane house had stolen his belongings and that he wanted them to go fight Belanger and the others. According to Graham, Victorino and the occupants of the SUV all went in the SUV to the Telford Lane residence. While Victorino remained in the SUV, the young women went into the residence armed with knives. The young men stood outside holding baseball bats, and Hunter yelled for the occupants to come out and fight. The group left in Cannon's SUV, however, after victim Ayo-Roman yelled policia. A few days later, on the evening of Wednesday, August 4, Victorino went to a park with Graham and the three codefendants to fight another group. Evidence was presented that some of the members of that group were affiliated with the victims at Telford Lane and would have knowledge of Victorino's allegedly stolen property. When their foes failed to show up, Victorino and his associates drove back to a house on Fort Smith Boulevard in Deltona where Victorino and Hunter now lived. As they arrived, however, Victorino spotted the car of the group with which the fight was planned and directed Cannon, who was driving, to chase the car. Victorino fired a gunshot at the fleeing car and then told Cannon to take him home. The following morning, Thursday, August 5, Graham, Salas, and Cannon met with Victorino and Hunter at their residence. There, Victorino outlined the following plan to obtain his belongings from Belanger. Victorino said that he had seen a movie named Wonderland in which a group carrying lead pipes ran into a home and beat the occupants to death. Victorino stated that he would do the same thing at the Telford Lane residence. He asked Graham, Salas, and Cannon if they were down for it and said to Hunter, I know you're down for it because Hunter had belongings stolen as well. All agreed with Victorino's plan. Victorino described the layout of the Telford Lane residence and who would go where. Victorino said that he particularly wanted to kill Flaco, and told the group, You got to beat the bitches bad. Graham described Victorino as calm, cool-headed. Hunter asked if they should wear masks; Victorino responded, No, because we're not gonna leave any evidence. We're gonna kill them all. Victorino and his associates then left in Cannon's SUV to search for bullets for the gun that Victorino fired the previous night. While driving, the group further discussed their plan and decided that each of them needed a change of clothes because their clothes would get bloody. The group dropped Graham off at his friend Kristopher Craddock's house. Graham avoided the group's subsequent calls and did not participate in the murders. Around midnight on Thursday, August 5, a witness saw Victorino, Salas, Cannon, and Hunter near the murder scene on Telford Lane. Cannon, a State witness, testified that he and Salas went because they were afraid Victorino would kill them if they did not. Cannon further testified that he, Victorino, Hunter, and Salas entered the victims' home on the night of the murders armed with baseball bats. On the morning of Friday, August 6, a coworker of two of the victims discovered the six bodies at the Belanger residence and called 911. Officers responding to the 911 call arrived to find the six victims in various rooms. The victims had been beaten to death with baseball bats and had sustained cuts to their throats, most of which were inflicted postmortem. Belanger also sustained postmortem lacerations through her vagina up to the abdominal cavity of her body, which were consistent with having been inflicted by a baseball bat. The medical examiner determined that most of the victims had defensive wounds. The front door had been kicked in with such force that it broke the deadbolt lock and left a footwear impression on the door. Footwear impressions were also recovered from two playing cards, a bed sheet, and a pay stub. All of these impressions were linked to Victorino's Lugz boots. Furthermore, DNA testing linked bloodstains on Victorino's Lugz boots to several of the victims. A dead dachshund, a knife handle, and a bloody knife blade were also recovered from the crime scene. On Saturday, August 7, the day after the murders were discovered, Victorino was arrested on a probation violation at his residence on Fort Smith Boulevard. Hunter, who was present at the time, complied with the officers' request that he come to the sheriff's office. Once there, Hunter described his role in the murders. That same day, Cannon's SUV was seized. From it, officers recovered a pair of sunglasses containing victim Ayo-Roman's fingerprint. In addition, glass fragments found in the vehicle were consistent with glass from a broken lamp at the crime scene. When questioned by officers, Salas admitted to being at the crime scene on the night of the murders and stated that Cannon drove there with Victorino, Hunter, and Salas. Salas also described his role in the murders and told officers where the bats had been discarded at a retention pond. Based on that information, law enforcement authorities recovered two bats from the pond and two bats from surrounding trees. The two bats recovered from surrounding trees contained DNA material that was linked to at least four of the victims. At trial, Victorino testified in his defense. He admitted that he believed that Belanger had taken his property from the Providence Boulevard residence. However, he denied meeting Graham, Cannon, or Salas at his residence on August 5, testifying instead that he was at work. He further denied committing the murders and offered an alibi—that he was at a night-club on the night of the murders. Two friends testified on behalf of Victorino and corroborated his alibi. Hunter and Salas also testified in their defense. Each described his role in the murders and corroborated the other testimony and evidence offered at trial, including the evidence of the meeting at which Victorino planned the murders and the agreement to participate. They further testified that Victorino attempted to establish an alibi by making an appearance at the nightclub. On July 25, 2006, Victorino was convicted of six counts of first-degree murder (Counts II-VII); one count of abuse of a dead human body (Count VIII); one count of armed burglary of a dwelling (Count XIII); one count of conspiracy (to commit aggravated battery, murder, armed burglary of a dwelling, and tampering with physical evidence) (Count I); and one count of cruelty to an animal (Count XIV).
+At the beginning of the penalty phase, the trial court informed the jury of the parties' stipulation that Victorino was on felony probation for aggravated battery at the time of the murders. After the State introduced victim impact statements by the victims' family members, the defendant presented several witnesses. Victorino began by presenting the testimony of three expert witnesses. Dr. Joseph Wu, a psychiatrist, concluded that a PET (Positron Emission Tomography) scan revealed Victorino's brain was abnormal, evidencing lower than normal frontal lobe activity. While he did not make a diagnosis, he said that the scan was consistent with traumatic brain injury or mental health conditions, such as bipolar disorder or schizophrenia. After reviewing Victorino's records and conducting numerous tests, Dr. Charles Golden, a neuropsychologist, determined that Victorino has some frontal lobe impairment and severe emotional problems. Although Victorino has average intelligence and knows right from wrong, he performed poorly on executive function tests, has difficulty with interpersonal relationships, and has poor coping skills. Dr. Golden opined that the test results were consistent with Victorino's personal history of physical abuse, difficulty in controlling his aggression, and lack of mental health treatment. Finally, the third defense expert, Dr. Jeffrey Danziger, a psychiatrist, testified that Victorino has an IQ of 101 and outlined Victorino's long history of physical and emotional abuse by his father, an incident of sexual abuse, his history of mental health problems (including his several suicide attempts), and his time in prison. Several relatives and friends also testified. Victorino's brother and mother also told of Victorino's mental health problems, an instance of sexual abuse, and the frequent physical abuse by his father. In addition, two friends testified about their regard for him. In rebuttal, the State presented Dr. Lawrence Holder, an expert in radiology and nuclear medicine. He testified that Victorino's PET scan was normal. Further, he stated that use of a PET scan to suggest that a patient has a specific mental health problem, such as bipolar disorder, is not an established clinical use of such scans. The jury recommended life sentences for the murders of Michelle Nathan and Anthony Vega and death sentences for the murders of Erin Belanger (by a vote of ten to two), Francisco Ayo-Roman (by a vote of ten to two), Jonathan Gleason (by a vote of seven to five), and Roberto Gonzalez (by a vote of nine to three). At the subsequently held Spencer [2] hearing, the State submitted an additional written victim impact statement. Victorino did not present any additional evidence. On September 21, 2006, the trial court followed the jury's recommendations by imposing four death sentences. [3] The trial court found the following five aggravating factors applicable to each of the four murders and accorded them the weight indicated: (1) the defendant had a prior felony conviction and was on probation at the time of the murders (moderate weight); (2) the defendant had other capital felony convictions (very substantial weight); (3) the defendant committed the murders in the course of a burglary (moderate weight); (4) the murders were especially heinous, atrocious, or cruel (HAC) (very substantial weight); and (5) the murders were cold, calculated, and premeditated (CCP) (great weight). In addition, the court found a sixth aggravator in the murders of Gleason and Gonzalez—that the murders were committed to avoid arrest (substantial weight). The trial court found no statutory mitigation but did find the following nonstatutory mitigating factors: (1) Victorino had a history of mental illness (some weight); (2) he suffered childhood physical, sexual, and emotional abuse (moderate weight); (3) he was a devoted family member with family support (little weight); (4) he did some good deeds (very little weight); (5) he exhibited good behavior at trial (very little weight); (6) he was a good inmate (little weight); (7) he was a good student who earned awards (little weight); (8) he had an alcohol abuse problem (very little weight); and (9) he had a useful occupation (very little weight). The trial court determined that the aggravating factors far outweighed the mitigating circumstances and, in accord with the jury's recommendation, sentenced Victorino to death for each of the four murders.",facts
+549,2514765,1,1,[¶2] Mr. Dollarhide raises a single issue: Did the trial court abuse its discretion by dismissing Plaintiff's/Appellant's Complaint for Lack of Prosecution? Appellees present this additional issue: Should this appeal be dismissed because of Appellant's noncompliance with W.R.A.P. 7.01?,issues
+550,4513357,1,1,"After a will contest was transferred from the county court to the district court, the proponent sought and obtained a summary judgment determining that the decedent’s will was valid. The contestant appeals. Because the bill of exceptions does not contain the proponent’s evidence, only the contestant’s evidence is properly before us. Obviously, with literally no evidence to support it, the summary judgment for the proponent must be reversed. And because the matter is likely to recur upon remand, we briefly address Neb. Ct. R. § 6-1526 (rev. 2018), “Summary Judgment Procedure.”",introduction
+551,2287166,1,1,"Although KRS 342.305 gives a circuit court jurisdiction over matters concerning the enforcement of a final award, KRS 342.325 gives an ALJ jurisdiction over all questions arising under Chapter 342. KRS 342.125(1) permits an ALJ to reopen a final workers' compensation award based upon an allegation of mistake [10] or fraud. [11] KRS 342.125(l)(a) includes an allegation of fraud or constructive fraud on the tribunal. [12] The ALJ recognized properly that the present reopening differed from a simple attempt to enforce a final award and differed from a dispute between insurance carriers over reimbursement for previously-paid benefits, such as occurred in Custard Ins. Adjusters, Inc. v. Aldridge. [13] At issue was whether Zurich's conduct during the initial workers' compensation proceeding amounted to a constructive fraud that affected the accuracy and integrity of the ALJ's decision and, thus, estopped Zurich from later denying that it was liable for continued payments under the Tennessee policy.",jurisdiction
+552,2469499,1,1,"It is our general rule that, when an appellant challenges the sufficiency of the evidence, we address that issue prior to all others. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The appellant's argument is directed solely to his first degree murder conviction. At the close of the state's case, and again at the close of all evidence, the appellant moved for a directed verdict. He claimed that the state failed to prove he had acted with the purpose of causing the deaths of the three boys, or that he had acted as an accomplice to the commission of a homicidal act. The trial court denied the motion. A directed verdict motion is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the jury's verdict. Substantial evidence is that which is forceful enough to compel a conclusion one way or another and which goes beyond speculation or conjecture. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). We review the evidence in the light most favorable to the appellee and consider only that evidence which supports the verdict. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). The Moore, Byers and Branch boys were last seen at approximately 6:00 p.m. on May 5, 1993. At least two of the boys were riding their bicycles. Their parents reported them missing at about 8:00 p.m. Police and area residents conducted a search later that evening, but the boys were not found. The search continued on May 6. The boys' bodies were discovered about 1:15 that afternoon. On June 3, 1993, the crime having remained unsolved, Detective Sergeant Mike Allen sought the appellant out for questioning. The appellant was not considered a suspect, but it was thought he might have knowledge about Damien Echols, who was a suspect. Detective Allen located the appellant and brought him back to the station, arriving at approximately 10:00 a.m. Later in this opinion, we will address in detail the circumstances surrounding the appellant's interrogation. For now, it is sufficient to say that the appellant was questioned off and on over a period from 10:00 a.m. until 2:30 p.m. At 2:44 p.m. and again at approximately 5:00 p.m., he gave statements to police in which he confessed his involvement in the murders. Both statements were tape recorded. The statements were the strongest evidence offered against the appellant at trial. In fact, they were virtually the only evidence, all other testimony and exhibits serving primarily as corroboration. The statements were obtained in a question and answer format rather than in a narrative form. However, we will set out the substance of the statements in such a way as to reveal with clarity the appellant's description of the crime: In the early morning hours of May 5, 1993, the appellant received a phone call from Jason Baldwin. Baldwin asked the appellant to accompany him and Damien Echols to the Robin Hood area. The appellant agreed to go. They went to the area, which has a creek, and were in the creek when the victims rode up on their bicycles. Baldwin and Echols called to the boys, who came to the creek. The boys were severely beaten by Baldwin and Echols. At least two of the boys were raped and forced to perform oral sex on Baldwin and Echols. According to appellant, he was merely an observer. While these events were taking place, Michael Moore tried to escape and began running. The appellant chased him down and returned him to Baldwin and Echols. The appellant also stated that Baldwin had used a knife to cut the boys in the facial area and that the Byers boy was cut on his penis. Echols used a large stick to hit one of the boys. All three boys had their clothes taken off and were tied up. According to the appellant, he ran away from the scene at some point after the boys were tied up. He did observe that the Byers boy was dead when he left. Sometime after the appellant arrived home, Baldwin called saying, we done it and what are we going to do if somebody saw us. Echols could be heard in the background. The appellant was asked about his involvement in a cult. He said he had been involved for about three months. The participants would typically meet in the woods. They engaged in orgies and, as an initiation rite, killing and eating dogs. He noted that at one cult meeting, he saw a picture that Echols had taken of the three boys. He stated that Echols had been watching the boys. The appellant was also asked to describe what Baldwin and Echols were wearing the day of the murders. Baldwin was wearing blue jeans, black lace-up boots and a T-shirt with a rendering of a skull and the name of the group Metallica on it. Echols was wearing black pants, boots and a black T-shirt. The appellant initially stated that the events took place about 9:00 a.m. on May 5. Later in the statement, he changed that time to 12:00 noon. He admitted that his time periods might not be exactly right. He explained the presence of the young boys by saying they had skipped school that day. The first tape recorded statement concluded at 3:18 p.m. At approximately 5:00 p.m., another statement was recorded. This time, the appellant said he, Echols and Baldwin had come to the Robin Hood area between 5:00 and 6:00 p.m. Upon prompting by the officer, he changed that to 7:00 or 8:00 p.m. He finally settled on saying that his group arrived at 6:00 p.m. while the victims arrived near dark. He went into further detail about the sexual molestation of the victims. At least one of the boys had been held by the head and ears while being accosted. Both the Byers boy and the Branch boy had been raped. All the boys, he said, were tied up with brown rope. One of the interrogating officers later testified that his notes revealed the appellant told him he received a phone call from Baldwin on the night before the murders. Baldwin stated that they planned to go out and get some boys and hurt them. The appellant's statements are a confusing amalgam of times and events. Numerous inconsistencies appear, the most obvious being the various times of day the murders took place. Additionally, the boys were not tied with rope, but with black and white shoe laces. It was also revealed that the victims had not skipped school on May 5. However, there were portions of the statements which were consistent with the evidence and were corroborated by the state's testimony and exhibits. The victims had been seen riding their bicycles. [2] The medical examiner testified that the boys had been severely beaten. Two of them had injuries consistent with being hit by a large object. One of the boys had facial lacerations. The Byers boy had indeed been severely mutilated in the genital area. All the boys had injuries which were consistent with rape and forced oral sex. There was evidence that drowning contributed to the deaths of the Moore and Branch boys, but not the Byers boy. This is consistent with the appellant's statement that the Byers boy was already dead when he left the scene. The boys were in fact tied up, albeit with shoe laces rather than rope. Damien Echols was observed near the crime scene at 9:30 p.m. on May 5. He was wearing black pants and a black shirt and his clothes were muddy. A witness testified that she had attended a satanic cult meeting with Echols and the appellant. Christopher Byers' mother testified that, approximately two months before the murders, her son told her that a man dressed all in black had taken his picture. There was evidence that Baldwin owned a shirt and boots of the type described by the appellant. Finally, a witness from the State Crime Lab testified that she found fibers on the victims' clothing which were microscopically similar to items in the Baldwin and Echols residences. The appellant does not argue that the inconsistencies in his statements render them insufficient. Indeed, when inconsistencies appear in the evidence, we defer to the jury's determination of credibility. A jury is free to believe part of the evidence before it and reject other parts. Harris v. State, 294 Ark. 484, 743 S.W.2d 822 (1988); Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). However, the gravamen of this issue is whether the evidence contained in the statements supports a verdict of first degree murder. The appellant argues that he did not possess the requisite state of mind for the crime. The jury was instructed that they could find the appellant guilty of first degree murder if they found he acted with the purpose of causing the death of one of the victims. This is consistent with the language of Ark.Code Ann. § 5-10-102(a)(2) (Repl.1993). [3] The jury was also instructed on accomplice liability as follows: In this case, the state does not contend that Jessie Lloyd Misskelley, Junior acted alone in the commission of the offense of three counts of capital murder. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense. An accomplice is one who directly participates in the commission of an offense or who with the purpose of promoting or facilitating the commission of an offense agrees to aid, aids, or attempts to aid the other person or persons in the planning or committing the offense. This instruction is consistent with AMCI 401 and Ark.Code Ann. § 5-2-403(a)(2) (Repl.1993). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl.1993). In cases of murder, a defendant's intent is seldom capable of proof by direct evidence. It must usually be inferred from the circumstances of the killing. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). A defendant may be found guilty not only of his own conduct, but also the conduct of his accomplice. When two or more persons assist one another in the commission of a crime, all are accomplices and criminally liable for each other's conduct. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). The following factors are relevant in determining the connection of an accomplice with the crime: presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation. Id. Mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make a person an accomplice. Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993) (supplying intoxicant to one who later commits manslaughter does not support accomplice liability for manslaughter). However, where the state establishes evidence that the accused purposefully aided in the commission of the crime, a conviction for first degree murder based on accomplice liability will be upheld. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994). The jury's decision to convict the appellant of a greater offense in the death of Michael Moore indicates that much importance was placed on the appellant's chasing down the boy and returning him to the scene where brutal beatings and sexual assaults were taking place. Such an act is highly suggestive of joint participation in the crime. There was also evidence that the appellant knew the night before the murders that Baldwin and Echols were going to get some boys and hurt them. His participation in bizarre cult activities with Baldwin and Echols, while not conclusive of intent standing alone, reinforces the probability of his participation in such brutal murders. Finally, the appellant's detailed knowledge of the injuries inflicted on the boys suggests that he was in physical proximity to the activities taking place and took a much more active role than he admitted. The jury was not required to give credence to the appellant's contention that, for the most part, he was merely an observer. Riggins v. State, supra . We conclude that there is substantial evidence the appellant purposely aided and facilitated his accomplices in the commission of first degree murder and therefore find sufficient evidence to support his conviction.",sufficiency of the evidence
+553,2174563,1,2,"Gefroh's second issue on appeal is whether the trial court erred by dismissing his motion for judgment of acquittal under Rule 29(a), N.D.R.Crim.P. [5] We hold that the trial court did not err, and affirm it on this issue. The standard of review for testing the sufficiency of the evidence requires us to draw all inferences in favor of the verdict. To successfully challenge the sufficiency of the evidence on appeal, a defendant must convince us that the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt. State v. Raulston, 475 N.W.2d 127, 128 (N.D.1991). The tasks of weighing the evidence and judging the credibility of witnesses belong to the jury. State v. Lovejoy, 464 N.W.2d 386, 388 (N.D.1990). On appeal, this court must assume that the jury believed the evidence which supports the verdict and disbelieved any contrary evidence. State v. Manke, 328 N.W.2d 799, 806 (N.D.1982). State v. Purdy, 491 N.W.2d 402, 410 (N.D.1992). See also State v. Morstad, 493 N.W.2d 645 (N.D.1992). A verdict for conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after drawing all inferences in favor of the verdict and viewing all evidence in a light most favorable to the prosecution. State v. Schill, 406 N.W.2d 660, 660 (N.D.1987). Gefroh contends that the phrase or not wake up at all is not sufficiently definite to constitute the threat of a crime of violence or act dangerous to human life, as Section 12.1-17-04, N.D.C.C., requires. We disagree. In his appellate brief, Gefroh has cited several cases from other states and the federal system wherein the threats amounting to terrorizing graphically and specifically described the dangerous acts or violent crimes. In light of these cases, Gefroh concludes that his words were not specific enough to form the basis for a terrorizing conviction. By making this argument, Gefroh ignores precedent of this Court in which we stated that threats do not need to be detailed and specific in order to establish an actionable offense. No precise words are necessary to convey a threat. It may be bluntly spoken, or done by innuendo or suggestion. In re Burke, 9 O.C.D. 350, 17 Cr.Ct.R., N.S., 315 (1899). A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited. State v. Howe, 247 N.W.2d 647, 654 (N.D.1976). See also State v. Zeno, 490 N.W.2d 707, 710 (N.D.1992); State v. Haugen, 392 N.W.2d 799, 805 (N.D.1986); State v. Hass, 268 N.W.2d 456, 463 (N.D.1978); State v. Weippert, 237 N.W.2d 1, 4 (N.D.1975). When viewing the State's evidence under our standard of review, we find the elements of terrorizing clearly present in this case. The circumstances surrounding the statement are significant and must be considered. First, Gefroh had a history of harming Kim. Next, approximately one hour before the statement was made, Gefroh claimed he beheaded one kitten and then he brutally mutilated another. He did these things not only before Kim, but also in the presence of his five-year-old son, who was obviously experiencing distress during the episodes. Finally, after being told by authorities to cease further menacing contact with Kim and their sons, Gefroh telephoned Kim, threatened property damage to her car, and then threatened that she would not wake up at all. Uttered in the context of Gefroh's prior actions, and viewed in a light most favorable to the verdict, those words constituted a threat of a violent crime or dangerous act.",sufficiency of the evidence
+554,2176961,1,2,"Petitioner's claim of ineffective counsel rests upon several alleged errors. We are guided by well-settled rules in our review of this contention. An attorney is presumed to have rendered competent representation, and only a strong showing to the contrary will rebut that presumption. E.g., Robertson v. State, (1974) 262 Ind. 562, 319 N.E.2d 833. We must look to the facts of each case in order to determine whether counsel has provided his client with effective representation. E.g., Roberts v. State, (1977) 266 Ind. 72, 360 N.E.2d 825. We will not second-guess counsel's trial tactics or strategy. E.g., Loman v. State, (1976) 265 Ind. 255, 354 N.E.2d 205. An isolated mistake or instance of poor strategy does not render representation ineffective or inadequate; and representation is deemed to be adequate, unless the record reflects that the trial was reduced to a mockery of justice. E.g., Merida v. State, (1979) Ind., 383 N.E.2d 1043. While at Gary police headquarters, shortly after the rapes and abduction, the victim was inadvertently led past the booking room, where she saw Robert and immediately identified him. Sometime after this brief encounter, she was shown a lot of photographs, and from them, she picked Robert's. At trial, she identified Robert and testified regarding both the encounter at the police station and the photographic display. Robert contends that there were no exigent circumstances justifying the one-on-one identification, that the photographic identification was tainted by the confrontation, and that the in-court identification was tainted by both. Thus, he argues that his counsel was ineffective inasmuch as he failed to seek suppression of all the identifications. It is clear from the evidence presented at trial that the confrontation at police headquarters was unintentional. The police had not requested that the victim look at Robert; her spontaneous identification did not result from police instigation or prompting. The confrontation, therefore, was not unduly suggestive. See, Johnson v. State, (1972) 257 Ind. 634, 277 N.E.2d 791; Grimes v. State, (1972) 258 Ind. 257, 280 N.E.2d 575; Griffin v. State, (1976) Ind. Ct. App., 357 N.E.2d 917. Absent other suggestive factors, the victim's viewing of Robert, shortly before she made the photographic identification, did not render it inadmissible, there having been ample evidence of her source of an independent identification. Because the extra-judicial identifications were not improper, it follows that the in-court identification was not tainted. See Johnson, supra . Thus, it would have been useless to file a motion to suppress; and counsel's failure to perform a futile act cannot be considered as evidence of incompetence. There was testimony introduced at trial regarding a statement that Robert yelled at the victim when he saw her at the police station. Although counsel objected and argued against admission on Miranda grounds, Robert asserts that he failed to object that the statement was tainted evidence flowing from an improper identification. Because, as discussed above, there had been no improper identification, this allegation is without foundation. Robert's statement to the victim was to the effect that any sexual relations had been consensual. At trial, one witness testified that Robert had referred only to himself in the statement, while another testified that he had referred to us. Charles asserts that counsel had been ineffective when he failed to predicate his motion for severance specifically upon Robert's remark. Because the jury was aware that three assailants were involved, we do not believe that an isolated reference to us gave rise to an inference that Robert was referring to Charles. Therefore, we conclude that error, if any, was harmless in light of the overwhelming evidence of Charles' guilt. See Carter v. State, (1977) 266 Ind. 140, 361 N.E.2d 145. As we are unconvinced that Charles would have been entitled to severance pursuant to Ind. Code § 35-3.1-1-11(b), we cannot say with certainty that counsel erred when he failed to specify Robert's remark as a ground for severance. Charles contends that counsel failed to advise him that he would be implicating himself as an accomplice if he testified regarding his presence during the criminal events. He asserts that counsel's alleged failure deprived him of the ability to make an informed decision regarding his privilege not to testify. The record reveals that counsel stated to the trial court: Your Honor,    I would like to indicate to the Court that I talked to my clients and have explained to them the law pertaining to their rights to remain silent, and I have told them they need not take the stand in this matter. However, notwithstanding my recommendation, each of the defendants has requested that I call them and submit their testimony before the Court which I intend to do at this time   . So I would want to indicate for the record, that I am attempting to pursue their desires. As a result of that, I will call the defendants to the stand. Further, Charles testified at the hearing on his petition for post conviction relief that counsel had informed him that he would be incriminating himself if he testified. It is sufficient to note that we believe that the above indicates that counsel adequately advised Charles, and that Charles chose to testify with knowledge of the possible consequences. Charles next complains of counsel's failure to object to the trial prosecutor's cross-examination regarding his failure to inform police of exculpatory information. Because, as we previously determined in Issue I, the cross-examination was not improper, counsel's failure to object obviously cannot be said to evidence ineffectiveness. Finally, Charles and Robert contend that they were denied effective assistance of counsel because there was an actual conflict of interest in trial counsel's representation of both petitioners. They contend that the conflict is evidenced by the admission of Robert's statement to the victim and Charles' trial testimony. In Ross v. State, (1978) Ind., 377 N.E.2d 634, 636-37, we stated: Simultaneous representation of co-defendants is fraught with the potential for chaos at worst and frustration at best. It should be avoided as the plague   . Nevertheless, such representation is not per se evidence of ineffective representation. Martin v. State, (1974) 262 Ind. 232, 314 N.E.2d 60   . An examination of the record reveals that Charles, in his testimony, denied that Robert was even present during the incidents. He did testify, however, that one of the men who had kidnapped the victim left the motel and went to Robert's home to seek his advice. Charles continued that Robert intervened and gave advice only in an attempt to convince the assailant to spare the victim's life. When considered in context, it is clear that Charles attempted to relieve Robert of any culpability. Because of the nature of Charles' testimony, and because we are unconvinced that Robert's out-of-court statement entitled Charles to a separate trial, we believe that there was no actual conflict and therefore, no error in counsel's joint representation. Petitioners have failed to show how they were prejudiced by what counsel did or failed to do. We do not find, from the evidence presented, that counsel's representation was so ineffective as to constitute a mockery of justice. It appears that counsel may have been faced with making some difficult choices. We cannot say that he may not, on one or more occasions, have made the wrong choice. We infer no opinion in this respect. Regardless, however, mistakes, standing alone, do not amount to ineffective counsel. Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686. We find no error. The judgment of the trial court is affirmed. GIVAN, C.J., and HUNTER and PIVARNIK, JJ., concur. DeBRULER, J., concurs in result.",issues
+555,4553858,1,4,"We have two sets of appeals: those taken following the June 18, 2018, orders and those taken after the district court awarded attorney fees to the relators. The first appeals were 7 § 84-712.01(3). 8 Id. 9 Aksamit Resource Mgmt., supra note 5. 10 Id. 11 Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 N.W.2d 100 (1998). 12 See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). - 789 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 premature. 13 We dismiss those appeals for lack of jurisdiction. We have jurisdiction over the second set of appeals.",jurisdiction
+556,4543380,1,1,"¶3 In 2006, Ezell received her license to practice law in Oklahoma. She practiced law, in good standing, until the date of her interim suspension. ¶4 Ezell became General Counsel for the Oklahoma State Department of Health (OSDH) in November 2017. The agency tasked Ezell with drafting the rules and regulations to govern the implementation of legalized medical marijuana in Oklahoma. Ezell contends interested parties within the Oklahoma state government and the Oklahoma State Board of Health were attempting to influence the promulgation of the administrative rules, pushing to include two unlawful rules which required pharmacists in each dispensary and banning smokables. Ezell voiced her concerns regarding the unlawful rules, but the interested parties told her to draft the rules to include the two constraints. ¶5 Ezell experienced extreme stress due to the pressure to draft the medical marijuana rules, including those she believed were unlawful, and problems in her personal life. On account of the stress, Ezell began sending threatening emails from a fictitious email address to her official government email address that appeared to be authored by proponents of the medical marijuana referendum. She obtained the fictitious email address from protonmail.com (Proton Mail). From July 8, 2018, until July 12, 2018, Ezell sent ten emails to herself with escalating threats to her safety. ¶6 Ezell immediately reported the first email to an investigator at OSDH. On July 9, 2018, OSDH requested that the Oklahoma State Bureau of Investigation (OSBI) investigate the threatening emails. The Edmond Police Department provided surveillance at Ezell's workplace and home. The Edmond Police Department also escorted Ezell from work and checked Ezell's personal vehicle for a GPS device. The University of Oklahoma Health Sciences Center's Police Department provided Ezell further security while she was at her workplace. OSBI placed pole cameras in Ezell's neighborhood to monitor Ezell's house and the traffic in the neighborhood. ¶7 After OSBI launched its investigation, Ezell continued to send emails with escalating threats to herself. Ezell also provided to OSBI names of individuals that she believed could have access to her phone or be sending her threatening emails. As a result, OSBI obtained information on medical marijuana proponent groups and contacted law enforcement across the United States requesting information on similar threats. OSBI, through the assistance of a Mutual Legal Assistance Treaty (MLAT) request to Switzerland, ultimately determined that the Proton Mail account was registered to Ezell's husband. ¶8 On July 12, 2018, Ezell turned her phone over to OSBI, who performed a forensics examination of the phone. OSBI determined Ezell was responsible for creating the Proton Mail email account and sending the emails at issue. On July 13, 2018, OSBI met with Ezell to discuss the results of the forensics examination of her phone. Ezell continued to implicate other individuals who could be responsible for the emails and did not take responsibility for her actions. It was not until OSBI confronted Ezell with the information gathered from the forensics examination that Ezell admitted her wrongdoing. Ezell then confessed to OSBI that she was responsible for the threatening emails. ¶9 On July 17, 2018, the Oklahoma County District Attorney charged Ezell with two felonies, Presenting False Evidence at Trial and Using a Computer to Violate Oklahoma Statutes, and one misdemeanor, Falsely Reporting a Crime. The Oklahoma County District Attorney eventually dismissed one felony charge and reduced the other felony charge to a misdemeanor. Ezell pled guilty to two misdemeanor counts, Falsely Reporting a Crime and Use of a Computer to Violate Oklahoma Statutes. The district court ordered her to pay $21,810 in restitution for the costs involved in the OSBI investigation, which Ezell paid upon entering her plea of guilty. The district court deferred sentencing until October 15, 2024. Ezell fully paid all court costs, fees, and probation fees in advance.",facts
+557,6350329,1,1,"This court’s jurisdiction is pursuant to Arkansas Rule of Appellate Procedure–Civil 2(a)(10), which permits an interlocutory appeal of an order denying a motion to dismiss based on the defense of sovereign immunity.",jurisdiction
+558,6340450,1,1,"Law enforcement seized Matthew Zimmer’s shotgun, incident to an arrest. Following his successful completion of probation, Zimmer moved the county court for Lancaster County, Nebraska, to return his seized firearm. The court denied the motion and ordered that the firearm be destroyed. Zimmer appealed to the district court, which affirmed. Zimmer further appeals and asserts that under Neb. Rev. Stat. § 29-820 (Reissue 2016), the trial court was required to return the seized firearm, because the firearm was not used in the commission of a crime. We agree that the lower courts erred, and as a result, we reverse the judgment of the district court and remand the matter to the district court with directions to reverse the judgment of the county court. - 296 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. ZIMMER Cite as 311 Neb. 294",introduction
+559,1242767,1,5,"¶ 26 The opinion of the court of appeals is vacated and the judgment of the trial court is affirmed. Because defendants are not prevailing parties, their request for attorneys' fees is denied. ZLAKET, C.J., and FELDMAN, J., and JOSEPH W. HOWARD, Judge, concur. CHARLES E. JONES, V.C.J., recused himself in this matter. Pursuant to Art. 6, Section 3 of the Arizona Constitution, JOSEPH W. HOWARD, Judge, Arizona Court of Appeals, Division Two, was designated to sit in his stead.",conclusion
+560,1132298,1,1,"Billy Atkins [Atkins], an enrolled fullblood Creek Indian was the conveyee of a 1903 surplus allotment of 120 acres. Alienation of the land was then restricted by a congressional act. Upon his death in 1923 Atkins' three surviving children, Creeks of the half-blood, each inherited an undivided one-third interest in their father's allotment. These surviving children were Nellie Armstrong [Armstrong], appellant herein, and her two brothers. Upon the death of Atkins the restrictions on the land came to be terminated by operation of law. His children hence took free of any restrictions on the land and also of any personal restrictions. Armstrong and her brothers exchanged deeds in 1940. As a result of this action each of them became the owner of a complete interest in an entire 40-acre tract. Although the land was still unrestricted when this occurred, Congress, in 1947, changed its policy by retroactively imposing restrictions on certain lands transferred by inheritance. [2] More specifically the restriction was placed on any interest in land that had been acquired by Indian heirs or devisees of one-half or more Indian blood when such interest in land was restricted in the hands of the person from whom the Indian heir or devisee acquired the land. The restriction imposed by the Act provided that [n]o conveyance [of such lands] shall be valid unless approved ... by the county court of the county in Oklahoma in which the land is situated ... [3] [emphasis supplied]. Armstrong and her husband conveyed in 1965 by warranty deed her 40-acre tract to Becko. The present parties in interest acquired the land through a series of subsequent conveyances. In 1974 Armstrong brought suit in a federal court for ejectment and to quiet title in herself. She alleged that the deed to Becko was void since it was not given in compliance with the 1947 congressional act. Both federal courts — district and circuit — held against her. [4] Hamilton Investment Trust, holder of several mortgages on the property in question, sought in this suit to foreclose its mortgages upon the land in dispute. Armstrong, as a defendant in the case, filed her counterclaim and cross-petition for ejectment. She alleged she was the owner of the property in suit and joined in the litigation all those persons who were parties in the prior federal suit. The state court found that Armstrong's claims to the land were barred by the prior federal adjudication. Summary judgment was rendered against Armstrong and in favor of all the parties who had been successful in the prior federal-court suit. The case presents a mixed federal-state question of law. Federal law governs both the preclusive and res judicata effect of the prior federal-court judgment [5] but (b) state law must be applied in gauging the correctness of the procedure invoked for launching the collateral attack. [6] The posture of this case raises two related issues for our resolution: (1) whether issue preclusion [7] is invocable as a bar against a collateral attack upon the federal-court judgment based on an alleged jurisdictional defect and (2) whether claim preclusion [8] is applicable to prevent relitigation of Armstrong's claims to the land in suit against all the parties in her prior litigation. [9] We hold that the procedural avenue of collateral attack, based on the theory of a facially void judgment, is foreclosed to Armstrong by operation of issue preclusion because that issue has been previously fully and fairly litigated in the federal courts albeit in the procedural context of a somewhat different cause of action. Since Armstrong's attack was the only device open to her in the state court in order to avoid the effect of the prior federal-court judgment — and that route is held here unavailable — claim preclusion will operate to bar relitigation of her asserted claims to the land in suit.
+Armstrong's challenge is rested on the federal court's facial want of subject matter jurisdiction and of the power to render the judgment. She does not question that court's jurisdiction over the parties. Although a question may arise on the face of the judgment roll [10] as to the presence of an essential jurisdictional prerequisite — whether it be (a) jurisdiction of the parties, (b) jurisdiction of the subject matter or (c) jurisdictional power to render the particular judgment — issue preclusion will nonetheless operate to bar a collateral attack upon the judgment if want of the jurisdictional element that facially appears to be in doubt has been fairly and fully litigated as a disputed issue between the parties. [11]
+It is clear that the federal court had subject matter jurisdiction in the original case brought by Armstrong. The terms of 28 U.S.C. § 1331 vest the federal district court with subject matter jurisdiction of all civil actions arising under the constitution, laws or treaties of the United States. The 1947 Act is a law of the United States promulgated by the Congress. Armstrong's asserted right of possession is claimed under that federal law; thus subject matter jurisdiction was vested in the federal district court. [12] The United States Court of Appeals for the Tenth Circuit explicitly noted that the construction of a federal statute is a matter of federal law. [13] Armstrong's assertion that the prior judgment is void for want of jurisdiction is based on two Oklahoma cases: Neal v. Travelers Insurance Co. [14] and Tidal Oil Co. v. Flanagan. [15] These and other cases in a continuing line of authority are inapplicable to the facts before us now. Neal dealt with a state court's lack of jurisdiction to foreclose a real estate mortgage on inherited, restricted Indian lands, which mortgage was not approved as required by Congress. Tidal Oil deals with state courts' lack of jurisdiction to quiet title to minor Indians' allotted land where a conveyance was executed in violation of federal statutes. These cases are not authority in the case at bar. They deal with the jurisdiction of state courts. The question for us here deals with the jurisdiction of federal courts, not of Oklahoma state courts, to entertain a dispute over the meaning of a federal statute as it affects transactions concerning Indian lands. This issue is one of federal law. It hence lies within the cognizance of federal courts. Even if the issue of subject matter jurisdiction in the federal courts had not been fully and fairly litigated, Armstrong's collateral attack still could not be successful. The defect relied on does not appear on the face of the record proper [16] which alone is the target of her collateral attack. Armstrong was required to, and did plead in her petition, the grounds for invoking federal-court jurisdiction. The federal district court found as a matter of law that it had jurisdiction of the subject matter before it. It thus could adjudicate all issues and determine the rights of all parties. [17]
+Armstrong collaterally attacks the decision of the federal court on the basis that the prior litigation is facially void for want of jurisdictional power to render the particular judgment rendered. [18] In her brief-in-chief and reply brief to the Tenth Circuit Court of Appeals, she squarely raised the issue of the federal court's lack of jurisdiction to render a judgment which, she argued, gave approval to the conveyance of restricted land. More specifically, in Proposition II of her brief-in-chief she argued that although the 1947 Act gives exclusive jurisdiction to approve conveyances of restricted Indian lands to the state county court, the federal district court presumed to approve the deed to Becko, [19] and in Proposition II of her reply brief — titled The trial court was without jurisdiction to conduct an approval proceeding — she again objected to the federal court's jurisdiction. [20] Armstrong raises again the very same issue, and argues here, that the effect of the federal-court decision was to give approval to a conveyance of restricted Indian lands which the federal court was without power to do. Just as the issue of the federal court's jurisdiction to render the judgment has been raised, so also it has been fairly and fully litigated. [21] Even if the issue had not been raised and litigated in the federal suit, we do not believe that the judgment would be facially void. The federal court did not attempt to usurp the county court's jurisdiction by either approving or disapproving the conveyance in suit. Instead, it merely determined that two-thirds of Armstrong's interest in the land was not subject to the 1947 Act and that laches operated to bar her claim to the remaining one-third interest. It is an elementary tenet of law that once the question of jurisdiction has been raised and decided, issue preclusion operates to disallow any future litigation of that issue. [22] Because the federal district court fully and fairly settled the jurisdictional infirmity here under challenge, its relitigation in a collateral attack is barred by issue preclusion. The principle applies even where a court's decision regarding its jurisdiction might constitute a patently erroneous application of the law. [23] In summary, since Armstrong's challenge to the judgment for a facially-apparent jurisdictional deficiency is closed to her, the attack launched in the present case must fail.",facts
+561,885110,1,3,"¶ 19 Did the District Court err in finding that Hafner's disability precluded him from performance of the Helper position at Conoco? ¶ 20 Hafner argues that the District Court erred in finding that his disability precluded him from performance of the Helper position because such a finding was contrary to the law of the case and, therefore, beyond the scope of the court's jurisdiction. We agree. The law of the case doctrine expresses the practice of courts generally to refuse to reopen what has been decided. Marriage of Scott (1997), 283 Mont. 169, 175, 939 P.2d 998, 1001-02. We have held: [W]here upon an appeal, the Supreme Court, in deciding a case presented, states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal. Scott, 283 Mont. at 175-76, 939 P.2d at 1002. Here, the parties appear in a second appeal of the same case involving the same issues as those previously addressed in Hafner I. In Hafner I, this Court determined, as a matter of law, that Hafner was qualified to perform the tasks required of the Helper position. Having made this determination in Hafner I, it became the law of the case and the District Court was without jurisdiction to revisit the issue. We hold that the court erred in finding that Hafner's disability precluded him from performance of the Helper position. ¶ 21 Although we find error in the court's finding, we recognize the confusion that application of Reeves may have had on the instant case. Therefore, for the benefit of the court and the parties on remand of this case, we take this opportunity to briefly clarify the proper application of Reeves to the instant case. As previously stated, Reeves changed the shifting burden requirements for direct evidence employment discrimination cases. In such cases, once the complainant has established a prima facie case of discrimination with direct evidence, the burden then shifts to the employer to prove either or both of two defenses: that an unlawful motive played no role in the challenged action or that the direct evidence of discrimination is not credible and is unworthy of belief. Reeves, ¶¶ 17-18; Rule 24.9.610(5), ARM. ¶ 22 The instant case is unique and very different from most direct evidence cases. Here, the law of the case precludes Conoco from choosing the second defense and attacking the credibility of the direct evidence of discrimination. In Hafner I, we determined, as a matter of law, that Hafner was disabled, that he was qualified, and that he had established a prima facie case of discrimination. We held that Hafner was statutorily disabled because Conoco regarded him as such. Those determinations are the law of the case and cannot be revisited by the parties or the District Court. Scott, 283 Mont. at 175-76, 939 P.2d at 1002. Furthermore, Conoco does not dispute that it withdrew Hafner's job offer on the basis of his disability. Conoco disputes only whether this discrimination was illegal. Thus, the only part of Reeves applicable to this case is Conoco's burden of proving absence of unlawful motive in the challenged action. Put another way, what was Hafner's burden of proving pretext under Hafner I and the McDonnell test, is now Conoco's burden of proving absence of unlawful motive under the Reeves test.",issues
+562,4509366,1,1,"The issue in this error proceeding1 is whether a probation violation allegation asserting a law violation from a 1 See Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018). - 54 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JEDLICKA Cite as 305 Neb. 52 new charge of possession of methamphetamine constitutes a “substance abuse . . . violation”2 having a prerequisite of 90 days of cumulative custodial sanctions. The district court determined it does and sustained Parris R. Jedlicka’s motion to quash an information for revocation of probation. Because we conclude that this allegation of a law violation is not a “substance abuse” violation for revocation of probation purposes, we sustain the exception and remand the cause for further proceedings.",introduction
+563,4289840,1,2,"[1] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirm­ atively show that the defendant is entitled to no relief.2 The lower court’s findings of fact will be upheld unless such findings are clearly erroneous.3 [2] If the facts of a case are undisputed, the issue as to when the statute of limitations begin to run is a question of law.4",standard of review
+564,906367,1,6,"In the absence of any persuasive reason why extraordinary expenses should be treated differently than any other issue regarding children, we hold that a party’s responsibility under § 42-364.17 for reasonable and necessary medical, dental, and eye care; medical reimbursements; daycare; extracurricular activity; education; and other extraordinary expenses of the child to be made in the future may be modified if the applicant proves that a material change in circumstances has occurred since entry of the decree or a previous modification. Giving weight to the district court’s acceptance of the evidence that Jason’s employment was not terminated due to his own misconduct and that Cynthia incurred extracurricular expenses so as to financially burden Jason, we find no abuse of discretion in the determination that there was a change in circumstances warranting modification of the parties’ divorce decree. We affirm the order of modification. Affirmed.",conclusion
+565,1908944,2,1,"`Clear and convincing evidence,' for purposes of punitive damages awards, is `[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.' Talent Tree Personnel Services, Inc. v. Fleenor, 703 So.2d 917, 923 (Ala.1997) (quoting § 6-11-20(b)(4), Ala.Code 1975). In the context of this case, we must determine whether the jury could have found by clear and convincing evidence that the defendants' conduct amounted to [a]n intentional misrepresentation, deceit, or concealment of a material fact that the concealing party had a duty to disclose, which was gross, oppressive, or malicious and committed with the intention on the part of the defendant of thereby depriving a person or entity of property or legal rights or otherwise causing injury. § 6-11-20(b)(1), Ala.Code 1975. A gross misrepresentation or failure to disclose is defined as one that is inexcusable, flagrant, or shameful. See Talent Tree, 703 So.2d at 924; Ex parte Norwood Hodges Motor Co., 680 So.2d 245, 249 (Ala.1996). After carefully reviewing the evidence, we conclude that the jury could have reasonably concluded that the defendants' representation that Mrs. Thomas had full coverage and their failure to disclose that Mrs. Thomas could not even qualify for full coverage were shown by clear and convincing evidence to be gross; that is, inexcusable, flagrant, or shameful.",sufficiency of the evidence
+566,2614170,1,1,"Kimbrough, Corey and Young were the principal officers and stockholders of Kauaian Development. Kimbrough and Corey were president and vice president-general counsel, respectively. At the inception of the dealings between the parties to this case, Kimbrough and Corey met with a representative of State Savings to work out the figures for the proposed loan. After many negotiations State Savings agreed to a mortgage loan of 65% of the appraised value of the land and construction costs. Pursuant to this arrangement Corey submitted to State Savings a financial statement of a proposed hotel condominium which included a specific cost for construction in the amount of $761,500.00. This statement was signed by Corey as vice president of Kauaian Development. Kauaian Development already had a contract in existence with the contractor, Better Built Hawaii, Ltd. (hereinafter Better Built), for construction of the hotel condominium at a cost price of $600,000.00, less than that represented to State Savings. This previously made contract between Kauaian Development and Better Built was evidenced by a letter agreement signed by the president of Better Built and Kimbrough for Kauaian Development. The essence of this agreement provided that the higher construction cost figure given to State Savings was to be considered as between Better Built and Kauaian Development for financing purposes only, and was not to modify their existing agreement at the lower cost figure. Subsequently State Savings was furnished, at its request, a copy of what was purported to be the contract between Better Built and Kauaian Development. It was signed by the president of Better Built and by Kimbrough as president of Kauaian Development. It included the same higher construction cost figure previously submitted by Corey to State Savings. The closing documents for the mortgage loan in the amount of $857,000.00, based in part upon the higher construction figure represented to State Savings, were signed and formally executed. During the process of preparing for the closing it became apparent that the total amount of the loan as proposed would not cover the total expected cost to finish the construction, which had already started. In order to assure that this deficiency would be met and that there would be sufficient funds to complete the construction, State Savings accepted Kimbrough's, Corey's and Young's personal guarantee that any such funds would be paid by them. In part this agreement reads as follows: This statement shows an additional amount to be received from the development company to provide for all loan disbursements in the amount of $46,485.50. Although the loan is made to the corporation, of which the undersigned are officers, it is hereby agreed that the undersigned officers pledge their personal liability for the above amount of money, or any other amount of money that may be necessary, to complete the proposed Hyatt House development on the island of Kauai. We guaranty that this money will be available for the payment of expenses to complete this project as originally proposed in the mortgaging agreements. This agreement was signed by Kimbrough, Corey and Young. Under the mortgage loan arrangement, construction progress payments were to be paid to Kauaian Development rather than Better Built as requested by defendants. Eventually all the progress payments under the loan were made, the construction was completed and the hotel condominium started its operation. Repayment of the mortgage loan became delinquent and State Savings instituted, in the fifth circuit court in Civil No. 636, a mortgage foreclosure proceeding against Kauaian Development and the individual unit owners. The court in said case ordered that the property be foreclosed and sold to pay the balance due on the mortgage and two mechanic's liens which were adjudged to have priority over the mortgage. The mechanic's liens totalled $28,506.70. The court ordered the property sold at public auction at an upset price of $1,051,200.80. This amount included the balance due on the mortgage, the mechanic's liens and the foreclosure expenses. There were no bidders at the upset price sale. The court determined that the property should be sold with no upset price. At the second sale State Savings itself purchased the property for $913,000.00. This left a difference of $138,200.80 between the purchase price and the upset price. The jury in the instant case, which is now on appeal, rendered a verdict of $28,506.70, the amount of the mechanic's liens, on Count I under the written guarantee agreement against defendants Kimbrough, Corey and Young. Under Count II for fraud, a verdict of $109,694.10 was rendered against defendants Kimbrough and Corey. These two figures total the $138,200.80 difference between the upset price and the purchase price.",facts
+567,864053,1,1,"¶2. On March 25, 1999, Robert, Anthony Rhone, and William Glass drove from Meridian to Kemper County to a night club called The Other Side of Midnight. Robert's wife, Mary Ann, and her friend Charlotte Curtis drove to the club separately. While at the club, Glass and Cross got into a fight on the dance floor. Mary Ann and Curtis were outside when the fighting ensued. Robert and Rhone stood at the edge of the dance floor with their backs turned while Glass and Cross fought. Someone turned the lights on and off during the fight while many patrons were exiting the building. The lights went out a final time, and gun shots were heard and seen by different witnesses. Cross was shot five or six times and died as a result. Several witnesses said that shots were fired outside the club also. Testimony differed as to how many shots were fired and their origin. ¶3. Robert admitted that he pulled from the front of his pants a Lorson 9 mm pistol, which had a ten round clip in it, and began shooting. He told law enforcement officers that he shot toward the ground. Robert said he did not see Cross on the floor and did not know until later that Cross had been shot. He stated that once he got outside, Glass and Rhone were already in car, so Robert got in the car with his wife and Curtis and left. ¶4. At one point, Robert told law enforcement officers that he thought he shot his gun four times but that he did not think he shot Cross. Later, he said that he did not know how many shots he fired. At the motion to suppress hearing, Robert said he shot his gun toward the ceiling and toward the ground. In a tape-recorded statement to police, Robert said he told his wife in the car that night that he thought he shot Cross. Robert told law enforcement officers that a day or two after the incident he gave his gun to Al Ott to put it up and has not seen it since that time. ¶5. Rhone testified that he saw a total of eight to ten gunshots coming from both sides of the club. Contrary to Robert's statement, Rhone testified that when he got outside after the shooting, Robert and Glass were already getting in the car, a Mazda Protege. Rhone said he did not hear anything after the shooting from Robert that would link Robert to the shots fired in the club. ¶6. Debra Boyd testified that she was standing behind the bar in the club and that she went to the front of the dance floor once the fighting began. Boyd said there were two or three guys fighting and that she saw more than five or six shots coming from one direction. ¶7. Curtis testified that Robert, Rhone and Glass all came outside to the Mazda Protege before she heard gunshots. She said Robert got a black gun from the trunk of the car, and then the guys went back inside. Curtis was the only witness to testify seeing Robert with a gun. She said she heard two shots outside also and that Mary Ann started the car and was leaving when Robert got out of the car with Rhone and Glass and got in the car with them. Curtis heard Robert tell Mary Ann that Glass beat up Cross. She also said Robert bragged about shooting Cross and said his gun held ten bullets but there were none left. She never heard Robert state the number of times he shot Cross. ¶8. Cross went to the club with Hill the night he was killed. Hill testified that the two had been together since the night before and neither of them had a firearm or weapon of any kind nor did they plan to fight anyone. Hill saw two males fighting but did not know that Cross was one of them. The third time the lights went out, Hill heard a gunshot and could see fire from the bullet. He said he heard four gunshots inside and they were aimed downward and that he heard shots outside too. Hill went back inside after the shooting ceased to find Cross lying on the floor with two nurses trying to revive him. On cross-examination, Hill admitted to telling police officers in an interview that he heard five or six shots inside the club and two or three outside.",facts
+568,6342554,1,1,"Andres Surber was convicted of first degree murder, use of a firearm to commit a felony, and possession of a firearm by - 322 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. SURBER Cite as 311 Neb. 320 a prohibited person. On appeal, Surber challenges the district court’s conclusion that he was competent to stand trial. Surber also assigns as error that the court erred in admitting certain evidence, because it was obtained in violation of his Fourth Amendment rights. We affirm.",introduction
+569,2802574,1,4,"Dr. Weingrad argues that there is nothing in the Third District’s onesentence affirmance that provides this Court with jurisdiction under article V, section 3(b)(3), Florida Constitution. We disagree. Under article V, section 3(b)(3), of the Florida Constitution, this Court has jurisdiction to review a decision of a district court of appeal that “expressly and directly conflicts with a decision of another district court of appeal or of [this Court] on the same question of law.” Art. V, § 3(b)(3), Fla. Const. The decision -4- on review is not merely an unelaborated affirmance, but specifically relies on, and cites to, the decision in Miles I. Miles II, 103 So. 3d at 260 (“Finding no conflict between our prior opinion in [Miles I], and the Supreme Court’s opinion in [Spiewak], we affirm.”). In Miles I, the Third District held that: Although the injury in the present case occurred in 2003, prior to the effective date of the amendment of section 766.118, because Appellees did not file their notice of intent to initiate litigation, file their complaint, or obtain a judgment prior to the enactment of the statute, they had at most a “mere expectation” or a prospect that they might recover damages of an indeterminate amount at an unspecified date in the future. The Appellees had no vested right to a particular damage award and thus suffer no due process violation with the application of the caps statute to their cause of action. Miles I, 29 So. 3d at 416. Thus, Miles I and Miles II require that, in order to establish that a right vested before the statute became effective, a claimant bringing a personal injury action must have previously noticed his or her intent to bring such an action. Contrarily, in Raphael, the Fourth District held that a “cause of action in a medical malpractice case accrues at the time the malpractice incident occurs.” Raphael, 18 So. 3d at 1157. Because a plaintiff has a vested right to this cause of action, and retroactive application of the noneconomic damages cap would impair this vested right, the Fourth District held that retroactive application was -5- impermissible. Id. at 1158. This conflict was recognized by the Third District. See Miles I, 29 So. 3d at 415. Because the Third and Fourth Districts have reached different conclusions on the same question of law, this Court has jurisdiction to resolve this important legal conflict regarding the requirements for bringing personal injury actions stemming from medical malpractice under Florida’s negligence law. Merits To resolve the issue before us, we necessarily address the conflict that exists between the Third and Fourth District Courts of Appeal on this issue. In Raphael, the Fourth District concluded that the Legislature enacted section 766.118 with a clear intent to allow “the retroactive application of a new statute for ‘bad faith actions against insurers.’ ” Raphael, 18 So. 3d at 1156.2 Relying on State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995), the district court posited that whether section 766.118(4) is “substantive or procedural in nature is [the] issue that [was] determinative of [the] case.” Raphael, 18 So. 3d at 1156. Citing to Clausell v. Hobart Corp., 515 So. 2d 1275 (Fla. 1987), the Raphael court stated that when a cause of action has not accrued “no one has a vested right in the common law, which the Legislature may substantively change 2. The medical malpractice at issue in Raphael occurred on April 10, 2003. -6- prospectively.” Raphael, 18 So. 3d at 1157. However, the Raphael court noted that the cause before it was reminiscent of the circumstances in Alamo Rent-A-Car v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994), in which this Court held that it is presumed that substantive statutes will not retrospectively apply to “impair or destroy existing rights.” Raphael, 18 So. 3d at 1156. Thus, the Raphael court concluded that section 766.118(4) may not be “retroactively enforced to impair the appellant’s vested rights.” Id. at 1157. The court further concluded that “[t]he cause of action in a medical malpractice case accrues at the time the malpractice incident occurs.” Id. at 1157-58 (citing § 95.111(4)(b), Fla. Stat. (2002); Patient’s Comp. Fund v. Scherer, 558 So. 2d 411, 414 (Fla. 1990)). Accordingly, the Fourth District reversed the trial court’s judgment and remanded the case for further proceedings consistent with its holding that the retroactive application of section 766.118(4) was an impairment of the appellant’s substantive rights which accrued and vested on a date prior to the effective date of the statute. Id. at 1158. After the Fourth District issued its decision in Raphael, the Third District reached the opposite conclusion. In Miles I, the Third District determined that because the statutory provision was substantive in nature, its analysis would turn on the questions of legislative intent and constitutionality. Miles I, 29 So. 3d at 410. Indeed, the Third District determined that the Legislature’s intent to apply -7- section 766.118 retroactively was clear and unambiguous. Id. Furthermore, the Third District specifically rejected Miles’ reliance on Raphael, which rejected retroactive application of a statute that lacked legislative language that provided for retroactive application. Id. at 410-11. The Third District acknowledged that precedent from this Court “has refused to apply the statute retroactively if it impairs vested rights, creates new obligations or imposes new penalties.” Id. at 411 (citing Laforet, 658 So. 2d at 61). The Third District concluded, however, that our decision in Clausell is controlling on the subject of whether retroactive application of a statute is constitutional. Id. Consequently, the Third District criticized the Raphael court for ignoring our holding in Clausell. Id. at 415. Accordingly, the Third District held: Although the injury in the present case occurred in 2003, prior to the effective date of the amendment of section 766.118, because Appellees did not file their notice of intent to initiate litigation, file their complaint, or obtain a judgment prior to the enactment of the statute, they had at most a “mere expectation” or a prospect that they might recover damages of an indeterminate amount at an unspecified date in the future. The Appellees had no vested right to a particular damage award and thus suffer no due process violation with the application of the caps statute to their cause of action. We therefore reverse the trial court’s order denying Dr. Weingrad’s motion to apply the statutory cap to the Appellees’ noneconomic damages. Id. at 416. Both the Third District and the Fourth District cited our decisions in Old Port Cove Holdings, Inc. v. Old Port Cove Condominium Association One, Inc., -8- 986 So. 2d 1279 (Fla. 2008), and Metropolitan Dade County v. Chase Federal Housing Corporation, 737 So. 2d 494 (Fla. 1999), as establishing the analysis necessary when courts must determine if a given statute may be retroactively applied. See Miles I, 29 So. 3d at 409 (“Determining whether a statute may be retroactively applied requires consideration of whether the statute expresses the intent for retrospective application and if so, whether the retroactive application is constitutional.”); Raphael, 18 So. 3d at 1155 (same proposition). However, the Third District determined that our holding in Clausell is controlling on the subject of a litigant’s vested rights. Miles I, 29 So. 3d at 411. We find that the Third District misunderstood our holding in Clausell by stating that “the retroactive application of a statute did not violate due process because the plaintiff had no vested right.” Id. at 409. Instead, we determined that Clausell “had no vested right in his cause of action,” because the statute that predated his cause of action was temporarily invalidated by our decision in Battilla v. Allis Chalmers Manufacturing Co., 392 So. 2d 874 (Fla. 1980); however, the statute was subsequently reinstated when we receded from Battilla in Pullum v. Cincinnati, Inc., 476 So. 2d 657 (Fla. 1985). Clausell, 515 So. 2d at 1276. Therefore, in Clausell, we were not addressing the retroactive application of a substantive statute that affected the litigant’s vested right in a cause of action. See Miles I, 29 So. 3d at 417 (Cope, J., dissenting) (“The majority opinion relies on -9- [Clausell], but that case is inapplicable. Clausell involved the retroactive application of a judicial decision, not the retroactive application of a statute.”). Thus, we necessarily agree with the conclusion drawn in Raphael that was premised on our precedent in Scherer, stating that “[t]he cause of action in a medical malpractice case accrues at the time the malpractice incident occurs.” Raphael, 18 So. 3d at 1157-58; cf. Spiewak, 73 So. 3d at 128. Therefore, we approve Raphael and disapprove the rationale in Miles I and quash the decision in Miles II. The facts in the present case show that Miles underwent the unnecessary surgical procedure in January 2003, which has been undisputedly adjudged as malpractice by Dr. Weingrad. Notably, section 766.118 became effective on September 15, 2003. Therefore, Miles’ cause of action accrued more than seven months before the “legislation capping noneconomic damages in medical malpractice actions went into effect.” Miles I, 29 So. 3d at 408. Our precedent establishes that, generally, a litigant’s substantive and vested rights may not be infringed upon by the retroactive application of a substantive statute. Laforet, 658 So. 2d at 61 (“The general rule is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively. . . . Even when the Legislature does expressly state that a statute is to have retroactive application, this Court has - 10 - refused to apply a statute retroactively if the statute impairs vested rights, creates new obligations, or imposes new penalties.” (citations omitted)). Accordingly, we quash the decision entered below.",jurisdiction
+570,2074534,1,5,"For these reasons, we affirm the decision of the Family Court. The papers in this case may be returned to the Family Court.",conclusion
+571,2755737,1,1,"This case challenges the legal conclusion that the legislature lacks the authority to overrule Ford's no second chance rule because the rule is based on ccmstitutional principles of due process. We review such conclusions de novo. State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008). 4 State v. Jones (.John A., III), No. 89302··1",standard of review
+572,2162037,1,3,"At the outset, appellee contends, but does not strenuously press the argument that the trial court, and in turn this court, is without jurisdiction to entertain this appeal inasmuch as the trial court did not properly have jurisdiction to decide the subpoena enforcement issue. [6] The government argues in its brief that appellant's subpoena is directed at a federal employee and seeks information that the employee learned only in this capacity. Thus, the government argues, the matter is inherently an action against the United States which is protected by sovereign immunity from state court review of its decision to resist the subpoena. Brief of Appellee, p. 20 note 14, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462, 467-69, 71 S.Ct. 416, 95 L.Ed. 417 (1951); Houston Business Journal v. Office of the Comptroller, 86 F.3d 1208, 1211-12 & n. 3 (D.C.Cir.1996); accord Edwards v. Department of Justice, 43 F.3d 312, 316, 317 & n. 6 (7th Cir.1994); Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.1989); Sharon Lease Oil Co. v. F.E.R.C., 691 F.Supp. 381, 383 (D.D.C.1988). See 47 C.F.R. § 0.463 which prohibits any F.C.C. employee from responding to a subpoena for records or testimony concerning F.C.C. affairs unless expressly authorized to do so by the agency. According to appellee, this enforcement action could only have been brought in federal court. We decline to decide the question whether the trial court had jurisdiction to decide the motion to quash the subpoena. The order at issue in this case was a minimal exercise of jurisdiction as distinguished from an order to enforce the subpoena or to sanction Mr. Andary or compel production of F.C.C. documents. Moreover, appellee's effort to obtain protection from the Superior Court from its own subpoena was in response to appellant's invocation of the jurisdiction of the trial court by service of the subpoena upon Mr. Andary. Superior Court rules permit appellant to do this without prior court authorization. [7] Super. Ct. Civ. R. 45. Appellant therefore issued a command of the Superior Court that, without more, required Mr. Andary to appear at a deposition and to produce certain documents unless he objected and obtained protection from this obligation from the issuing court. Rule 45(c)(3)(A)(iii). An issue left undecided by this opinion, then, is whether the trial court's order granting the motion to quash is qualitatively any different from one declaring that as an Article I federal court, it lacked jurisdiction over the person of an officer of the federal government. Where, as here, the answer to a jurisdictional issue is a very complicated one and where the merits of the underlying claim [the motion to quash] can easily be resolved, this Court has held that we do not need to consider the jurisdictional issue. Stevens v. Quick, 678 A.2d 28, 31 (D.C.1996). See also, Norton v. Mathews, 427 U.S. 524, 532, 96 S.Ct. 2771, 49 L.Ed.2d 672 (1976) (the Supreme Court declined to resolve difficult questions of jurisdiction when the case could alternatively be resolved on the merits,) but see Steel Co. v. Citizens for a Better Environment, ___ U.S. ___, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).",jurisdiction
+573,3167553,1,1,"¶1 Rent-A-Center West, Inc. appeals the Utah State Tax Commission’s decision declaring Rent-A-Center’s optional liability waiver fee subject to Utah sales and use tax. We reverse.",introduction
+574,1621539,1,2,"¶ 6. In Reaves v. Randall, 729 So.2d 1237 (Miss.1998), this Court adopted a substantial compliance standard with respect to the notice of claim requirements of the Tort Claims Act. To the extent that Reaves and the opinion in this case conflict with City of Jackson v. Lumpkin, 697 So.2d 1179, 1182 (Miss.1997), Carpenter v. Dawson, 701 So.2d 806, 808 (Miss.1997), and Holmes v. Defer, 722 So.2d 624 (Miss. 1998), which require strict compliance, Lumpkin, Carpenter, and Holmes are hereby overruled. ¶ 7. In Pruett v. City of Rosedale, 421 So.2d 1046, 1052 (Miss.1982), this Court abolished the judicially created doctrine of sovereign immunity for general tort liability, leaving the Legislature the responsibility to place limitations on governmental liability within constitutional limits. Presley v. Mississippi State Highway Comm., 608 So.2d 1288, 1291 (Miss.1992)(plurality opinion). ¶ 8. Many other jurisdictions having notice of claim requirements as a prerequisite to filing suit against the state or political subdivisions have adopted substantial compliance in some form. Most of those have determined that the purpose of such a notice requirement is to give the governmental entity an opportunity to investigate the claim and notifying the appropriate agencies or officials of dangerous conditions or inappropriate conduct to allow for corrective or remedial measures, as well as to permit or encourage amicable settlement with the citizenry and/or prepare a defense to the claim. Felder v. Casey, 487 U.S. 131, 142-43, 108 S.Ct. 2302, 2309, 101 L.Ed.2d 123, 140-41 (1988); Blohm v. Emmet County Bd. of County Road Comm., 223 Mich.App. 383, 565 N.W.2d 924, 926 (1997); Collier v. Prater, 544 N.E.2d 497, 498 (Ind.1989); Fritsch v. St. Croix Central School Dist., 183 Wis.2d 336, 515 N.W.2d 328, 331 (Ct.App.1994). ¶ 9. However, such a requirement should not act as a barrier allowing the state to defeat totally the purpose of the act itself. Admittedly, the act is intended to limit the government's liability for tortious conduct, just as the Worker's Compensation Act was intended to limit the exposure of Mississippi employers, but it is also intended to allow for the orderly administration of legitimate claims against governments for such tortious conduct, and like the workers' compensation act, serves as an exclusive remedy for such claims. As the Indiana Supreme Court stated in Collier, supra ., The purpose of the notice statute being to advise the city of the accident so that it may promptly investigate the surrounding circumstances, we see no need to endorse a policy which renders the statute a trap for the unwary where such purpose has in fact been satisfied. Thus, a notice is sufficient if it substantially complies with the content requirements of the statute. What constitutes substantial compliance, while not a question of fact but one of law, is a fact-sensitive determination. In general, a notice that is filed within the [requisite] period, informs the municipality of the claimant's intent to make a claim and contains sufficient information which reasonable affords the municipality an opportunity to promptly investigate the claim satisfies the purpose of the statute and will be held to substantially comply with it. Collier, 544 N.E.2d at 498-99 (emphasis in original, citations omitted & quoting Galbreath v. City of Indianapolis, 253 Ind. 472, 255 N.E.2d 225, 229 (1970)). ¶ 10. In this case, the Town of Shubuta asserts two deficiencies in the form signed by Carr shortly after her fall. First, they allege that the notice was not delivered to the mayor, and second, that the notice did not make a claim for liquidated damages. In actuality, Carr went to the office of the city clerk. The Town of Shubuta, through the clerk, provided her the city's form for filing a claim. Carr was then assisted by the clerk in filling out the city's form, and, after dating and signing it, left the form with the clerk who in turn processed same and forwarded it to the MMLP. There is no dispute that the mayor was made aware of the claim and even participated directly in the investigation of the scene independently and in collaboration with the MMLP. ¶ 11. Furthermore, at the time Carr filled out the form, she listed all of her injuries in the appropriate space provided in the city's form and gave the name of her primary physician. At the time she executed the form, there is no way she could have possibly known a liquidated amount of damages as she was still being treated for her injuries, nor was she represented by counsel. It is also important to note that the city's form does not provide a blank for liquidated damages other than for an estimate for property damage. There is no dispute that the completed form disclosed the date and time of the accident, the nature/cause of the accident, persons/witnesses involved, and the exact location of the accident. There is also no dispute that the insurer was given a medical release to obtain Carr's medical records and did obtain those records in a timely fashion. Carr, and later her attorney, appear to have cooperated fully with the city and then its insurer throughout the investigation and settlement discussions. The record indicates that Carr and her attorney were contacted directly by the insurer and dealt almost exclusively with the insurer. Then, after settlement negotiations broke down approximately one year and ninety days after the fall, and after Carr filed suit and discovery was completed, Shubuta and its insurer chose to avail themselves of the protection afforded by Carr's alleged failure of Ms. Carr to strictly comply with the notice of claim provisions of § 11-46-11. They are estopped. ¶ 12. In a similar case, the Wisconsin Court of Appeals applied the doctrine of estoppel to sustain such a claim where strict compliance with the notice requirements of that state's tort claim act was lacking. In Fritsch v. St. Croix Central School Dist., 183 Wis.2d 336, 515 N.W.2d 328 (Ct.App.1994), Fritsch, a schoolteacher, was injured in an accident in which her vehicle was struck by a school bus. She subsequently missed several days of work and, upon her return, presented her immediate superior with a list of her damages and copies of medical bills. She was instructed to submit her damage claim directly to the school district's insurer. The insurer provided her with a more detailed accident and damage claim form which she completed and returned to the insurer. The insurer later paid a portion of her property damage claim while denying other portions. She was told that her claim for lost wages and medical bills would be recalculated and included in a final settlement after the completion of her medical treatment. As she was not represented by counsel, she dealt directly with the insurer, and shortly before the expiration of the statute of limitations, contact was discontinued, and just a few days short of the expiration of the statute, she filed a complaint for damages. The trial court dismissed the action on motion for summary judgment on the basis of her failure to comply with that the Wisconsin notice of claim provisions. On appeal the Wisconsin Court of Appeals said: The purpose of § 893.80, STATS., is to afford the government an opportunity to compromise and settle the claim without litigation. Figgs v. Milwaukee, 121 Wis.2d 44, 53, 357 N.W.2d 548, 553 (1984). There is nothing in § 893.80 to suggest that the legislature intended any different or additional purpose for this statute. Figgs, 121 Wis.2d at 53-54, 357 N.W.2d at 553. Substantial, not strict, compliance with the notice statute is required. Id. at 55, 357 N.W.2d at 554. We conclude that a series of various bills and statements do not amount to a claim as required by § 893.80(1)(b). However, we agree with Fritsch that the school district, and thereby Wausau Insurance, are estopped from using the itemized claim of relief sought requirement as a defense. Estoppel is action or nonaction that induces another's reliance thereon, either in the form of action or nonaction, to his or her detriment. The trial court concluded that the school district and Wausau Insurance were not estopped from asserting § 893.80(1)(b), STATS, because their conduct was not inequitable or fraudulent. However, while inequitable or fraudulent conduct has to be established to estop a party from asserting a statute of limitations defense, notice of claim statute, like a notice of injury statute, is not a statute of limitation but imposes a condition precedent to the right to maintain an action. Mannino v. Davenport, 99 Wis.2d 602, 614, 299 N.W.2d 823, 828 (1981) (quoting Nelson v. American Emp. Ins. Co., 262 Wis. 271, 276, 55 N.W.2d 13,15 (1952)). Therefore, inequitable or fraudulent conduct does not have to be established. Although the doctrine of estoppel is not applied as freely against governmental agencies as it is in the case of private persons, they are not immune. DOR v. Moebius Print. Co., 89 Wis.2d 610, 638, 279 N.W.2d 213, 225 (1979). [W]e have recognized that estoppel may be available as a defense against the government if the government's conduct would work a serious injustice and if the public's interest would not be unduly harmed by the imposition of estoppel. In each case the court must balance the injustice that might be caused if the estoppel doctrine is not applied against the public interests at stake if the doctrine is applied. Id. at 638-39, 279 N.W.2d at 225-26[,] 515 N.W.2d at 331 (some citations omitted). ¶ 13. In this case, Carr and her attorney were dealing directly with the insurer until after the one year period for filing a notice of claim had expired. There is no dispute that settlement negotiations were ongoing during this period. Carr and her attorney may have justifiably believed that she had complied with the notice of claim requirements when she completed the claim form supplied by the city. Likewise, she could have reasonably presumed the notice was given to the mayor, and she was definitely aware that the MMLP had been notified and had investigated her claim. This reliance may be said to have been demonstrated by her failure to file an additional or amended notice letter prior to the expiration of the one year period for filing such. The Court has already stated: This Court has long stated that equitable estoppel is available for individuals against municipalities. Witherspoon v. City of Meridian, 69 Miss. 288, 295, 13 So. 843, 844 (1891). Equitable estoppel requires a representation by a party, reliance by the other party, and a change in position by the relying party. Izard v. Mikell, 173 Miss. 770, 774, 163 So. 498, 499 (1935). Westbrook v. City of Jackson, 665 So.2d 833, 839 (Miss.1995). Thus, the Town of Shubuta, as well as the MMLP, are estopped in this case from asserting that Carr gave inadequate notice. ¶ 14. Even though this Court now finds substantial compliance to be sufficient, we stress that substantial compliance is not the same as, nor a substitute for, non-compliance. The determination of substantial compliance is a legal, though fact-sensitive, question and is, therefore, necessarily decided on an ad hoc basis. ¶ 15. In this case, Carr provided Shubuta with all of the required information except a liquidated amount of damages, although she stated the extent of her injuries in adequate detail. She was given the form by a city employee and assisted in completing the form. Furthermore, once her damages were ascertainable, the adjuster was made aware of same and actively pursued settlement with Carr and her attorney. It is not difficult to find in this case that Ms. Carr substantially complied with the notice of claim provisions of the act. ¶ 16. This case can be easily distinguished from City of Jackson v. Lumpkin, 697 So.2d 1179 (Miss.1997), where Lumpkin failed to submit any notice of claim other than copies of bills and invoices to a city employee; Holmes v. Defer, 722 So.2d 624 (Miss.1998) total failure to submit notice; and Carpenter v. Dawson, 701 So.2d 806 (Miss.1997), where a two-sentence letter was sent only to the city's insurance adjuster. These cases would fail even under substantial compliance standards. Carpenter, at 807-808. However, as stated previously, Lumpkin, Holmes, and Carpenter are hereby overruled to the extent the they require strict compliance rather than substantial compliance. ¶ 17. The notice of claim form signed by Ms. Carr a few days after her fall was a sufficient notice of claim under the substantial compliance standard now adopted by this Court. Thus, statute of limitations would have been tolled for the additional ninety-five days to allow the filing of her complaint. Therefore, Carr's lawsuit was timely filed. ¶ 18. The decision of the Court of Appeals is Reversed, and the case is Remanded to the trial court for proceedings consistent with this opinion. ¶ 19. REVERSED AND REMANDED. PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, JAMES L. ROBERTS, Jr., SMITH, MILLS AND WALLER, JJ., CONCUR.",analysis
+575,2566966,1,1,"¶ 1 We granted certiorari to review the court of appeals's ruling that the reasonable doubt instruction used in the trial of German Cruz Reyes was improper because it did not specifically conform to the three-part reasonable doubt instruction upheld by this court in State v. Robertson, 932 P.2d 1219 (Utah 1997), overruled on other grounds by State v. Weeks, 2002 UT 98, ¶ 25 n. 11, 61 P.3d 1000. The State asks us to overrule Robertson. We also agreed to take up Mr. Reyes's cross-petition, which challenges the court of appeals's determination that the trial court's refusal to reread preliminary jury instructions at the close of evidence was harmless error. Because we share the court of appeals's misgivings about the wisdom of Robertson, we reverse the court of appeals's holding on the reasonable doubt instruction and announce a safe harbor reasonable doubt instruction. We also affirm, on other grounds, the court of appeals's decision on the timing of the jury instructions.",introduction
+576,2240169,1,1,"When reviewing the sufficiency of the evidence, we look only to the probative evidence supporting the verdict and the reasonable inferences therefrom to determine whether a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. If so, we will affirm the conviction. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. Appellant argues that the State failed to prove that the substance sold to Kelly was heroin. Chemical analysis of the bindle showing it to contain heroin would constitute direct proof of this element of the crime and has been found to be sufficient. Hunt v. State (1984), Ind., 459 N.E.2d 730. Of course, such proof was impossible in this case because Kelly had swallowed the evidence. Even though the contraband is not recovered, the identity of a drug can be proven by circumstantial evidence. Warthan v. State (1982), Ind., 440 N.E.2d 657; Copeland v. State (1982), Ind. App., 430 N.E.2d 393. The type of circumstantial evidence usually contemplated is the testimony of someone experienced with the drug who identifies the substance. See e.g., Thorne v. State (1973), 260 Ind. 70, 292 N.E.2d 607. In fact, convictions supported by circumstantial evidence have relied on the testimony of past drug users who actually ingested the drug in question and identified it based on its effects. Id. To affirm a conviction based on this type of circumstantial evidence, the evidence must consist of the opinion testimony of someone sufficiently experienced with the drug. Slettvet v. State (1972), 258 Ind. 312, 280 N.E.2d 806. This does not mean that proof by circumstantial evidence is within the exclusive realm of experienced drug users; other circumstantial evidence may be sufficient. Visual identification of the drug alone, though not per se insufficient, has never been held sufficient to support a conviction in Indiana. Copeland, 430 N.E.2d 393. In those cases finding visual identification insufficient, the unidentified substance had no distinctive appearance. Warthen, 440 N.E.2d 657; Copeland, 430 N.E.2d 393. In this case, the officers identified the distinctive appearance of the substance as resembling a bindle of heroin. In addition to this visual identification, the conviction is supported by Kelly's statement that the heroin was purchased for his girlfriend and even more substantially supported by Clifton's possession of seven similar bindles, all containing heroin. The jury could reasonably infer that the bindle swallowed by Kelly also contained heroin. The verdict is supported by sufficient evidence.",sufficiency of the evidence
+577,2533958,1,5,"Typically, an NDAHD hearing officer has jurisdiction over a workers' compensation claim only if the claimant files a timely request for a hearing. [6] Statutory periods for requesting administrative review of workers' compensation determinations are mandatory and jurisdictional. [7] Under NRS 616C.315(3)(b), a request for a hearing is timely when it is filed with the NDAHD within seventy days of the date that the insurer mailed notice of its determination. [8] The Legislature included this provision to shorten the overall administrative process of a workers' compensation claim. [9] In Partlow-Hursh, this court held that a notice of appeal from a hearing officer's decision is filed when the appeals officer receives it, not when it is mailed. [10] The language in the statute addressed in Partlow-Hursh is similar to that in NRS 616C.315(3); both statutes provide that the required document be filed within a specified time period. Moreover, we have previously relied on Partlow-Hursh in concluding that the filing requirement under NRS 616C.315(3) is mandatory and jurisdictional. [11] We see no reason to interpret the filing requirements under the two statutes differently; a request for a hearing is filed when the hearing officer receives it, not when it is mailed. Failure to file a request for a hearing within the statutory period is excused only if the claimant proves by a preponderance of evidence that he or she did not receive the notice of determination and the forms necessary to request a hearing. [12] Seino argues that our interpretation of NRS 616C.315 should be similar to the filing requirements of NRAP 25, which provides that documents filed in this court are filed when mailed. In Partlow-Hursh, this court stated that former NRAP 25 was analogous to administrative filing requirements. [13] At that time, NRAP 25(a) specifically stated that filing was timely when received by the clerk. NRAP 25 was amended in 1988 and currently deems a filing timely when mailed to the clerk. Consequently, NRAP 25 is no longer analogous to administrative filing requirements. Furthermore, the NRAP is not applicable to administrative proceedings. [14] Accordingly, we decline to overrule Partlow-Hursh's rule that administrative workers' compensation appeals are filed when received, not mailed. In this case, the NDAHD did not receive Seino's request for a hearing within the seventy-day period, and Seino conceded that she promptly received both the denial letter and the request for hearing form. Therefore, the appeals officer's conclusion that Seino's request was untimely under NRS 616C.315 is based on substantial evidence.",jurisdiction
+578,860895,1,1,"The instant appeal represents the fourth appeal before this Court involving litigation between Steven Varvaris and his sister and brother-in-law as well as the continuation of a lengthy family feud between said parties. The earlier cases of Kountouris v. Varvaris, 476 So.2d 599, 607 (Miss. 1985), In Re Will and Estate of Varvaris, 477 So.2d 273 (Miss. 1985), and Matter of Estate of Varvaris, 528 So.2d 800 (Miss. 1988) dealt with issues arising from the last will and testament of Emanuel Varvaris, the father of Steven and Jean. The record indicates that the parties in the present case have also litigated extensively in federal courts as well as in courts in Greece and Turkey. The present appeal involves allegedly fraudulent actions on the part of Jean occurring in 1967 and 1969 in connection with the conveyance of real property located in Greece, as well as the alleged conversion of personal property and an allegedly malicious civil prosecution both of which, Varvaris alleges, occurred in Greece in 1993. The circuit judge dismissed all of the aforementioned causes of action based on the running of the statute of limitations or based on the judge's declining to exercise jurisdiction over the causes of actions arising in Greece. This Court affirms. STATEMENT OF THE CASE AND FACTS Steven Varvaris filed suit in the Circuit Court of Hinds County on March, 1993 against his sister, Jean Kountouris and her husband, Mike Kountouris. Varvaris alleges in his petition that his sister and brother-in-law fraudulently concealed a cause of action arising from the transfer of a quitclaim deed to two properties located in the District of Hora, Patmos, Greece. The deed was prepared in 1967 and transferred to Varvaris in 1969 in Jackson, Mississippi in exchange for properties located in the district of Grikou, Patmos, Greece and twenty-five thousand dollars in cash. Varvaris alleges that his sister did not actually own the properties in question and thus had no title to transfer, but he nevertheless notes that he retains full ownership in the two properties today based upon adverse possession and having recorded the deed in 1983. Indeed, the properties have appreciated dramatically in value since 1969 up to a current value of approximately $500,000, and Varvaris notes that Jean filed an unsuccessful lawsuit in Greece in 1993 in order to set aside said conveyance. The unsuccessful Greek civil suit gives rise to Varvaris' second cause of action against his sister and her husband: a malicious civil prosecution cause of action. Varvaris also asserts a conversion cause of action resulting from an alleged incident in Greece in 1993 in which, he contends, Jean and Mike stole personal property of his worth in excess of $75,000.00 from his residence in Patmos, Greece. In response to a Miss. Rules of Civil Proc. Rule 12 motion from Jean and Mike, the circuit judge dismissed all three of Varvaris' causes of action. The judge declined to exercise jurisdiction over the conversion and malicious prosecution causes of action, based on the premise that said actions were in current litigation in Greece and given that said actions would require the application of Greek law and would necessitate the calling of Greek witnesses. The judge dismissed the fraudulent concealment cause of action based upon a ruling that the statute of limitations had run. Varvaris filed a timely appeal from said rulings. LAW I. The lower court judge erred in refusing and depriving Appellant's request and right to a court hearing with a court reporter present and depriving and denying appellee to have witnesses as well as appellant's themselves testify to give evidence under oath. Varvaris' entire argument with regard to his first point of error is as follows: It is plaintiff's position and agreed upon by defendant's own attorney, Paul Neville, that once a plaintiff requests a hearing with a court reporter, as well as calling relevant witnesses to testify for plaintiff, the lower court judge should have granted plaintiff's request and for the lower judge to deny and deprive plaintiff of his request is an error on his part and this exhibits bias and prejudice against the plaintiff. Varvaris' complains that the trial judge did not allow him to finish his oral argument before ruling against him, and that he was forced to conclude his oral argument in writing. Varvaris cites no authority for the proposition that the trial judge had no discretion to cut short his argument, and he requests no remedy from this Court in this regard. Varvaris merely asserts that the trial judge's failure to grant said hearing exhibits bias against him. This Court need not consider such a point of error lacking in authority, and this point of error is overruled. II. The lower court's ruling that the statute of limitations on issue two, trover and conversion and malicious prosecution, even though that both issues occurred in 1993, that the statutes of limitations were not active and expired. In his second point of error, Varvaris appears to misconstrue the ruling of the trial court below. Varvaris appears to be under the impression that the trial court ruled that his trover/conversion and malicious prosecution actions arising from events which allegedly occurred in Greece in 1993 were barred by the statute of limitation. In fact, the trial court made no such ruling, but rather declined to exercise jurisdiction over these matters. Accordingly, this point of error represents an appeal from a non-existent ruling and is overruled. III. The lower court erred and grossly misconstrued and wrongfully misinterpreted [sic.] Mississippi statute 15-1-67, Effect of Fraudulent Concealment of Cause of Action involving appellant's first issue, that the time accrues and commences from day one the concealed fraud occurred rather from day one the fraud was discovered with property and due diligence on appellant's part. Varvaris sued Mike and Jean based upon a fraudulent concealment cause of action under Mississippi law. Miss. Code Ann. § 15-1-67, Effect of fraudulent concealment of cause of action provides that: If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered. It is Varvaris' contention that Jean and Mike Kountouris committed fraud against him in 1967 and 1969 by purporting to quitclaim to him two parcels of real property located in the District of Hora, Greece which they did not actually own and thus had no right to convey. Varvaris asserts in his complaint that his mother, Kaliope, had briefly possessed the home in the Hora District in Greece, but he asserts that she did not legally own said property. Varvaris alleges that a Ms. Christalis had gained ownership of the Hora property by adversely possessing said property between 1937 and 1963, but that the Kountorises promised her $1,000 in 1963 if she agreed to not formally pursue her adverse possession claim against them. Thus, Varvaris contends that the Kountorises knew beginning in 1963 that neither parent legally owned either of the two properties in the District of Hora. Varvaris notes that, in 1969, Jean and her father Emanuel Varvaris transferred a quitclaim deed in Jackson, MS conveying the two properties in the Hora District to Steven Varvaris in exchange for the title to two properties in the district of Grikou and twenty-five thousand dollars. The present appeal arises from the granting of a Miss. Rules of Civil Proc. Rule 12 motion to dismiss filed by Jean and Mike in lieu of an answer to Varvaris' petition. The standard of review for this Court is to determine whether, accepting the allegations in Varvaris' complaint as true, it appears beyond doubt that Varvaris could not prove any set of facts under which he would be entitled to relief. Overstreet v. Merlos, 570 So.2d 1196 (Miss. 1990). This Court initially notes that it appears questionable whether Mississippi law, rather than Greek law, should apply to the present cause of action at all. In Kountouris v. Varvaris, this Court remanded to the trial court for a consideration of whether Greek law should apply, in spite of the fact that both parties involved urged that Mississippi law be applied. Kountoris, 476 So.2d at 607. Given that the present dispute centers around alleged fraud concerning real property located in Greece, it appears likely that Greek law should apply and that Varvaris should not be able to maintain the concealment fraud cause of action under Mississippi law at all. This Court need not make a holding in this regard, however, given that it is clear that Varvaris will be unable to establish a concealment fraud cause of action, even assuming that Mississippi law were held to apply. One glaring area in which Varvaris' cause of action is lacking is with regard to any possible theory of damages. Varvaris alleges that both the real estates were in full possession of plaintiff, Steven Varvaris, from 1969-1993 for over 24 years and lawful title acquired by Varvaris by recordation of the 1969 Sales Deed in May of 1983. Thus, Varvaris alleges that he was defrauded by being sold a quitclaim deed to property not owned by the vendors, but he nevertheless asserts that he validly owns said property based upon both Greek law of adverse possession and upon the recording of the quitclaim deed in 1983. Accepting the facts in the petition as true, it appears that the allegedly fraudulent conveyance of the Hora properties was highly beneficial to Varvaris, given that Varvaris owns this property to this date and given that this property has dramatically appreciated in value. Indeed, Varvaris' complaint notes that Jean unsuccessfully filed suit in Greece in 1993 to set aside the conveyance. The following excerpt from Varvaris' petition is illustrative as to both the personal and vindictive nature of the current dispute as well as to the fact that Varvaris currently owns the Hora properties in question: From the above, my insane and criminal sister and defendant, Jean Kountoris, alleges in her suit of 1993 ... that my brother took advantage of my youth in 1969 and her age then was 43 years old, and inexperience and induced me to convey the properties on July 8, 1969. The complete idiotic, outrageous, scandalous, false, bogus, and fraudulent allegations of my sister would stagger even the imagination of an idiot. From day one my sister and defendant alleges a fantasy, and yet the same idiot, waits for over 24 years, realizes that the same property is worth over $500,000.00 and now wants to claim it back ... Varvaris' petition is thus internally inconsistent in that he repeatedly notes his full ownership rights in the Hora properties quitclaimed to him, yet he claims that his sister defrauded him by purporting to convey property which she did not own. The other area in which Varvaris' petition is lacking is with regard to a coherent theory as to which actions by Jean and Mike subsequent to the alleged actual fraud in 1967 and 1969 served to conceal the alleged fraud. Varvaris merely cites the black letter law applicable to concealment fraud and asserts that he will establish a factual basis for said legal theory at trial. Varvaris asserts that he first learned of the fraud in 1993, but his petition leaves it unclear as to the manner in which he came to said realization. The suit filed by Jean in Greece in 1993 appears to have contended that she had a valid title to the property in question, but that she was induced by Steven to sell her said property based on her youth and inexperience. Given that Varvaris recounts at great length the factual basis for every past and present grievance he has against Jean, the absence of any factual basis in the petition supporting his citations of black letter law is quite conspicuous. It appears to this Court that Varvaris is merely using the pretext of a concealed fraud in order to maintain a highly doubtful cause of action which occurred several decades ago. Accepting the facts in Varvaris' petition as accurate, it appears beyond doubt that he will be unable to prove any set of facts under which he would be entitled to relief, even assuming that Mississippi law should apply to the present dispute. Accordingly, this Court concludes that the circuit judge correctly dismissed the present cause of action and said dismissal is accordingly affirmed. IV. The lower court erred by ruling that all three issues of appellant's occurred only in the foreign country of Greece and in fact, with the exception of the second issue of trover and conversion, all the events of the other two issues occurred only in the city of Jackson, county of Hinds, state of Mississippi and agreed even by appellee's attorney, Paul Neville. This point of error once again misconstrues the ruling of the trial court below in part, given that the trial court did not contest that the alleged concealed fraud cause of action arose in part in the United States. The trial court dismissed the concealed fraud cause of action based on the fact that said cause of action was barred by the statute of limitations. There is a valid issue as to whether Greek law should control the allegations in the present case, but this issue need not be addressed given that Varvaris' complaint fails to state a claim upon which relief might be granted. V. In conformity with C.J.S. statutes 89 and 90, jurisdiction and venue, respectively, provide that a plaintiff may institute a civil action in one state or country and such action may be brought in any county of jurisdiction over the parties can be obtained, as well as on conflict of issues, most jurisdiction have rejected the Lex Loci Delicto and apply the law of the state having the greatest interest on the issue in question of liability for interfamily torts as the state of Louisiana Supreme Court correctly ruled in Jagers v. Royal Indemnity Co., 276 So. 2d 390 (LA 1973). VI. The lower court erred in ruling that the Mississippi court is not the proper forum on all three issues at bar and lacks jurisdiction of all subjects and entire subject matter on all three issues of appellants. VII. The lower court erred by ruling that all three issues of appellant are presently in litigation in Greece and in fact only one of the three was litigated and terminated in favor of the appellant and thus met one of the essential requirements of Mississippi law, that the case must have been abandoned or terminated in conformity with what this court ruled in Royal Oil Co. Inc. v. Wells, 500 So. 2d 439 (Miss. 1987) and Gaylord of Meridian, Inc. v. Sicard, 384 So. 2d 1042 (Miss. 1980). VIII. Appellee's attorney is constantly confused and relates the three issues of the appellant's at bar with another issue involving two wills and a power of attorney that has been litigated and terminated in both the courts of Mississippi and Greece, devising and conveying only one real estate situated in the District of Grikou, Patmos, Greece and has no relation to conveyed two real estates by one of the appellee's to appellant's personal property that occurred in 1993 and no litigation nor any civil action was commenced by anyone on appellant's two issues in any court in Mississippi nor in Greece. The remaining points of error are combined as they all either relate to the trial court's declining to exercise jurisdiction over Varvaris' remaining cause of action or else said points of error constitute mere points of argument which will be addressed herein. 1. Malicious prosecution. Varvaris's second cause of action dismissed by the trial court was a malicious prosecution cause of action for the civil suit filed in Greece by Jean. Varvaris cites no authority for a malicious prosecution action arising out of an unsuccessful civil suit filed in a foreign nation, and this is undoubtedly an issue of first impression for this Court. It should be readily apparent, however, that the trial court properly declined to exercise jurisdiction over this cause of action. Alleged abuses of the processes of the Greek court system are properly a subject for Greek courts, and Greek law presumably contains provisions for sanctions in the event of frivolous suits. The difficulties which would be encountered in attempting to decipher the Greek civil action would be extreme, and any abuses of the Greek civil court system are best dealt with by Greek courts. The trial court properly declined to exercise jurisdiction over the malicious prosecution cause of action. 2. Conversion The second cause of action over which the trial court declined to exercise jurisdiction was a conversion cause of action for an alleged incident in which, Varvaris asserts, Jean and Mike converted personal property of his located in Patmos, Greece. Specifically, Varvaris alleges that: On or about August 23, 1993, both the defendants, while in Patmos, Greece, did willfully and unlawfully, breaking and entering the residence of the plaintiff in the District of Hora, Patmos, Greece and took, absconded and did steal several valuables and antique icons valued more than $75,000.00, dating from 1796-1898 from the home of the plaintiff and converted the personal property of the plaintiff to them and at least two Greek American nationals vacationing in the island of Patmos are witnesses to the above episode of the two defendants and both living in the US can and will testify on behalf of the plaintiff at trial. The trial judge declined to exercise jurisdiction over this cause of action, ruling that: The Court further finds that all allegations involving events that occurred within the Republic of Greece, if they state a cause of action, would involve the application of Greek law, involve Greek witnesses and according to the complaint are in active litigation between the same parties in the Republic of Greece. Therefore, this Court in the exercise of its discretion declines to exercise any jurisdiction it may have over said cause of action. This Court held in Kountouris v. Varvaris that, while the courts of this State have the discretion to exercise jurisdiction over cases involving foreign disputes and requiring the application of foreign law, the exercise of such jurisdiction is not mandatory, and that whether the trial court will proceed in a case such as this is a matter committed to its sound and informed discretion. Id., 476 So.2d at 607-08. The Chancellor's stated reasons for declining to exercise jurisdiction over the conversion cause of action are, for the most part, sound. Varvaris points out that the alleged incident from which the conversion cause of action arises is not in fact in active litigation in Greece, and he states that unnamed American citizens witnessed the conversion and will be able to testify as to the allegations in his complaint. Nevertheless, the fact remains that the alleged conversion took place in Greece, and would likely involve the application of Greek law. This Court's experiences in Varvaris' previous appeals before this Court demonstrate the extreme difficulties which are encountered in attempting to apply Greek law in the courts of this State. In addition, this Court should not be expected to ignore the fact that Varvaris' petition reads more like a personal attack and a continuation of a personal vendetta than a civil lawsuit. The acrimonious and disjointed nature of the petition raises question as to whether the lawsuit is designed primarily to seek relief or to harass and waste the resources of Varvaris' family. Varvaris, who, though not an attorney, deems himself to have a legal expertise on estates, inheritances and property rights, second to none, in the state of Mississippi and the Republic of Greece,filed the present petition on a pro se basis, while Jean and Mike were forced to hire counsel to respond to the suit. Varvaris' petition repeatedly sets forth every alleged criminal act which he alleges Jean and Mike committed against him over the course of their family dispute, only to concede that none of these criminal patterns are intended for litigation nor anyone of the eight patterns is an issue in this suit and complaint of the plaintiff. The petition also recites Greek law only to summarize the relevancy of said law by pronouncing that none of the above is an issue in the present complaint and suit and an issue on appeal before the Greek Supreme Court. The petition thus serves to obscure the fact that no valid claim for relief is asserted in the present case by restating prior grievances which have been dealt with in previous cases. The trial judge can not be expected to ignore such strong indications that a suit might be designed for purposes of harassment in deciding whether to exercise jurisdiction over a given case. In addition, the trial judge correctly concluded that the present grievances would better be litigated in Greek courts applying Greek law. This Court accordingly holds that the trial judge did not abuse his discretion in declining to exercise jurisdiction over this cause of action and his ruling is affirmed in its entirety. JUDGMENT IS AFFIRMED. SULLIVAN, P.J., PITTMAN, BANKS, ROBERTS, SMITH AND MILLS, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY. LEE, C.J., NOT PARTICIPATING.",introduction
+579,2791805,1,3,"Based upon the foregoing, the judgment of the Superior Court is hereby AFFIRMED. 63 See 11 Del. C. § 9200 et seq. 64 Appellants’ Amended Opening Brief criticizes the Superior Court for not addressing “the plethora of cited deficiencies.” In particular, the Appellants state that they “cited no fewer than sixteen violations of the LEOBOR statute in their application for writ or [sic] mandamus,” and that the trial court “failed to address all but seven of these allegations in its order granting summary judgment.” Yet Appellants fail to address with any specificity any of the allegedly ignored “plethora of deficiencies” in their briefing before this Court. Moreover, the Superior Court’s order is more fairly read as having considered, but rejected, all of Appellants’ claims. See Brittingham I, 2011 WL 2650691, at  (“While Plaintiffs are guaranteed a range of protections under LEOBOR, they have not shown that Defendants violated those protections by failing to perform a ministerial duty. Nor have they shown any procedural or substantive due process violations. The Court finds no violation of Plaintiffs rights under LEOBOR or other reason to interject itself in the routine disciplinary proceedings of the GPD.” (footnote omitted)). 21",conclusion
+580,1440962,1,1,"[¶ 2] Scott G. Provencher and Jennifer A. Provencher were divorced in July of 2005. Neither party was represented by counsel during the divorce proceedings. The final divorce judgment awarded the parties shared parental rights and responsibilities and shared residential custody of their minor children, one of whom was born in 1993 and the other in 1996. The divorce judgment stated that [t]he parties agree that Jennifer Provencher is the biological mother and that Scott Provencher is the biological father of said child(ren). The incorporated child support order required no child support payments because the parties shared equal residential custody. [¶ 3] Subsequently, Scott decided he wanted to change the nature of his relationship with the oldest child who, as Scott had always been aware, was not in fact his biological son. Scott determined that ending his relationship with the boy was best because he and Jennifer had major differences of opinion regarding how to parent the boy, who suffers from ADHD and has behavioral problems, which caused conflict and stress for Scott and Jennifer. In June 2006, Scott moved for relief from the divorce judgment, pursuant to M.R. Civ. P. 60(b)(4), (5), and (6), arguing primarily that his acknowledgement of paternity of the boy was not sufficient to bind him legally and that the divorce judgment was, therefore, void. [1] [¶ 4] In March of 2007, the court denied Scott's motion for relief from judgment, finding that the language in the divorce judgment regarding Scott's paternity of the boy did not matter because father has a variety of meanings, and in this case, Scott was the boy's father in every way except genetically. The court found that Scott was the only father the boy had ever known, that Scott lived in the boy's household for eleven years, and that, until recently, the boy was unaware that Scott was not his biological father. The court concluded that it would not be in the child's best interest to grant the motion, and that even if Scott's legal obligation is only a financial one, that is still an important obligation that [Scott] has. [¶ 5] After a hearing in April of 2007, the Family Law Magistrate ( Carlson, M. ) ordered Scott to pay Jennifer, for the support of the boy, $69 per week for forty-nine weeks in retroactive child support and $70.89 per week in prospective child support. Scott then filed this appeal.",facts
+581,2277050,1,6,"To summarize, we hold that the trial court erred in not severing count eleven from the remainder of the indictment pursuant to Tennessee Rule of Criminal Procedure 14(b)(1). Not only did the method used in the alleged August offense fail to reveal a common scheme or plan when viewed with the remaining counts of the indictment, but the August offense would also have been inadmissible upon the trial of the other counts. However, because the jury acquitted the appellant of two of the three counts of child rape and because the evidence supporting the remaining count is more than sufficient to support a verdict of guilty beyond a reasonable doubt, we hold that the error is harmless. Therefore, the appellant's conviction and sentence is affirmed. Costs of this appeal are assessed to the appellant, Donald Terry Moore, for which execution shall issue if necessary. ANDERSON, C.J., DROWOTA, BIRCH, HOLDER, J.J., concur.",conclusion
+582,2066525,1,4,"¶ 12. The Fourth Amendment to the United States Constitution and Article I, § 11 of the Wisconsin Constitution establish the right of persons to be secure from unreasonable searches and seizures. [5] This court traditionally interprets the two constitutional provisions in concert. As a result, the development of search and seizure law in Wisconsin parallels the development of search and seizure law by the United States Supreme Court. State v. Andrews, 201 Wis. 2d 383, 389, 549 N.W.2d 210 (1996). Under both the Fourth Amendment and Article I, § 11 of the Wisconsin Constitution, probable cause must exist to justify an arrest. [2, 3] ¶ 13. It may be helpful at the beginning of our analysis to note the distinction between probable cause to search and probable cause to arrest. [6] Generally, the same quantum of evidence is required whether one is concerned with probable cause to search or probable cause to arrest. State v. Kiper, 193 Wis. 2d 69, 82, 532 N.W.2d 698 (1995) (citing 1 LAFAVE, Search and Seizure: A Treatise on the Fourth Amendment, § 3.1(b), at 544 (2d ed. 1987)). However, while the two determinations are measured by similar objective standards, the two determinations require different inquiries. Under an analysis of probable cause to search, the relevant inquiry is whether evidence of a crime will be found. See 2 LAFAVE, Search and Seizure, § 3.1(b), at 7-8 (3rd ed. 1996). Under an analysis of probable cause to arrest, the inquiry is whether the person to be arrested has committed a crime. See id. ¶ 14. This case involves both an arrest and a search incident to that arrest. The primary focus must be on the lawfulness of the arrest.",analysis
+583,2091272,1,3,"Several of the private landowners who desired to be annexed to Cedar Rapids intervened in the judicial review proceeding in district court pursuant to Iowa Code section 17A.19(2). These landowners raised a threshold issue as to the court's jurisdiction to consider the petition for judicial review, claiming the City of Hiawatha failed to serve copies of the petition for judicial review as required by Iowa Code section 17A.19(2), which provides in part: Within ten days after the filing of a petition for judicial review the petitioner shall serve by the means provided in the Iowa rules of civil procedure for the personal service of an original notice, or shall mail copies of the petition to all parties named in the petition and, if the petition involves review of agency action in a contested case, all parties of record in that case before the agency. Such personal service or mailing shall be jurisdictional. The delivery by personal service or mailing referred to in this subsection may be made upon the party's attorney of record in the proceeding before the agency. A mailing shall be addressed to the parties or their attorney of record at their last known mailing address. The intervenors contend the court lacked jurisdiction because Hiawatha failed to serve some of the parties in the administrative proceeding. A party under chapter 17A means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party. Iowa Code § 17A.2(8). Here, some of the property owners who had appeared at the board hearing were not served with copies of the petition for judicial review. They were not shown as parties in that proceeding. All parties of record and intervenors were served either personally or through their attorneys. The petitioner was not required to serve copies on other persons, as some of the intervenors contend, simply because they had been signers on the petition for annexation filed with the City of Cedar Rapids or because they had physically participated in the board hearing. We reject the jurisdiction argument and proceed to the merits of the appeal.",jurisdiction
+584,1099041,1,3,"Sperry raises several issues involving the denial of a directed verdict, refusal and acceptance of certain jury instructions, the use of prior inconsistent statements, the denial of certain expert testimony and the use by Prestage of an improper theory of recovery.",issues
+585,6335806,1,2,"This case involves the renewal, under Neb. Rev. Stat. § 42-924(3)(b) (Cum. Supp. 2020), of a domestic abuse protection order issued on March 18, 2020. The order was against Logan M. Otto II. The protected party was his former spouse, Margaret L. Garrison. 1. Underlying Order The underlying domestic abuse protection order in this case was originally issued ex parte, upon a finding that Garrison had stated facts showing Otto attempted to cause, or intentionally, knowingly, or recklessly caused, bodily injury to Garrison; or that he had, by means of credible threat, placed Garrison in fear of bodily injury. Further, the court found it reasonably appeared from the specific facts included in the affidavit that Garrison would be in immediate danger of abuse before the matter could be heard on notice. The petition and affidavit had described as the most recent and severe incident of abuse Otto’s actions occurring on February 26, 2020, in a parking lot after a court hearing involving a dispute between Garrison and Otto. Garrison averred that Otto was exiting the lot in his vehicle, when he sped up and - 97 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 swerved toward Garrison, who was walking with her husband to her car. Garrison described that she was almost hit, but that her husband grabbed her arm to remove her from the vehicle’s path. Attached photographs showed skid marks in the lot. The petition and affidavit also described, over the course of the preceding 7 years, other acts of violence, prior assault charges against Otto, and other protection orders against Otto. Otto contested the ex parte order, and a hearing was held in which Otto claimed, among other things, that he did not know Garrison and her husband were in the lot on February 26, 2020. Otto testified he had been driving slowly while on his cell phone and swerved away when he noticed two pedestrians, who ended up being Garrison and her husband. Otto also testified that the tire tracks in the photograph did not resemble tracks his tires could make. The district court found from the credible evidence adduced that the March 18, 2020, order should be affirmed. Otto appealed the district court’s decision affirming the March 18, 2020, ex parte domestic abuse protection order, arguing there was insufficient evidence of abuse or likelihood of future harm. In a two-paragraph opinion, we affirmed the district court’s decision. 1 2. Renewal (a) Petition On March 17, 2021, Garrison filed a petition and affidavit to renew the domestic abuse and protection order. Garrison averred that she and Otto have had ongoing proceedings in district court since 2009, stemming from their divorce. She generally asserted there was a long history of abuse by Otto of herself, their children, and her husband, as well as a violation by Otto of another harassment protection order in the past. Garrison averred that she feared for the safety of everyone in her household. 1 Garrison v. Otto, 308 Neb. 372, 953 N.W.2d 568 (2021). - 98 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 (b) Ex Parte Order The court issued an ex parte renewal of the ex parte domestic protection order, effective for 1 year from March 19, 2021. In so ordering, the court found that Garrison had stated facts showing Otto had attempted to cause, or intentionally, knowingly, or recklessly had caused, bodily injury to Garrison and by means of credible threat had placed her in fear of bodily injury. Further, the court found it reasonably appeared from the specific facts included in the affidavit that Garrison would be in immediate danger of abuse before the matter could be heard on notice. (c) Hearing Otto contested the ex parte renewal and requested a hearing. At the hearing, Garrison again gave her version of the incident in the parking lot, which occurred directly after a court hearing in which the court ruled Otto would not have his parenting time “renewed.” Garrison testified that she still felt her life was in danger from Otto. Otto also testified at the hearing. He again denied trying to hit or scare Garrison with his vehicle. He presented pictures of the tires on the vehicle he was driving and asserted that the tracks in the photograph that had been submitted were not from his vehicle. He acknowledged he had presented this same evidence at the hearing on the original protection order. Otto also generally testified that he had a positive relationship with his children and has historically tried to avoid interacting with Garrison. Otto testified that he has had 551 days of parenting time suspended since October 2019, with the exception of his parenting time with his then 14-year-old son. During that time of suspended parenting time, he has had only limited visitation in public places with his other children, during which the youngest child misbehaved. Otto testified that his children’s behavior has deteriorated while his parenting time has been suspended. - 99 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 Otto’s wife testified that Otto is very careful to avoid having any contact with Garrison at public sporting events the children participate in, which both they and Garrison attend. (d) May 10, 2021, Order In an order on May 10, 2021, the court affirmed the ex parte renewal of the domestic abuse protection order and ordered it remain in effect. The court concluded that a violation of the initial order was not a prerequisite for a renewal, noting that no such requirement is found in the statutes and that it would undermine the goal of domestic abuse protection orders to protect victims of domestic abuse from further harm. The court also concluded that although the remoteness of the past abuse is a matter for the court to consider, the occurrence of additional acts of abuse since the original protection order is not a legal prerequisite for its renewal. Finally, the court concluded that the petitioner for a renewal of a domestic abuse protection order is not required at the hearing on renewal to reestablish the truth of all facts supporting the issuance of the initial order. Noting principles of the ­law-of-the-case doctrine, the court stated that a hearing on renewal “is not an opportunity to relitigate the initial protection order.” The petitioner must only establish, by a preponderance of the evidence, the truth of the facts supporting renewal. Once that burden is met, explained the court, the burden shifts to the respondent to show why the protection order should not be renewed. The court took notice of the fact that it had already been determined that Garrison was a victim of domestic abuse under Neb. Rev. Stat. § 42-903(1) (Cum. Supp. 2020). The court found that Garrison had established by a preponderance of the evidence the truth of the facts supporting renewal and that Otto did not show cause as to why the protection order should not be renewed. More specifically, the court noted that the affidavit and Garrison’s testimony at the hearing provided the reasons she - 100 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 sought renewal, additional events since the initial protection order was issued, that there have been no material changes in relevant circumstances, she remains fearful of Otto and feels her life is still in danger, and she was not requesting a modification of the prior order. The court found Garrison’s testimony at the hearing was credible and showed she has a present fear of future harm due to the history and pattern of such abuse to date. The court noted that Otto testified to numerous confrontations between Garrison and Otto over the last few years, but “despite the past conduct leading up to his testimony, future harm is unlikely and Garrison is trying to alienate him from his children.” The court generally observed that both parties took “detours” in their testimony into grievances from many years before and “squabbled” over matters pending before the court in other proceedings. The court stated that these detours showed that “the relevant circumstances since entry of the initial protection order certainly have not improved.” The court stated that it had considered the factors pertinent to the likelihood of future harm and that Otto had not met his burden of proof as to why the protection order should not remain in effect. The court summarized that Garrison had established by a preponderance of the evidence that she was a victim of domestic abuse as defined by § 42-903, that there has been no material change in relevant circumstances since entry of the initial protection order, that Garrison remains in fear for her safety now and in the future, and that renewal of the protection order is needed to prevent future harm. (e) Terminating Motion and Notices of Appeal On May 20, 2021, Otto filed a motion for a new trial or to alter or amend. Before the court ruled on the motion, however, Otto filed a notice of appeal on June 9, 2021. That appeal was docketed as case No. A-21-478. - 101 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 The district court found that despite Otto’s notice of appeal, pursuant to Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2020), it had jurisdiction to rule on the motion for new trial or to alter or amend. The court then denied the motion for new trial or to alter or amend. Otto filed another notice of appeal on August 4, 2021, docketed as case No. A-21-641. The Court of Appeals consolidated the two appeals, and we moved them to our docket.",facts
+586,1381682,1,2,"Justice Thomas has filed a concurring opinion herein where he urges that a motion for a verdict of acquittal made at the end of the State's case should not be waived if the defendant, after receiving an adverse ruling on the motion, should decide to go forward with evidence in his or her own behalf. I agree with these thoughts. The rule should be as he suggests. It does not matter very much in this case whether the rule of our prior holdings in Grabill, Seyle, Jones and Rinehart, the rule adopted by the majority, or the rule suggested by Justice Thomas is utilized. The question in all instances is one of sufficiency of the evidence. By introducing evidence in his own behalf in the case at bar, the defendant did nothing to fill in the gaping holes in the fabric of the State's case. The State did not make a prima facie case in its case in chief and, when all the evidence was in, there was insufficient evidence to support a guilty verdict. We said in Rinehart v. State, supra: `The oft-repeated rule by which we test the sufficiency of evidence on appeal of a criminal matter is that we examine and accept as true the evidence of the prosecution, leaving out of consideration entirely the evidence of the defendant in conflict therewith, and we give to the evidence of the prosecution every favorable inference which may reasonably and fairly be drawn therefrom. Stated another way — it is not whether the evidence establishes guilt beyond a reasonable doubt for us, but rather whether it is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by the jury when the evidence is viewed in the light most favorable to the State. [Citations.]' Harvey v. State, Wyo., 596 P.2d 1386, 1387 (1979). 641 P.2d at 194. See Cloman v. State, supra; Grabill v. State, supra. In the instant matter, is the evidence sufficient to form a reasonable inference of guilt beyond a reasonable doubt when viewed in the light most favorable to the State? I say no. A reasonable inference of guilt beyond a reasonable doubt cannot be formulated upon opinion evidence of nonexperts [7] who have drawn their conclusions from faulty hypotheses. Furthermore, the rule announced in our previous child-abuse cases has not been complied with because qualified experts have not testified in this case that the trauma was inflicted by abusing the child. (See Grabill, supra, Seyle, supra, Jones, supra, and Rinehart, supra.) The most that can be said is that, given some but not all of the possibilities — given inaccurate physical facts about the bathtub — given the wrong age of the child — the doctors said that, in their opinion, the burns were not incurred as the defendant said they were. This is insufficient to uphold a guilty verdict under the reasonable-doubt concept. I would reverse.",sufficiency of the evidence
+587,4526383,1,1,"The Douglas County District Court dissolved the marriage of Ariana Bernal Sabino and Juan Carlo Genchi Ozuna and awarded full custody of the parties’ child to Sabino. Sabino sought specific findings of fact for purposes of special immigrant juvenile (SIJ) status under federal law. The district court declined to make such findings, and Sabino appealed. We reverse, and remand for further proceedings.",introduction
+588,4247672,1,5,"The issue on appeal is whether the Department’s interception of a state income tax refund in order to repay an unemployment benefit overpayment is subject to a statute of limitations. It is undisputed that the statutes providing for this right to setoff do not include a statute of limitations. The appeal tribunal found, and the district court agreed, that the 4-year limitations period in Neb. Rev. Stat. § 25-206 (Reissue 2016) (read in conjunction with § 25-218), dealing with an action on liability created by a statute, barred the recovery. Alternatively, the appeal tribunal noted that Neb. Rev. Stat. § 25-1515 (Reissue 2016), which limits the execution of a judgment to a time period of 5 years from the date rendered or last execution date, would prevent the Department from intercepting the refund, because it had been more than 5 years since the Department had intercepted McCoy’s 1997 refund. The Department disputes that §§ 25-206, 25-218, and 25-1515 are applicable and argues that the plain meaning of the statutes, read as a whole, clearly indicate that no statute of limitations was intended, noting that this result is consistent with the availability of setoff against a federal tax refund. The Department also argues that the statute of limitations was an affirmative defense, which McCoy did not allege, and states that the possibility that a statute of limitations would bar a setoff was initially raised by the appeal tribunal, which was not acting in a neutral capacity. R elevant Statutes Section 48-665(1) provides that “[a]ny person who has received any sum as benefits under the Employment Security Law to which he or she was not entitled shall be liable to repay such sum to the commissioner for the fund.” That section sets forth four ways in which repayment might be sought: “without interest by civil action,” “by offset against any future - 301 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports McCOY v. ALBIN Cite as 298 Neb. 297 benefits payable to the claimant with respect to the benefit year current at the time of such receipt or any benefit year which may commence within three years after the end of such current benefit year,” “by setoff against any state income tax refund,” and by setoff against a federal income tax refund. The procedure to be followed for the Department to recover such a setoff is encompassed in Neb. Rev. Stat. §§ 77-27,197 to 77-27,209 (Reissue 2009) and in the Department’s regulations found at 219 Neb. Admin. Code, ch. 16 (2012). Section 77-27,197 provides that the Legislature’s intent was “to establish and maintain a procedure to set off against a debtor’s income tax refund any debt owed to the Department . . . which has accrued as a result of an individual’s liability for the repayment of unemployment insurance benefits determined to be in overpayment.” Nebraska law further provides that this “collection remedy . . . shall be in addition to and not in substitution for any other remedy available at law.”4 The setoff provided by state law is similar to the one provided by federal law. The federal “Treasury Offset Program” allows covered unemployment compensation debt to be recovered through the offset of federal income tax.5 There is no time limitation in federal law. As noted above, several more general statutes of limitations are relevant here. Section 25-206 provides: “An action upon a contract, not in writing, expressed or implied, or an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within four years.” Section § 25-218 provides: Every claim and demand against the state shall be forever barred unless action is brought thereon within two years after the claim arose. Every claim and demand on behalf of the state, except for revenue, or upon official 4 § 77-27,200. 5
+- 302 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports McCOY v. ALBIN Cite as 298 Neb. 297 bonds, or for loans or money belonging to the school funds, or loans of school or other trust funds, or to lands or interest in lands thereto belonging, shall be barred by the same lapse of time as is provided by the law in case of like demands between private parties. This section shall not apply to any claim or demand against the state regarding property taxes. Finally, § 25-1515 provides: If execution is not sued out within five years after the date of entry of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years have intervened between the date of the last execution issues on such judgment and the time of suing out another writ of execution thereon, such judgment, and all taxable costs in the action in which such judgment was obtained, shall become dormant and shall cease to operate as a lien on the estate of the judg- ment debtor. A pplicability of Limitations Period [3,4] When asked to interpret a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.6 It is the court’s duty to discover, if possible, legislative intent from the statute itself.7 In construing a statute, a court must look at the statutory objective to be accomplished, the problem to be remedied, or the purpose to be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than a construction defeating the statutory purpose.8 6 See Arthur v. Microsoft Corp., 267 Neb. 586, 676 N.W.2d 29 (2004). 7 Id. 8 Id. - 303 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports McCOY v. ALBIN Cite as 298 Neb. 297 Section 48-665 provides four ways for the Department to collect an overpayment. One way includes an explicit time limitation. As relevant, subsection (1)(b) states that for an offset against future unemployment benefits payable to the claimant with respect to the benefit year current at the time of such receipt of any benefit year, such offset may be commenced within 3 years after the end of such current benefit year. Another option is recovery by a civil action as provided for by subsection (1)(a) and provides for an implicit time limitation—specifically, the statute of limitations for a civil action as set forth in chapter 25 of the Nebraska Revised Statutes. The third and fourth collection options are offsets against either federal or state income tax refunds. Neither option explicitly states a limitations period, nor does either implicitly include a limitations period. Federal law previously prescribed a 10-year limitations period to offset overpayments against a federal income tax refund. However, that limitations period was apparently removed in 2010 and there is currently no limitations period for the offset of overpayment against a federal refund.9 Applying the usual standards of statutory application to the language of § 48-665, we hold that the Legislature did not intend for the time limitations provided for in §§ 25-206 and 25-218 to infringe upon the Department’s ability to collect an overpayment by setoff. The statutory language provides for different methods of collection—some with and others without time limitations—lending support to the conclusion that the lack of a limitation for an offset against a state tax refund is meaningful. Moreover, the language employed by the Legislature, even beyond the failure to include an explicit limitation, does not suggest any limitation. Section 48-665(1)(c) provides 9 See Pub. L. 111-291, § 801(a)(4), 124 Stat. 3157. - 304 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports McCOY v. ALBIN Cite as 298 Neb. 297 that a setoff may be made “against any state income tax refund due the claimant pursuant to sections 77-27,197 to 77-27,209.” (Emphasis supplied.) And “[r]efund” is defined by § 77-27,199(2) as “any Nebraska state income tax refund.” (Emphasis supplied.) That the plain language of the statute supports the Department’s position that no statute of limitations is applicable to a setoff against a state income tax refund is further supported by an examination of the Legislature’s intent: It is the intent of the Legislature to establish and maintain a procedure to set off against a debtor’s income tax refund any debt owed to the Department . . . which has accrued as a result of an individual’s liability for the repayment of unemployment insurance benefits determined to be in overpayment pursuant to sections 48-665 and 48-665.01 . . . .10 [5] The plain language of §§ 25-206 and 25-218 states that the limitations period provided by each statute is applicable to an action. A civil action is commenced by filing in the proper court a petition and causing a summons to be issued.11 A setoff is not an action in the traditional sense, and were it to be treated as such, it would be duplicative to the collection procedure set forth in § 48-665(1)(a) allowing an overpayment to be collected by a civil action filed in the name of the commissioner. This result is consistent with federal law. As explained above, federal law previously provided a 10-year limitations period, but no longer has such a limitation. Because the procedure for a federal refund offset is similar to the procedure for a state refund offset under § 48-665(1)(c), it would make sense to have the same limitations period, or none at all, for 10 § 77-27,197 (emphasis supplied). 11 Tiedtke v. Whalen, 133 Neb. 301, 275 N.W. 79 (1937). See, also, Neb. Rev. Stat. § 25-501 (Reissue 2016). - 305 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports McCOY v. ALBIN Cite as 298 Neb. 297 each mechanism. We further observe that even if we were to conclude that the Department was unable to recover a setoff from McCoy’s state income tax refund, it would be able to obtain a setoff from any federal refund by following the applicable procedure. We reject the appeal tribunal’s reliance upon § 25-1515. Section 25-1515 deals with dormant judgments and specifically provides that a judgment is dormant 5 years after it was recorded if never executed upon; otherwise, it is dormant 5 years after its last execution, which in this case was in 1997. But the plain language of § 25-1515 supports the conclusion that the notice of overpayment is not a judgment. Section 25-1515 states in relevant part that it applies to “any judgment . . . rendered in any court of record in this state.” The notice of overpayment at issue in this case was not rendered by any court of record—it was entered by an administrative agency. We therefore conclude that on these facts, such notice of overpayment is not a judgment for purposes of § 25-1515. Having concluded that there is no statute of limitations applicable to the procedure set forth in § 48-665(1), we need not address the Department’s waiver argument.",introduction
+589,2827594,1,1,"¶1 Angie Moffo lived rent free for eight years in a home that belonged to her brother-in-law, Doug Rich. After Mr. Rich filed for Chapter 7 bankruptcy, the trustee, Stephen Rupp, sued Ms. Moffo for back rent under Utah’s Uniform Fraudulent Transfer Act (the Act), sections 25-6-1 to -14 of the Utah Code. The district court, concluding that Ms. Moffo was the recipient of a fraudulent transfer, granted Mr. Rupp summary judgment and entered a $34,200 judgment against Ms. Moffo. On appeal, Ms. Moffo argues that Mr. Rupp lacks statutory standing under the Act and, in the alternative, RUPP v. MOFFO Opinion of the Court that Mr. Rich did not transfer an asset within the scope of the Act.1 We hold that Mr. Rupp has statutory standing because, as a bankruptcy trustee, he is a creditor of Mr. Rich. But we hold that Mr. Rich did not transfer an asset to Ms. Moffo because the home was fully encumbered by a mortgage. We therefore vacate the judgment entered against Ms. Moffo and remand the case to the district court with instructions to enter summary judgment in favor of Ms. Moffo.",introduction
+590,852336,1,2,"Bailey contends there is insufficient evidence to support his convictions. When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Henley v. State, 881 N.E.2d 639, 652 (Ind.2008). We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence. Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.
+To convict Bailey of battery, the State was required to prove he knowingly or intentionally touche[d] another person in a rude, insolent, or angry manner. Ind.Code § 35-42-2-1 (2008). The charging information specified that Bailey knowingly touched Assistant Principal Brewer. Indiana's General Assembly has defined knowingly: (b) A person engages in conduct knowingly if, when he engages in the conduct, he is aware of a high probability that he is doing so. Ind.Code § 35-41-2-2 (2008). Bailey contends he did not knowingly touch Brewer. [1] Assistant Principal Brewer testified she put [her] arm out to tell him he needed to leave if he wasn't going to comply and he pushed through my arm. (Tr. at 11.) She explained that Bailey did not use his hands, but used his body to push through her arm. (Tr. at 11-12.) Dean Knight testified he was ten to fifteen feet away when he observed Bailey, who pushed his way through Miss Brewer, who had put her arm out. (Tr. at 14.) The trier of fact could infer Bailey's push or physical movement of disrespect, indicating he was not going to comply with Brewer's request, constituted a knowing touching in a rude, insolent, or angry manner. Moreover, Bailey's own testimony provided an inference that a knowing touching occurred in an angry or insolent manner. Bailey initially insisted that he did not touch Brewer: I didn't touch her or nothing, you know. I had my hands down. I was just walking through. (Tr. at 23.) Upon cross-examination, however, he conceded that although he did not touch her using his hands, he may have touched her with another part of his body. Prosecutor: But did you touch her arm? Bailey: No, ma'am. Prosecutor: Not with your body? Bailey: No. I had my hand down. I was pulling my pants. Prosecutor: Would some other part of your body have touched her arm? Bailey: I mean, she had it right there. Court: Your answer was what? I didn't hear you. Bailey: Yes. She had it right there. She had her arm there. (Tr. at 25.) Bailey also admitted being angry when he interacted with Brewer. (Tr. at 26.) How close Bailey was to Assistant Principal Brewer at the moment she extended her arm is a legitimate question of fact bearing on whether Bailey committed a knowing touching. Here, the testimony by the school staff and by Bailey provided the trier of fact with sufficient evidence to conclude Bailey was aware that Assistant Principal Brewer's arm barred his way and knowingly pushed through it. We conclude the State proved a knowing touching in a rude, insolent, or angry manner.
+To convict Bailey of disorderly conduct, the State was required to prove he recklessly, knowingly, or intentionally engaged in fighting or in tumultuous conduct. Ind.Code § 35-45-1-3(a)(1) (2008). Tumultuous conduct is defined as conduct that results in, or is likely to result in, serious bodily injury to a person or substantial damage to property. Ind.Code § 35-45-1-1 (2008). Bailey contends his actions do not rise to the requisite level to fulfill the statutory definition of tumultuous conduct. There are relatively few Indiana decisions examining tumultuous conduct in the context of the sufficiency of the evidence to support a disorderly conduct conviction. In Whitley v. State, 553 N.E.2d 511 (Ind. Ct.App.1990), the Court of Appeals affirmed a disorderly conduct conviction arising out of a neighborhood disturbance between two groups of women. Id. at 512. After police arrived and separated the groups, Whitley continued to taunt the other group. Id. On appeal, she challenged whether yelling could be tumultuous conduct. The court held the language of the statute was unambiguous and Whitley's physical struggle with police while they attempted to handcuff her and her conduct before her arrest, in each occasion, created a likelihood that serious bodily injury or substantial property damage would result. Specifically, the court pointed to the racial nature of the confrontation and Whitley's persistence in yelling and taunting the other group, before her arrest, could have led to a fight between the groups. Id. at 513-514. In dissent, Judge Sullivan noted the likelihood of serious bodily injury from Whitley's conduct prior to her arrest was insufficient, as at least three police officers were present at the crucial time. Id. at 515. The Whitley court relied in part on Gebhard v. State, 484 N.E.2d 45 (Ind.Ct.App. 1985), although it noted that Gebhard involved the adequacy of charging information, not the sufficiency of the evidence. Whitley, 553 N.E.2d at 513 n. 3. In Gebhard, the defendant was convicted under the tumultuous conduct section of disorderly conduct statute for walking out into the hallway of [an] apartment house ..., and displaying a .45 caliber handgun in his hand with the purpose of confronting anyone in the hallway ... Gebhard, 484 N.E.2d at 47. The court determined the statutory definition of tumultuous conduct contemplates physical activity on [the defendant's] part rising to the level that either people are seriously injured or property substantially damaged, or that either is likely to occur. Id. at 48. The court also explained that the words engages in contained in the disorderly conduct statute obviously requires [sic] present, completed conduct which is likely to injure persons. Id. It reversed Gebhard's conviction, holding that the information alleged an offense that may happen, a future act, a contingency, that is, a chance encounter with some person or persons. Walking in an empty hall with a pistol is not tumultuous conduct because it does not rise to the level that persons are immediately likely to be seriously injured. Id. The court concluded IF persons had appeared and IF Gebhard had menaced them with a loaded pistol, a different result may have been reached. Id. at 48-49. Counsel for Bailey reads these cases as suggesting that finding a probability of violence is warranted only when it seems that a defendant's moves are likely to provoke the opposing party to respond with actions that would lead to serious bodily injury (that is to say, in this case, only if it seemed Dean Knight might escalate to violence). (Appellant's Br. at 6.) To be sure, disorderly conduct may be found under such circumstances, but the statute is not so confined. Disorderly conduct may also occur when the aggressor appears well on his way to inflicting serious bodily injury but relents in the face of superior force or creative resistance. For example, In B.R. v. State, 823 N.E.2d 301 (Ind.Ct.App.2005), the Court of Appeals held the evidence was sufficient to convict B.R. of disorderly conduct under tumultuous conduct. B.R., a student, approached another student in anger, and in the midst of a heated argument, pointed an open or unsheathed knife at the other student and the immediate danger of serious bodily injury was only defused when the threatened student struck B.R. and left. Id. at 307. By contrast, the Court of Appeals addressed tumultuous conduct in a civil law context in N.J. ex rel. Jackson v. Metropolitan School Dist. of Washington Twp., 879 N.E.2d 1192 (Ind.Ct.App.2008). The court held that the conduct of N.J., yelling at another girl on a school bus but never approaching her, was not enough to demonstrate that serious bodily injury or substantial property damage was likely to occur. Id. at 1197-1198. Here, Bailey's conduct was closer to B.R.'s than to N.J.'s. Bailey threw down his drink and his coat and the trier of fact inferred this equaled throwing down the gauntlet, as in I'm throwing it down so I have my arms free to fight you. (Findings of the Court Tr. at 39.) Bailey stepped towards Dean Knight in an angry manner, clinched up his fists at his sides and let out a series of obscenities all within inches of Dean Knight's face. The record indicates Bailey backed away from Dean Knight only upon seeing Officer Hunter. It was reasonable for the trier of fact to conclude that, but for the officer's arrival, Bailey's conduct would have escalated. Although Bailey did not produce a weapon as B.R. did, his clinched fists and the testimony of Dean Knight (I felt like he was ready to hit me) were sufficient to conclude serious bodily injury was likely to result. The trier of fact could reasonably infer that serious bodily injury would result had Officer Hunter not arrived given Bailey's anger in approaching Dean Knight, throwing his coat and drink, his verbal tirade, and his clinched fists. The evidence was thus sufficient to convict.",standard of review
+591,1508892,1,1,"Grine failed to obtain his doctorate in Marketing at the University of Arkansas while working under the advice and direction of Appellee Dr. Dub Ashton (Ashton). Grine asserts Ashton caused this by acting in bad faith in giving him an unworkable dissertation topic, and then in giving him inaccurate, arbitrary, and false information. Grine alleges he told Ashton in July 1995, that he had to finish his doctorate by October 1995, or he would lose a teaching position in Oklahoma, and that Ashton told him it was not a problem. Then, as the summer of 1995 ended, Grine states Ashton told him he was not optimistic Grine could finish by October. Grine states some drafts had been with Ashton for a year, and he had not read them. Grine asserts Ashton ceased to cooperate until Grine went to the department head to complain. Then, Grine alleges, Ashton read the drafts within a week of his discussion with the department head and returned a negative response when all previous responses had been positive. Grine also asserts that in a subsequent meeting Ashton told him he was angry because Grine had gone to the department head. Some time later, Ashton told Grine that Grine was unable to conceptualize what a dissertation should look like and that he should just give up. Grine then took his work to three other professors who told him that his work was inferior in quality. According to Grine, one professor said she was not sure the topic could be developed into anything acceptable as a dissertation. Grine believes Ashton initially acted out of simple ignorance because Ashton had failed to stay abreast of developments in the field of marketing. Grine asserts Ashton later realized that his ignorance would become manifest to his colleagues during the dissertation process. This, according Grine, made Ashton become deliberate in avoiding him and in giving him false information. Grine asserts that Ashton's actions ultimately caused him to fail to complete his doctorate within the seven year period allowed by the University. As to the other University officials, Grine contends they should be enjoined from enforcing the seven-year doctoral completion period so that he may continue pursuit of his doctorate. On appeal, Grine argues that the trial court erred because Grine properly pleaded exceptions to sovereign immunity. More particularly, appellant avers that his complaint alleged acts that were ultra vires, bad faith, and arbitrary and capricious actions, and thus not entitled to immunity. Grine also argues sovereign immunity is inapplicable to the individuals because they were sued for acts of bad faith for which they and not the State would pay.",facts
+592,2314824,1,2,"The Board of Appeals found, as had the Planning Board, that the Lentines' proposal did not meet the requirements of section 13(F)(4). Because the Lentines had the burden of proof to establish that they had satisfied all requirements for approval, see Bruk v. Town of Georgetown, 436 A.2d 894, 898 (Me.1981), they to prevail on appeal... must show not only that those Board findings ... are unsupported by record evidence, but also that the record compels contrary findings. Grant's Farm Assoc., Inc. v. Town of Kittery, 554 A.2d 799, 801 (Me.1989) (citing Luce Co. v. Hoefler, 464 A.2d 213, 215 (Me.1983)). Clearly, this record does not compel the finding that the Lentines' proposed wharf met the requirements of section 13(F)(4). Indeed, there was ample evidence to show both that its size would interfere with other uses of Teel Cove and that it could have been smaller and still adequately meet the Lentines' needs. The Board had before it evidence that a wharf of the proposed size would interfere with the existing conditions, use, and character of the cove by, for example, creating a danger of ice pile-up that would threaten neighbors' property and businesses. The record before the Board of Appeals plainly does not compel a finding that the Lentines' proposed wharf would comply with the two size limitations imposed by section 13(F)(4). The entry is: Judgment affirmed. All concurring.",sufficiency of the evidence
+593,3150731,1,8,"12 ¶21. Graves argues that the evidence presented at trial was not sufficient to support his fondling and sexual-battery convictions because G.W.’s testimony was inconsistent. When considering a sufficiency-of-the-evidence argument, this Court must consider “whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’” Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). This Court must review the evidence in the light most favorable to the verdict. Kirk v. State, 160 So. 3d 685, 695-96 (Miss. 2015). Additionally, it is well-established that a person may be found guilty based on nothing more than the uncorroborated testimony of a single witness. See Ferguson v. State, 137 So. 3d 240, 244 (Miss. 2014); Brown v. State, 42 So. 3d 540, 543 (Miss. 2010); Doby v. State, 532 So. 2d 584, 591 (Miss. 1988). ¶22. G.W. testified in detail regarding the two times that Graves fondled and sexually assaulted her. Although Graves attempted to impeach G.W.’s testimony through her interview with Caldwell, G.W.’s testimony was not substantially contradicted. Additionally, the State offered the testimony of four other witnesses, G.W.’s mother, brother, friend, and friend’s mother, who all corroborated G.W.’s testimony. Reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that the evidence presented at trial sufficiently supported a finding that Graves sexually assaulted and fondled G.W., and this issue is without merit.",sufficiency of the evidence
+594,1533871,1,30,"The sentencing statute at the time of Appellant's trial directed that: The Supreme Court shall affirm a sentence of death unless it determines that: (i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; or (ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. 42 Pa.C.S. § 9711(h)(3). Because the sentence of death was not the product of passion, prejudice or any other arbitrary factor, because there was sufficient evidence to support the aggravating circumstance, and because the sentence was not disproportionate, we affirm the judgment of sentence and the determinations of guilt. Pursuant to 42 Pa.C.S. § 9711(i), we direct the Prothonotary of the Supreme Court of Pennsylvania to transmit, within ninety days, the complete record of this case to the Governor of Pennsylvania. Former Chief Justice ZAPPALA did not participate in the decision of this case.",conclusion
+595,4513371,1,1,"Arlyn P. Ildefonso appeals from the denial of his motions for DNA testing and appointment of counsel. Because Ildefonso failed to demonstrate that DNA testing may produce noncumulative, exculpatory evidence, the district court did not abuse its discretion by denying his motions. We affirm. - 712 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. ILDEFONSO Cite as 304 Neb. 711",introduction
+596,1547486,1,12,"Having found that Petitioner has failed to meet his burden of proving his fitness by clear and convincing evidence, the Board recommends that the Petition for Reinstatement be denied. BOARD ON PROFESSIONAL RESPONSIBILITY By: s/Roger A. Klein Roger A. Klein Dated: May 6, 2004 All members of the Board concur in this Report and Recommendation.",conclusion
+597,2626015,1,3,"¶ 12 A district court's grant of summary judgment is a legal ruling that we review without deference. [5] A district court should grant summary judgment only when, viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party, [6] there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law. [7]",standard of review
+598,2147380,1,6,"Defendant next contends that the trial court improperly admitted into evidence the defendant's coat and particles removed from his clothing from which these articles, according to the defendant, had been seized pursuant to an unlawful arrest. The Fourth Amendment does not permit a warrantless arrest and search in the absence of probable cause. New York v. Belton, (1981) ___ U.S. ___, 101 S.Ct. 2860, 69 L.Ed.2d 768. This Court has defined probable cause to be those facts and circumstances known to the arresting officer that would warrant a reasonable man to believe that a crime had been committed by the suspect. Pawloski v. State, (1978) 269 Ind. 350, 380 N.E.2d 1230. In this case, several friends and relatives of the decedent arrived at the hospital shortly after the ambulance carrying her body had arrived. Upon questioning by a security guard at the hospital, each member of this group described in an excited and spontaneous manner that he believed the defendant had killed the decedent. The security guard later testified at a suppression hearing that he had believed three or four of these persons who had said that they had actually witnessed the shooting. Furthermore, the guard had known that one of these informants was a reliable police officer, who, upon occasion, had served in an arresting capacity. The guard therefore had had an opportunity to acquaint himself with the mutually corroborating informants and to assess their statements and the circumstances surrounding them. An immediate decision concerning an arrest was called for when the defendant appeared on the scene at the hospital. Although the Fourth Amendment provides reasonable safeguards for defendants, it is also tolerant of quick ad-hoc judgments by arresting officers when they act, with reasonable caution and prudence, upon their belief that sufficient probable cause exists to arrest the defendant. United States v. Robinson, (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427. An arrest of a suspect based upon probable cause is a reasonable intrusion under the Fourth Amendment, and any following search of clothing needs no further justification. United States v. Edwards, (1974) 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771. Gustafson v. Florida, (1973) 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456; Hatcher v. State, (1980) Ind., 410 N.E.2d 1187. Since the arrest of the defendant was proper and custodial search which followed it was reasonable, there was no error in admitting these exhibits.",issues
+599,2083037,1,2,"This same issue was formerly presented and determined on direct appeal. See Kennedy v. State, (1974) 262 Ind. 295, 315 N.E.2d 350. Issues raised and determined on direct appeal are not reviewable in a subsequent post conviction proceeding. Frasier v. State, (1977) Ind., 366 N.E.2d 1166; Layton v. State, (1974) 261 Ind. 567, 307 N.E.2d 477.",issues
+600,1671765,1,2,"¶ 272. The majority's affirmance of Beckwith's conviction places us on the precipice of legal misadventure. Beckwith's constitutional rights to a speedy trial and due process have been seriously and egregiously violated. The State delayed prosecution of Beckwith for some 9,706 days and, with the legal equivalent of a straight face, asks us to ignore Beckwith's constitutional rights to a speedy trial and due process. The task of this Court is to determine whether or not the trial Beckwith received was constitutionally fair. Clearly, it was not. His trial, conducted in a circus-like atmosphere, was rife with discovery errors, as pointed out by Justice Sullivan's thoughtful dissent, and riddled with egregious constitutional errors. Both practically and legally, the majority opinion results in a total eradication of the guarantee of a speedy trial from the constitutional lexicon. For the foregoing reasons, I must dissent.",conclusion
+601,2502176,1,4,"Barber argues the evidence presented at trial did not support a jury charge on accomplice liability as to the murder charge. We disagree. In State v. Funchess, 267 S.C. 427, 229 S.E.2d 331 (1976), and other cases, this Court has held that a lesser-included offense may not be charged merely on the theory the jury may believe some of the evidence and disbelieve other evidence. Barber relies upon this reasoning to support his argument that similar speculation is insufficient to warrant a jury charge on an alternate theory of liability. Barber's proposition is correct. Like a lesser-included offense, an alternate theory of liability may only be charged when the evidence is equivocal on some integral fact and the jury has been presented with evidence upon which it could rely to find the existence or nonexistence of that fact. We find the sum of the evidence presented at trial, both by the State and defense, was equivocal as to who was the shooter. Thus, the charge on accomplice liability was warranted. Under the `hand of one is the hand of all' theory, one who joins with another to accomplish an illegal purpose is liable criminally for everything done by his confederate incidental to the execution of the common design and purpose. Mattison, 388 S.C. at 479, 697 S.E.2d at 584. To support an accomplice liability charge in this case, the question is whether there is any evidence that another co-conspirator was the shooter and Barber was acting with him when the robbery took place. See State v. Dickman, 341 S.C. 293, 295-96, 534 S.E.2d 268, 269 (2000). We find evidence to support the conclusion that Barber was acting with the other men during the robbery. Because all of the men clothed themselves all in black and wrapped shirts around their heads so only their eyes were visible, the witnesses could only describe and differentiate the men based on physical build, height, and the weapon carried. Kimbrell, Kiser, and Walker, however, all testified to substantially the same version of the planning and execution of the robbery—that Barber was involved and was the shooter. The evidence presented at trial could also support a finding that one of the other robbers was the shooter. The State presented evidence that Kiser was the shortest of the three men and carried the rifle, Barber was of middle height and carried a semi-automatic handgun, and Walker was the tallest and carried no weapon. However, defense counsel elicited testimony that all three robbers were armed—one with a rifle and two with .380 handguns, the type weapon forensic experts testified fired all the shots in Heintz's home that evening. Defense counsel's cross of Coleman Robinson, the witness who had been sleeping on the couch when the robbery began, indicates all three men were armed: Q: [quoting from Mr. Robinson's statement to the police days after the incident] After the door was open, first they pushed it wide and hit the wall. As soon as that happened, that person turned the lights on. A: Yes. Q: Without having to look for the switch. I just laid on the couch until this same person walked up to me and I noticed he was holding a gun in his left hand. A: Yes. Q: And that's the truth? A: Yes. . . . Q: All right. And then later on you talk about the second guy. The second guy was a little shorter and looked younger. He was carrying a rifle. A: Yes, sir . . . . Q: Then you say the third guy was taller, about six feet, 160. He had a bunched up T-shirt around his head, too. He looked to be in his early twenties. He was carrying a pistol also. A: Yes. Kyle Robinson, Coleman's brother who was asleep in a bedroom when the robbery began, also testified that the tallest of the three, which would be Walker, was armed: A: [On direct examination] Well, as I went to the [bedroom] door to see what was going on, my door was like halfway shut, so I looked through the little space and that's when I saw the guy go back there to Alan's room and he had a black pistol in his hand. [2] . . . A: And then by that time I kind of opened the door and I looked and I saw the gun at Coleman's head, my brother, and I saw him give his wallet up.... . . . Q: Were you able to tell anything about the other two as far as size goes? A: I remember seeing the guy that went in the back. He seemed to be the biggest of all of them. Q: Okay. When you say big— A: You know, tall. Just the tallest of all of them.... . . . Q: [On cross-examination] And you saw a black guy holding a small semi-automatic handgun to [your] brother's head; is that right? A: Right. Q: He was a black guy about six feet tall, weighing 150 to 160; is that right? A: That's what I said, but I was actually kind of wrong about that. Q: So when you made this statement on the 15th, the day after it happened, you said he was six feet tall? A: That's what he appeared to be, but the other guy was bigger. . . . Q: There was a shorter black guy pointing a rifle at [you]? A: Yeah. Q: And a third black guy went to the other bedroom and pulled Alan out. He was about six feet tall and weighed 180 pounds, and today you said he had a gun also? A: Yes. Further, defense counsel outright argued that Walker was armed with a .380, the type of gun that fired the shots at Heintz's house, suggesting that Walker was the shooter. Thus, the testimony offered at trial indicating there may have been two robbers armed with handguns is sufficient to warrant the jury charge.",analysis
+602,2056529,1,9,"The Panel finds that Respondent should be publicly reprimanded for his violations of Rules 1.15(a), 1.15(d), 8.4(c), and Rule 8.4(d) as well as serve a public two-year period of probation, subject to the following terms: (a) Respondent shall have completed an audit by a licensed certified public accountant for his Certificates of Compliance, reporting the status of his compliance or lack thereof with the requirements of Rule 1.15 and Rule 1.15A, and shall file each annual Certificate of Compliance by no later than the due date; (b) Respondent shall also provide the ODC with a timely written confirmation that he has filed each annual Certificate of Compliance with the required precertification. (c) Respondent shall cooperate fully and promptly with the ODC in its efforts to monitor compliance with his probation, including any audit performed at the request of the ODC or otherwise; (d) Respondent shall also cooperate with the ODC's investigation of any allegations of unprofessional conduct that may come to the attention of the ODC; (e) Upon request of the ODC, the Respondent shall provide authorization for release of information and documentation to verify compliance with these conditions; (f) the Respondent shall pay the costs of this disciplinary proceeding pursuant to Procedural Rule 27 promptly upon being presented with a statement of these costs by the ODC. The costs to be paid by the Respondent will include without limitation the cost of the Lawyers' Fund follow-up audits; and (g) Respondent shall meet with the Professional Guidance Committee for assistance and guidance in managing his solo practice of law and he shall complete six hours of MCLE programming addressing books and records, law office management, and related issues no later than the due date for filing his next Certificate of Compliance.",conclusion
+603,4534679,1,1,"This case gives us the opportunity to reaffirm once more that plea agreements are contracts, and accordingly, they are subject to general principles of contract law. The plea agreement here provided that the defendant would plead guilty to his pending charge of second-degree arson, that he would cooperate in an interview regarding some other suspicious fires that had occurred, and that the State would not bring charges regarding those other fires. After the defendant pled guilty, the State changed its mind and decided it did not need or want the interview. It advised the defendant before sentencing he would be charged with other arsons and gave him an opportunity to withdraw from the plea agreement. The defendant declined to withdraw. Nonetheless, the State brought four additional arson charges. The defendant moved to dismiss them as a breach of the plea agreement. The district court denied the motion, and we granted interlocutory review. Consistent with the law of contracts, we now hold that the State could not unilaterally withdraw from the plea agreement either by declining to conduct the interview or by making an offer of rescission that the defendant did not accept. Because the State remains bound by its plea agreement under these circumstances, we reverse the order denying the defendant’s motion to dismiss and remand with directions to grant that motion.",introduction
+604,8065928,1,2,"[1] A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas before sentencing. State v. Canaday, 307 Neb. 407, 949 N.W.2d 348 (2020). An appellate court will not disturb the trial court’s ruling on a presentencing motion to withdraw a guilty or no contest plea absent an abuse of discretion. Id. [2,3] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of - 123 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports STATE V. WARNER Cite as 312 Neb. 116 law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020). In reviewing a claim of ineffective assistance of trial counsel on direct appeal, an appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel’s alleged deficient performance. Id.",standard of review
+605,2073924,1,1,"The principle is well established that a court cannot hear a case as to which it lacks subject matter jurisdiction even though all parties thereto desire an adjudication on the merits. State v. Osborn, 32 N.J. 117, 122 (1960); Abbott v. Beth Israel Cemetery Ass'n of Woodbridge, 13 N.J. 528, 537 (1953); Peterson v. Falzarano, 6 N.J. 447, 454 (1951). Such jurisdiction must be granted to the court by the Constitution or by valid legislation, as it cannot be vested by agreement of the parties. Id. Likewise, subject matter jurisdiction cannot be conferred by waiver resulting from a party's failure to interpose a timely objection to the assumption of jurisdiction. Lay Faculty Ass'n of Regional Secondary Schools of Archdiocese of Newark v. Roman Catholic Archdiocese of Newark, 122 N.J. Super. 260, supplemented 124 N.J. Super. 369 (App. Div. 1973), cert. den. 64 N.J. 153 (1973). Objection to jurisdiction of the court over the subject matter is effective whenever made. McKeeby v. Arthur, 7 N.J. 174 (1951). Of the 12 grounds of jurisdiction alleged by plaintiff, we find that only a few are colorable. A",jurisdiction
+606,1834705,1,4,"First, we turn to the issue of whether DMV complied with the notice requirement set forth in § 60-507(1). On February 27, 1992, DMV sent notice by certified mail to Wollenburg that his license was suspended effective March 18 for failure to establish financial responsibility. Section 60-507(1) provides in part: Notice of such suspension shall be sent by the Department of Motor Vehicles by certified mail to such operator not less than twenty days prior to the effective date of such suspension and shall state the amount required as security and the requirement of proof of financial responsibility. As stated, the return receipt bore the signature of Marie A. Wollenburg as Agent. It is Wollenburg's contention that DMV did not comply with the statutory requirement because the notice sent to him was not properly addressed and receipted. The purpose of addressing a letter is to assure that the letter is mailed to its intended receiver. Seeking a receipt for a letter is to prove that the letter was received by the intended receiver. In this case, there is absolutely no question that Wollenburg received the February 27 notice. It was sent by certified mail and receipted for by Wollenburg's mother, who had her son's permission to sign for the letter. The plain language of § 60-507(1) requires only that notice be sent by DMV by certified mail to such motor vehicle operator. It does not require that a return receipt be requested. Moreover, notice may be waived in writing or may be implied from unequivocal conduct. Versch v. Tichota, 192 Neb. 251, 220 N.W.2d 8 (1974). In Versch, this court held that the voluntary appearance by the city of Omaha when it was joined in the action and filed a petition was an unequivocal waiver of notice. Here, the record is clear that Wollenburg filed suit in the district court on March 19, the day after DMV's suspension of his license became effective. In doing so, Wollenburg waived any defect in service of the notice that DMV had suspended his driver's license by his unequivocal act of appealing that decision to the district court. Wollenburg also challenges the Motor Vehicle Safety Responsibility Act as not complying with the Due Process Clauses of the Constitutions of the United States and the State of Nebraska. It is Wollenburg's contention that by not requiring a hearing at the departmental level at which the licensee may present evidence and cross-examine witnesses, the licensee's due process rights are not protected. Wollenburg relies upon the safeguards set forth in this state's Administrative Procedure Act. This reliance is misplaced. Section 60-503(2) provides that [t]he appeal procedures described in the Administrative Procedure Act shall not apply to this [appeal procedure] section. Wollenburg also relies upon Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), in which the U.S. Supreme Court held that Georgia's motor vehicle responsibility law failed to provide an uninsured motorist procedural due process. The Court held that before a state may deprive a motorist of his driver's license and vehicle registration, a state must provide a forum for the determination of the question and a meaningful hearing `appropriate to the nature of the case.' 402 U.S. at 542, 91 S.Ct. at 1591. Following the Burson opinion, the U.S. Supreme Court found, in Jennings v. Mahoney, 404 U.S. 25, 92 S.Ct. 180, 30 L.Ed.2d 146 (1971), that the district court afforded the appellant procedural due process when it stayed the suspension order of the director of Utah's financial responsibility division pending completion of judicial review, and provided a hearing at which the appellant was afforded the opportunity to present evidence and cross-examine witnesses. In this case, Wollenburg's due process rights were similarly protected. He was given adequate notice, the suspension of his driver's license was stayed, and he was afforded an opportunity to present evidence and cross-examine witnesses at the hearing held in the district court for Gage County prior to the final suspension of his license. Under these circumstances, Wollenburg was afforded due process as required by Burson and Jennings. The due process requirements of Nebraska's Constitution are similar to those of the federal Constitution. Finally, we turn to whether the trial court erred in admitting into evidence the DMV transcript. Our holding in Hehn v. State, 206 Neb. 34, 290 N.W.2d 813 (1980), is dispositive of this issue. In that case, we stated: It is elementary that, if the District Court is to determine whether the director's action was correct and if the director is required by [§ 60-507(3) ] to consider all such reports and information filed in connection with the accident, then the record made before the director must be available to the District Court. To hold otherwise would ... in effect, be requiring the court to review a record without permitting that record to be admitted into evidence.... The fact is that the record made before the director is admissible as evidence in the District Court because [§ 60-507(3) ] plainly suggests that it is admissible. 206 Neb. at 36, 290 N.W.2d at 814-15. See, also, Wroblewski v. Pearson, 210 Neb. 82, 85, 313 N.W.2d 231, 233 (1981) (citing Hehn and holding that `[u]pon a petition for review of an order of suspension of an operator's license by the director of the Department of Motor Vehicles, the District Court is required to consider the record made before the director'). Wollenburg's complaint concerning the district court's admitting the DMV transcript into evidence is without merit. In addition to considering the transcript of the DMV's proceedings, the district court must give the appellant who is challenging the suspension of his driver's license an opportunity to adduce evidence. Moreover, the district court must consider any additional facts developed in the hearing before that court. See, Hehn v. State, supra ; Berg v. Pearson, 199 Neb. 390, 259 N.W.2d 275 (1977). Wollenburg's appeal in the district court was conducted in accordance with these principles. The issue before DMV is whether the evidence supports a finding that there is a reasonable possibility of a judgment. Wroblewski v. Pearson, supra . The scope of review of cases of this nature is a review of DMV's determination that there exists a reasonable possibility of a judgment. Id. It is uncontroverted in the evidence that at the time of the accident, Wollenburg was operating his pickup with only one lighted headlight and that he drove the pickup into a BN railroad car at a crossing on a county road after several railroad cars had already passed. The train was either moving slowly, at approximately 10 miles per hour, as indicated by a state patrolman's report, or stopped entirely, as reported by Wollenburg himself. The record does not reveal any obstructions which would have affected a driver's view at the time of the collision. Wollenburg was given an opportunity at the hearing in district court to rebut the facts set forth in the reports but presented no evidence contradicting them. In Crewdson v. Burlington Northern RR. Co., 234 Neb. 631, 452 N.W.2d 270 (1990), we held that a motorist approaching a railroad crossing has a duty to look and listen at a time and place when looking and listening will be effective to prevent an accident. Such motorist also has a duty to stop when a reasonably prudent person would have considered a stop necessary under the circumstances. Id. Moreover, a driver ordinarily has a duty to drive an automobile on a public street at night in such a manner that he or she can stop in time to avoid a collision with an object within the area lighted by his or her vehicle's headlights, and the driver is negligent if he or she fails to do so. See Mantz v. Continental Western Ins. Co., 228 Neb. 447, 422 N.W.2d 797 (1988). It is not the function of the Director of Motor Vehicles to weigh the alleged negligence or comparative negligence of the parties involved but to determine, based on reports, whether a reasonable possibility of liability exists. The facts contained in the reports before the director support a finding of a reasonable possibility of a judgment being rendered against Wollenburg. In the case at bar, the director considered the reports made in connection with the accident. Wollenburg was required to file an accident report form with DMV, and his report failed to set forth any figure for damages for which he might be liable. Therefore, the only estimate before the director was that of the state patrolman. The patrolman's estimate of the property damage to the railroad was $10,000, the amount the director set for the required security. The evidence presented to the district court did not contradict the patrolman's estimate. Therefore, DMV and the district court could properly conclude that there was a reasonable possibility of a $10,000 judgment against Wollenburg.",analysis
+607,4537458,1,4,"We have two sets of appeals: those taken following the June 18, 2018, orders and those taken after the district court awarded attorney fees to the relators. The first appeals were 7 § 84-712.01(3). 8 Id. 9 Aksamit Resource Mgmt., supra note 5. 10 Id. 11 Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 N.W.2d 100 (1998). 12 See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). - 789 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 premature. 13 We dismiss those appeals for lack of jurisdiction. We have jurisdiction over the second set of appeals.",jurisdiction
+608,886362,1,6,"¶ 68 Did the District Court err when it determined that DNRC did not retaliate against Beaver for filing a claim of discrimination when it assigned her to a six-month rather than an eight-month position? ¶ 69 Beaver alleged in the District Court that her assignment to the six-month firefighting position instead of one of the eight-month positions is evidence of retaliation against her for filing her discrimination complaint against DNRC with the Human Rights Commission. The District Court disagreed, concluding that Ahner's decision to place Beaver in the six-month position was not made because of her complaint. Beaver contends that the evidence demonstrates otherwise, arguing that, before the job restructuring, Beaver, Tovey and Kroll all worked the same amount of time each year, and that it was only after she filed her complaint with the Human Rights Commission that DNRC reduced her hours from nine months to six months per year while Tovey and Kroll continued to work eight months. ¶ 70 Beaver also points to Grady's friendship with Ness and the fact that Grady knew that something had happened between Beaver and Ness in White Sulphur Springs and also knew that, as a result of that event, Ness no longer worked for DNRC. Beaver does not allege, however, that Grady had actual knowledge that Beaver had indeed filed a complaint with the Human Rights Commission, and, in fact, the evidence indicates otherwise. However, Beaver maintains that the ultimate decision regarding who received which firefighting position rested with Ahner, and notes that Ahner did have actual knowledge that Beaver had filed a complaint with the Human Rights Commission. ¶ 71 A plaintiff bringing an action for retaliation under Title VII must first establish a prima facie case of retaliation by showing that she engaged in a protected activity, that she was thereafter subjected to adverse employment action by her employer, and that there was a causal link between the two. Wrighten v. Metropolitan Hosps., Inc. (9th Cir.1984), 726 F.2d 1346, 1354 (citation omitted). Beaver argues that the first two elements were satisfied by virtue of filing her initial complaint with the Human Rights Commission, thereby engaging in a protected activity, and by demonstrating that DNRC thereafter restructured her position differently than her co-workers, thereby suffering an adverse employment decision by DNRC. ¶ 72 She argues that the third Wrighten element, that there was a causal link between the protected activity and the adverse employment decision, is evidenced by the temporal connection between the filing of her complaint and her assignment to the six-month position along with the fact that Grady, although not knowing that Beaver had filed a complaint with the Human Rights Commission, was aware that something had happened in White Sulphur Springs and that the result of that event is that Ness no longer worked at DNRC. Beaver also points out that Grady and Ness were friends, that Grady sat next to Ness during the trial, and, further, that Ahner, the person who made the final decision regarding Tovey, Kroll and Beaver's employment, did know that Beaver had filed a complaint with the Human Rights Commission and, in fact, was the person who prepared the response on behalf of DNRC. ¶ 73 The District Court concluded that neither the second nor third element was satisfied, finding that, rather than suffering an adverse employment decision, Beaver received a better position, yet less favorable than either Kroll or Tovey, both of whom had more firefighting experience than Beaver. The District Court concluded that the decision to assign Beaver to a six-month position was based on the employees' relative firefighting experience, and not because she had filed a complaint against DNRC. ¶ 74 The District Court's findings are supported by substantial evidence. As noted by the District Court, the evidence indicated that the three employees had different training in the various areas pertinent to the job. Beaver had more training than Kroll as a strike team leader, in fire suppression tactics and advanced fire behavior and helicopter operations, but that training was not required for the eight-month position. Both Kroll and Beaver began their employment at DNRC in 1990, Beaver beginning in an entry level position and having no previous firefighting experience, and Kroll having previously been trained for wildland fires, having been a volunteer for the Baxendale Fire Department and working fighting fires in the 1980's. ¶ 75 The evidence also supports the District Court's finding that Beaver was better off after receiving the assignment to the six-month position than before her assignment, which the Court noted in concluding that the job assignment was not retaliatory. As a seasonal firefighter, Beaver was guaranteed only between sixty-five and seventy-one days of work each year, with all additional time being discretionary, depending on available funding, the fire season and other factors. However, Beaver, Tovey and Kroll had each worked both early and late in the fire season at the discretion of DNRC. It is only in these discretionary hours that Beaver claims a cut in work hours. Beaver's guaranteed core hours increased from approximately 568 hours per year to 1056 hours per year when Beaver was assigned to the six-month position. Further, Beaver admitted in her testimony that neither Ahner, Morris nor Grady was upset with her for filing a complaint with the Human Rights Commission. ¶ 76 We emphasize that Beaver's receipt of a better position than she formerly held does not, of itself, eliminate the possibility that she may have been retaliated against in the process of assigning the newly created, improved positions. However, based upon consideration of all the evidence presented, we hold that substantial evidence supported the District Court's conclusion that the DNRC had legitimate, non-retaliatory reasons for assigning Beaver to the six-month position instead of the eight-month position. Its decision is affirmed accordingly.",issues
+609,2118950,2,1,"Defendant maintains that the evidence is insufficient to prove him guilty beyond a reasonable doubt. Defendant argues that the evidence was circumstantial; that his evolving statements to the police and his allegedly incriminating statements were simply a misunderstanding; that the testimony against him was unreliable because the witnesses were motivated to lie; and that the evidence showed someone else could have committed the murder. When a defendant challenges the sufficiency of the evidence, it is not the function of this court to retry the defendant. People v. Hall, 194 Ill.2d 305, 329-30, 252 Ill.Dec. 653, 743 N.E.2d 521 (2000). A reviewing court must determine 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. People v. Young, 128 Ill.2d 1, 49 (1989). That is, '[o]nce a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.' (Emphasis in original.) People v. Tye, 141 Ill.2d 1, 14, 152 Ill.Dec. 249, 565 N.E.2d 931 (1990), quoting People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). We will not reverse a conviction unless the evidence is so unreasonable, improbable or unsatisfactory that it raises a reasonable doubt of defendant's guilt. Hall, 194 Ill.2d at 330, 252 Ill.Dec. 653, 743 N.E.2d 521. First, defendant claims that the evidence raises reasonable doubt as to his guilt because the evidence equally implicates his brother, Marquis, in the murder. Evidence is sufficient to sustain a criminal conviction if the evidence satisfies the standard of proof beyond a reasonable doubt. Hall, 194 Ill.2d at 330, 252 Ill.Dec. 653, 743 N.E.2d 521. It is not necessary that the trier of fact find beyond a reasonable doubt as to each link on the chain of circumstances. Rather, the trier of fact must find only that the evidence taken together supports a finding of the defendant's guilt beyond a reasonable doubt. People v. Jones, 105 Ill.2d 342, 350, 86 Ill.Dec. 453, 475 N.E.2d 832 (1985). Here, the evidence taken together supports the jury's verdict. The State presented evidence that on the night of the murder, defendant made repeated attempts to contact and locate Watson. Defendant himself admitted that on the night of the murder he attempted to contact Watson. The State also presented testimony that on the night of the murder, Watson received a telephone call and that immediately after hanging up the telephone, he grabbed his car keys and stated that he was going to defendant's house. Next, the State offered evidence that Watson was found with 20 separate stab wounds two city blocks from defendant's home, and that within defendant's home the police retrieved an amplifier, large stereo speakers, subwoofers, speaker wires, and an empty knife sheath. During questioning after the murder, detectives observed that defendant had a small cut on his left finger. Defendant had no explanation for the cut at the time of the trial. Regarding the recovered stereo items, witnesses identified some of the equipment as belonging to Watson and other equipment which was identified as of the same type previously installed in Watson's car the week before his murder. One witness testified that during her conversation with defendant on the night of the murder, defendant asked about Watson's car and his new car stereo equipment. The State also entered into evidence several items of clothing and shoes from defendant's home. Although defendant asserted that he shared his clothing with Marquis, Marquis denied this fact, and the clothing containing bloodstains was identified as belonging to defendant. Detectives testified that some of the clothing recovered was wet and soaked with bleach and detergent, while other clothing was found in the dryer having been recently washed. A forensic scientist testified that some of this clothing contained human blood. Tests indicated that the gray sweat pants contained a mixture of DNA profiles and Wat son's profile could not be excluded, and that a white T-shirt contained a bloodstain with a DNA profile consistent with Watson's DNA profile. Further, Marquis identified the clothing offered into evidence as the clothing worn by defendant on the night of the murder. In addition, the State presented defendant's evolving statements to the police as evidence of his guilt. Particularly, defendant first told the police that he last saw Watson one month earlier but, when presented with conflicting information, admitted that he was with Watson one week earlier. Further defendant first stated that on the night of the murder he went to the liquor store with his cousin and returned home 45 minutes later, and went to bed at 1 a.m. Defendant, however, changed his statement and told the police that he went with his cousin to his aunt's house to use the telephone, and then returned home. When police detectives presented defendant with the recovered stereo equipment retrieved from his home, defendant implicated an individual named Teddy. When the detectives informed defendant that Teddy had an alibi, defendant changed his statement a fourth time. In his final statement, defendant implicated Marquis. Defendant, however, argues that his evolving statements to the police were his initial clumsy attempts to protect, his brother and, therefore, easily explain the foolish fabrication[s]. Defendant argues that this evidence cannot establish his guilt. When a defendant challenges the sufficiency of the evidence, it is not the province of this court to substitute its judgment for that of the jury on questions regarding the weight of the evidence. People v. Digirolamo, 179 Ill.2d 24, 43, 227 Ill.Dec. 779, 688 N.E.2d 116 (1997). It is the function of the trier of fact to assess the credibility of the witnesses, to determine the appropriate weight of the testimony, and to resolve conflicts or inconsistencies in the evidence. People v. McDonald, 168 Ill.2d 420, 444, 214 Ill.Dec. 125, 660 N.E.2d 832 (1995). Therefore, reversal is not warranted simply because the defendant alleges `that a witness was not credible' or that the jury assigned too much weight to a particular piece of evidence. People v. Brown, 185 Ill.2d 229, 250, 235 Ill.Dec. 626, 705 N.E.2d 809 (1998), quoting People v. Byron, 164 Ill.2d 279, 299, 207 Ill.Dec. 453, 647 N.E.2d 946 (1995). A jury is not obligated to accept any possible explanation compatible with the defendant's innocence and elevate it to the status of reasonable doubt. People v. Herrett, 137 Ill.2d 195, 206, 148 Ill.Dec. 695, 561 N.E.2d 1 (1990); People v. Manning, 182 Ill.2d 193, 211, 230 Ill.Dec. 933, 695 N.E.2d 423 (1998) (speculation that another person might have committed the offense does not necessarily raise a reasonable doubt of the guilt of the accused). In this case, the jury was presented with conflicting testimony. Defendant's explanation of the retrieved stereo equipment and his conduct on the night of the murder were contradicted by Marquis' testimony. Marquis testified that his brother woke him up on the night of the murder. At defendant's request, Marquis helped defendant carry stereo equipment into the house. Marquis testified that defendant admitted that he stole the equipment from Watson, but did not mention that he murdered Watson. Marquis also identified the clothing taken from the house by the police as defendant's, and testified that the clothing was worn by defendant on the night of the murder. It is the jury's function to resolve the conflicts in the evidence, which they did, against defendant. See Hall, 194 Ill.2d at 332, 252 Ill.Dec. 653, 743 N.E.2d 521 (the jury is not required to disregard inferences which flow normally from the evidence and to search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt), citing McDonald, 168 Ill.2d at 447, 214 Ill.Dec. 125, 660 N.E.2d 832. For these same reasons, we also reject defendant's arguments that his alleged statement to the detective that he was going to hell and going to take everyone with him was a misunderstanding and too ambiguous to indicate responsibility, and that his incriminating statement to Officer Swain was a misunderstanding and insufficient evidence of guilt because it is improbable and unreasonable to believe that he confessed to the murder. Last, we address defendant's argument that jailhouse informants are unreliable witnesses because they are motivated to fabricate evidence against others in return for leniency and, thus, their testimony cannot be the basis for his conviction. As an initial matter, though Scott testified that he had hoped to receive leniency for his pending felony and misdemeanor charges in return for his testimony against defendant at trial, there is no evidence in the record that his hopes were fulfilled. Nonetheless, regarding defendant's allegations that Scott's testimony is unreliable evidence of his guilt, it is well settled that the credibility of a government informant, as with any other witness, is a question for the jury. Manning, 182 Ill.2d at 210, 230 Ill.Dec. 933, 695 N.E.2d 423, citing United States v. Trujillo, 959 F.2d 1377, 1384-85 (7th Cir.1992); United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir.1989); People v. Irby, 237 Ill. App.3d 38, 58-59, 177 Ill.Dec. 177, 602 N.E.2d 1349 (1992). Regarding the use of informants our Supreme Court has stated, The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury. Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 418, 17 L.Ed.2d 374, 387 (1966). In the present case, the jury heard opposing accounts from two jailhouse informants and the defendant himself. The jury heard the testimony of jailhouse informant Britton. Britton testified that Scott fabricated his testimony. Further, defendant himself testified that Scott fabricated his testimony. Conversely, however, the State impeached Britton and presented testimony and evidence corroborating Scott's testimony. For example, on crossexamination of defendant the jury heard defendant admit to having a lot of conversations with Scott in the county jail. Defendant further admitted telling Scott that he called Watson on the night of the murder. Consistent with Scott's testimony, defendant's clothing contained bleach. Consistent with Scott's testimony, the blood-tainted and bleached clothing allegedly worn by defendant matched the clothing described by Scott. Consistent with Scott's testimony, the victim had multiple stab wounds. Further, consistent with Scott's testimony, the recovered stereo equipment matched the stolen items described by Scott. The jury heard defendant's claims that Scott gathered his detailed knowledge about the clothing worn by defendant from the newspaper, and that by luck Scott made up facts that happened to be accurate, such as the presence of bleach on defendant's clothing. On the issue of Scott's credibility, we will not substitute our judgment for that of the jury. Additionally, we disagree with defendant's assertion that his conviction was based upon Scott's testimony. Certainly, Scott's testimony was relevant; however, absent his testimony there was certainly substantial evidence to sustain defendant's conviction. For the aforementioned reasons, we cannot say that the evidence of guilt was so improbable, unsatisfactory, or unreasonable that no rational fact finder could have found defendant guilty beyond a reasonable doubt.",sufficiency of the evidence
+610,2634399,1,11,"We affirm the judgment in its entirety. WE CONCUR: KENNARD, BAXTER, WERDEGAR, CHIN, MORENO, and CORRIGAN, JJ.",conclusion
+611,2133610,1,1,"On February 20, 2001, the State filed a petition to have respondent committed to the Department of Health and Human Services as a sexually violent person. The petition alleged that respondent has a history of committing sexually violent offenses, including a 1988 conviction for the aggravated criminal sexual abuse of a child under the age of 13 and a 1992 conviction for the aggravated criminal sexual assault of a child under the age of 13. In 1996, respondent pleaded guilty to the criminal sexual assault of his 13-year-old stepdaughter and was sentenced to 10 years in prison. In exchange for that guilty plea, the State agreed to dismiss two additional charges of aggravated criminal sexual assault that were pending against respondent, one involving a 13-year-old girl and the other involving a 14-year-old girl. The petition further alleged that respondent was scheduled for release from prison on February 21, 2001, and that he suffers from numerous mental disorders, including paraphilia and antisocial personality disorder, that make it substantially probable that he will again engage in acts of sexual violence. A bench trial commenced, and respondent filed a motion in limine as to the State's two expert witnesses, Dr. Jacqueline N. Buck and Dr. Paul J. Heaton. Dr. Buck and Dr. Heaton are clinical psychologists who evaluated respondent and were prepared to testify that respondent is a sexually violent person as defined by the Act. In support of his motion, respondent argued that, in preparing their opinions, Dr. Buck and Dr. Heaton relied upon certain actuarial risk assessment instruments, including the Minnesota Sex Offender Screening Tool — Revised (MnSOST-R), the Static-99, the Violent Risk Assessment Guide (VRAG), and the Sex Offender Risk Assessment Guide (SORAG). According to respondent, actuarial risk assessment is a novel scientific methodology that has yet to gain general acceptance in the psychological and psychiatric communities. Accordingly, respondent argued, any expert testimony based upon actuarial risk assessment must be excluded under Frye. In response, the State argued that (1) actuarial principles are not the least bit novel and therefore are not subject to Frye ; and (2) even if the particular actuarial instruments at issue are novel, they have gained general acceptance in the relevant psychological and psychiatric communities. The trial court agreed with the State, denied respondent's motion, and allowed Dr. Buck and Dr. Heaton to testify. Dr. Buck testified that she is a licensed clinical psychologist employed by the special evaluation unit of the Illinois Department of Corrections (Department). In this capacity, Dr. Buck was assigned to evaluate respondent and determine whether he would be eligible for civil commitment under the Act following his release from prison. Dr. Buck's evaluation began with a review of the master file for each of respondent's several convictions. The master file includes all of the records relating to the particular conviction, including police reports, criminal court records, Department records, and any psychological or psychiatric evaluations. After reviewing the master files, Dr. Buck met with the three other psychologists employed by the Department's special evaluations unit to discuss respondent's case. All four psychologists agreed that respondent appeared to fit the criteria for civil commitment and that a face-to-face interview should be conducted. Dr. Buck interviewed respondent for 90 minutes at the Big Muddy River Correctional Center. Based upon both the interview and her review of respondent's files, Dr. Buck concluded that respondent suffers from paraphilia, alcohol abuse in a controlled environment, and antisocial personality disorder with narcissistic tendencies. According to Dr. Buck, these mental disorders affect a person's emotional and volitional capacity and predispose that person to engage in acts of sexual violence. Dr. Buck's evaluation also included an assessment of respondent's probability of reoffending. She first used a personality test called the Hare Psychopathy Checklist — Revised. According to Dr. Buck, respondent scored a 32 on this test, placing him in a category of persons who are two to four times more likely to reoffend with acts of violence. Dr. Buck then used a number of actuarial risk assessment instruments, including the MnSOST-R, the Static-99, the VRAG, the SORAG, and the Hanson and Bussiere meta-analysis. The MnSOST-R was developed using a group of 256 sex offenders who were followed for six years after their release from the Minnesota Department of Corrections. Dr. Buck gave respondent a score 13 on the MnSOST-R, which places him in the category of offenders having an 88% chance of reoffending within six years. The Static-99 is based upon a study of thousands of sex offenders from England, Canada, and the United States. According to Dr. Buck, the creators of the Static-99 regard a score of six or higher as being a very high risk. Dr. Buck gave respondent a score of seven, which places him in the top twelve percent of persons who were scored on this tool and who sexually reoffended. The VRAG is an instrument designed to predict violent reoffenders, as opposed to sexual reoffenders. On the VRAG, Dr. Buck gave respondent a score of 20, which places him in the category of offenders having a 55% chance of reoffending within 7 years and a 64% chance of reoffending within 10 years. On the SORAG, which examines the risk of sexual recidivism, Dr. Buck gave respondent a score of 30, which placed him at the 98th percentile in terms of risk to reoffend. The Hanson and Bussiere meta-analysis was derived from a review of 51 published studies, which collectively covered approximately 28,000 convicted and released sex offenders. The study evaluated more than 100 variables and identified those that are statistically significant in terms of distinguishing offenders who are likely to sexually reoffend from offenders who are unlikely to sexually reoffend. According to Dr. Buck, respondent has a number of risk factors that stem from the study. Dr. Buck concluded her testimony with the opinion that, if respondent is released to the community, it is substantially probable that he will reoffend with additional acts of sexual violence. Dr. Heaton testified that he is a clinical psychologist employed by Affiliated Psychologists, Ltd., in Chicago, which has contracted with the Illinois Department of Human Services to provide psychological assessments in connection with the Act. Dr. Heaton begins each assessment with a review of all available documents, including the master file, medical records, school records, and psychological evaluations. He then administers a battery of psychological tests, which is followed by a comprehensive clinical interview. Finally, after compiling all of the collected information, as well as any available actuarial data, Dr. Heaton writes his evaluation. Following his interview with and testing of respondent, Dr. Heaton diagnosed respondent with paraphilia, alcohol abuse, and antisocial personality disorder, all of which affect a person's emotional and volitional capacity and predispose that person to commit acts of sexual violence. Dr. Heaton then employed several actuarial instruments to assess respondent's probability of reoffending. The Hanson and Bussiere meta-analysis identified several risk factors that reinforced his clinical impressions. On the Static-99, Dr. Heaton testified that, although Dr. Buck scored respondent a little bit higher than he did, Dr. Heaton's score likewise placed respondent in the category of individuals who were found to have a high risk of reoffense. On the MnSOST-R, Dr. Heaton gave respondent a score of 13, which placed respondent in the range representing a high risk for reoffense. Based upon both his clinical evaluation of respondent and the actuarial data, Dr. Heaton concluded that respondent suffers from mental disorders that predispose him to act in sexually violent ways and that he therefore meets the criteria for commitment under the Act. At this point, the State rested, and respondent declined to put on any evidence. The trial court found respondent to be a sexually violent person under the Act and committed him to the Department of Health and Human Services for care and treatment in a secured facility. Respondent appealed, in part arguing that the trial court erred in admitting the testimony of Dr. Buck and Dr. Heaton without first conducting a Frye hearing. Relying upon the appellate court's decision in People v. Taylor, 335 Ill.App.3d 965, 270 Ill.Dec. 361, 782 N.E.2d 920 (2002), the appellate court agreed with respondent, reversed the trial court's judgment, and remanded the cause for further proceedings. No. 5-02-0579 (unpublished under Supreme Court Rule 23). We allowed the State's petition for leave to appeal. 177 Ill.2d R. 315(a).",facts
+612,2348413,1,3,"For the reasons set out above, Moroz's appeal is denied and dismissed. The judgment of the Superior Court is affirmed. The papers of the case may be returned to the Superior Court.",conclusion
+613,2680570,1,1,"Sergeant Lynch contends that the ALJ found that she unintentionally left her firearm in the bathroom because she was distracted, and consequently, the ALJ erred by using an unintentional act as the basis for finding gross misconduct. She maintains that gross misconduct (as well as simple misconduct) requires employee actions that are ―intentional, deliberate, and willful.‖ She further argues that a ―failure to notice‖ that she left her firearm in the bathroom does not constitute ―conscious disregard‖ or a ―conscious choice of a course of action.‖ Sergeant Lynch also contends that the ALJ erred by ―treat[ing] Sergeant Lynch‘s decision to go to work while knowing she was distracted as if it were disqualifying conduct,‖ even though that was not Masters Security‘s stated reason for terminating her employment. Masters Security urges us to affirm the ALJ‘s determination, and asserts that the ALJ ―made a finding of fact (which Sergeant Lynch unquestionably admits) that Ms. Lynch intentionally came to work distracted,‖ and that ―it would defy logic for her to argue that she ‗unintentionally‘ reported to work.‖ Masters Security further argues that Sergeant Lynch‘s ―conduct violated [its] security interests in building security (and threatened the public at large),‖ and that 11 although the ALJ ―found that the employer did not prove a violation of company rules,‖ nevertheless, as this court declared in another case, ―gross misconduct may still be found when rules exist and the employee‘s conduct ‗disregards standards of behavior which an employer has a right to expect of an employee.‘‖ Masters Security insists that ―[Sergeant] Lynch intentionally came to work in such a clouded mental state that she abandoned her loaded firearm in a publicly accessible bathroom for 15 minutes,‖ that the ―ALJ‘s findings are not arbitrary, capricious, or an abuse of discretion, and they are supported by substantial evidence on the record.‖3 Sergeant Lynch responds, in her reply brief, by reiterating the basic arguments in her main brief. However, she emphasizes her contention regarding 3 Masters Security also argues that Sergeant Lynch violated the company‘s rules regarding firearms. However, the ALJ specifically noted in the Final Order that Masters Security ―presented no credible evidence of any policy that would have required [Sergeant Lynch] to place her gun elsewhere than the stall shelf while she used the toilet.‖ Masters Security points to a number of documents that articulate policies for the safekeeping of firearms. However, none of these documents were admitted at the hearing and we may not consider them in support of Masters Security‘s contention here. See Mack v. District of Columbia Dep’t of Emp’t Servs., 651 A.2d 804, 806 (D.C. 1994) (―[I]n reviewing the final decision of an agency, we are limited to the record on appeal and cannot consider issues or evidence not presented to the agency.‖). The burden was upon Masters Security to prove a rule violation at the hearing, 7 DCMR §§ 312.7, 312.8 (1994), and the company has presented nothing on appeal to challenge the ALJ‘s determination that it failed to meet that burden. 12 the ALJ‘s reliance on a reason for her termination that was not stated by Masters Security; she asserts, ―it is settled law that the denial of unemployment compensation cannot be based on conduct that was not the actual basis of the employee‘s termination.‖ ―Our review of OAH decisions is limited, and we must affirm unless the decisions of the OAH are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.‖ Savage-Bey v. La Petite Acad., 50 A.3d 1055, 1060 (D.C. 2012) (internal quotation marks and citation omitted). In addition, as we have said previously: we review OAH decisions solely to determine whether (1) [the ALJ] made findings of fact on each materially contested issue of fact, (2) substantial evidence supports each finding, and (3) [the ALJ‘s] conclusions flow rationally from its findings of fact. . . . We defer to the ALJ‘s factual findings as long as they are supported by substantial evidence. . . . Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. . . . However, we review the ALJ‘s legal conclusions of whether a terminated employee‘s actions constitute gross or simple misconduct de novo. Badawi v. Hawk One Sec., Inc., 21 A.3d 607, 613 (D.C. 2011) (internal quotation marks and citations omitted). 13 Our analysis of the issues presented in this case is guided by the following legal principles, statutory and regulatory provisions. An employee is disqualified from immediate unemployment benefits if that person is discharged for either gross misconduct or ―other than gross misconduct.‖ D.C. Code § 51-110 (b) (2012 Repl.).4 ―An employer seeking to prevent the payment of unemployment compensation bears the burden of proving that the employee engaged in misconduct (gross or otherwise).‖ Gilmore v. Atlantic Servs. Grp., 17 A.3d 558, 563 (D.C. 2011) (quoting Morris v. United States Envtl. Prot. Agency, 975 A.2d 176, 181-82 (D.C. 2009)) (internal quotation marks omitted). ―Gross misconduct‖ is defined in the District‘s Municipal Regulations as any ―act which deliberately or willfully violates the employer‘s rules, deliberately or willfully threatens or violates the employer‘s interests, shows repeated disregard for the employee‘s obligation to the employer, or disregards standards of behavior which an employer has a right to expect of its employee.‖ 7 DCMR § 312.3. ―Other than gross misconduct‖ is defined as any ―act or omission by an employee 4 The two-tiered nature of this statutory regime provides a more severe restriction on the benefits of employees discharged for gross misconduct than for employees discharged for simple misconduct. Compare D.C. Code § 51-110 (b)(1) (gross misconduct precludes eligibility for benefits until the employee ―has been employed in each of 10 successive weeks‖), with § 51-110 (b)(2) (simple misconduct precludes eligibility for benefits ―for the first 8 weeks‖ in which they are otherwise payable). 14 which constitutes a breach of the employee‘s duties or obligations to the employer, a breach of the employment agreement or contract, or which adversely affects a material employer interest.‖ 7 DCMR § 312.5. This type of ―simple misconduct‖—as we have often referred to it—includes ―acts where the severity, degree, or other mitigating circumstances do not support a finding of gross misconduct.‖ Id. ―[I]mplicit in [the] definition of ‗misconduct‘ is that the employee intentionally disregarded the employer‘s expectations for performance.‖ BowmanCook v. Washington Metro. Area Transit Auth., 16 A.3d 130, 135 (D.C. 2011) (quoting Washington Times v. District of Columbia Dep’t of Emp’t Servs., 724 A.2d 1212, 1217-18 (D.C. 1999)). We have ―clarified that ‗intentionality or its equivalent . . . is an element‘ of simple misconduct‖ as well as gross misconduct. Scott v. Behavioral Research Assocs., 43 A.3d 925, 931 (D.C. 2012) (quoting Hamilton v. Hojeij Branded Food, Inc., 41 A.3d 464, 476 (D.C. 2012)). Thus, ―[w]ithout more, proof of ordinary negligence cannot establish gross misconduct within the meaning of [the District‘s] unemployment compensation statute, because decisions of this court make it abundantly clear that an employee‘s actions must be intentional, deliberate, or willful to amount to gross misconduct.‖ Capitol Entm’t Servs. v. McCormick, 25 A.3d 19, 23-24 (D.C. 2011). Furthermore, ―[r]ead 15 literally, the definition of [other than gross misconduct] . . . encompass[es] acts and omissions that result from ordinary negligence,‖ but ―the definition of simple misconduct cannot be read so broadly, and . . . ordinary negligence without more cannot constitute simple misconduct disqualifying a dismissed employee from receiving unemployment compensation benefits.‖ Id. at 24-25. To establish that ―more‖ is involved than ordinary negligence, and hence, that misconduct has been established, we have required ―negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or [the] show[ing] [of] an intentional and substantial disregard of the employer‘s interest or of the employee‘s duties and obligations to the employer.‖ Id. at 28 (quoting Hickenbottom v. District of Columbia Unemployment Comp. Bd., 273 A.2d 475, 477-78 (D.C. 1971)). This type of negligence, referred to as ―gross negligence or reckless disregard of the consequences, . . . is typified by highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.‖ Id. (internal quotation marks and citation omitted). This court also has declared that ―[t]he term gross negligence requires such an extreme deviation from the ordinary standard of care as to support a finding of wanton, willful and reckless disregard or conscious indifference for the 16 rights and safety of others.‖ Id. n.36 (quoting District of Columbia v. Walker, 689 A.2d 40, 44-45 (D.C. 1997)) (internal quotation marks omitted). Not only does the employer bear the burden of proving that the employee is disqualified from eligibility for benefits due to gross or simple misconduct, but an ALJ‘s denial of benefits ―must be based fundamentally on reasons specified by the employer for the discharge.‖ Smithsonian Inst. v. District of Columbia Dep’t of Emp’t Servs., 514 A.2d 1191, 1194 (D.C. 1986); see also Brown v. Corrections Corp. of Am., 942 A.2d 1122, 1124 (D.C. 2008). An ALJ cannot ―reject the employer‘s rationale and yet deny benefits on another misconduct theory independent of the employer‘s own determination.‖ Jones v. District of Columbia Unemployment Comp. Bd., 395 A.2d 392, 395 (D.C. 1978); see also American Univ. v. District of Columbia Dep’t of Labor, 429 A.2d 1374, 1375 (D.C. 1981) (―[T]he employer‘s reason for discharging the employee must be scrupulously examined in all levels of the appeal process.‖); Green v. District of Columbia Unemployment Comp. Bd., 346 A.2d 252, 257 (D.C. 1975) (―The existence of grounds upon which the employee might have been discharged is immaterial if they were not in fact the grounds of discharge.‖). Therefore, ―we must overturn a denial of benefits erroneously based on conduct substantially different from that 17 which is specified as the reason for initial discharge.‖ American Univ., supra, 429
+The record here is clear that Masters Security terminated Sergeant Lynch because she left her loaded firearm in the restroom. Captain Nelson testified that she ―left a weapon in the bathroom stall, which is [a] termination offense, according to the employee handbook of Masters Security.‖ But he also testified that Major Battle informed him that the reason Sergeant Lynch‘s employment was terminated was because she left her loaded weapon in the bathroom.5 The ALJ concluded that Masters Security had not proven a violation of its rules. Instead of continuing her final order by addressing whether Sergeant Lynch‘s act of leaving her loaded gun in the bathroom, standing alone, nevertheless constituted gross negligence, the ALJ fashioned her own theory of termination, the ―distraction theory.‖ That theory was based on Captain Nelson‘s answer to the ALJ‘s question about whether Captain Nelson had spoken to Sergeant Lynch ―to find out why she had left the gun in the bathroom.‖ In 5 There was no testimony at the hearing that Masters Security‘s reason for releasing Sergeant Lynch from employment was because she chose to come into work while in a distracted state of mind. 18 response, Captain Nelson asserted that he believed Sergeant Lynch ―has a sick person in her family, and her mental state wasn‘t right at the time.‖ Upon hearing Captain Nelson‘s response, the ALJ said, ―So, she was distracted?‖ Captain Nelson replied, ―Yes, Ma‘am.‖ From this exchange, the ALJ declared that Sergeant Lynch ―knew that she was distracted, but [she] went to work anyway,‖ and ―although she knew she was distracted by worry about her mother, [she] failed for 15 minutes to notice that she did not have possession of her gun.‖ Thus, concluded the ALJ, Sergeant Lynch‘s ―actions were reckless, and constitute misconduct,‖ and further, ―those who are armed security personnel must also monitor themselves to ensure that they are not too impaired, either by drowsiness, distraction, or medication, to safeguard their weapons.‖ The ALJ‘s final order and order denying reconsideration reflect a finding of gross misconduct, not because of the employer‘s stated reason for termination (given by Major Battle after his consultation with Vice President Nichols) – that Sergeant Lynch left her loaded weapon in the bathroom – but because Sergeant Lynch went to work knowing ―she was distracted by worry about her mother,‖ and consequently, she failed ―to notice that she did not have possession of her gun,‖ and that she had left her ―loaded weapon in a[] publicly-accessible place.‖ Masters Security appears to concede that this was the basis of the ALJ‘s finding of gross 19 misconduct; in its brief the company states that Sergeant Lynch‘s ―abandonment of the loaded firearm was the direct result of her gross misconduct in reporting to work in a distracted state, not the act the ALJ relied on to find gross misconduct.‖ In specifying one of the reasons why Sergeant Lynch‘s conduct constituted gross misconduct, Masters Security again maintained that ―she deliberately and willfully reported to work distracted, causing her to abandon her loaded firearm in a publicly accessible bathroom.‖ But, deliberately and willfully reporting to work in a distracted state was not Masters Security‘s articulated reason for terminating Sergeant Lynch, and this court‘s case law makes clear that an ALJ‘s denial of unemployment compensation benefits ―must be based fundamentally on reasons specified by the employer for the discharge.‖ Smithsonian Inst., supra, 514 A.2d at 1194. Here, the ALJ‘s finding of gross misconduct is grounded, impermissibly, ―on another misconduct theory independent of [Masters Security‘s] own determination.‖ Jones, supra, 395 A.2d at 395. Consequently, because it is ―not in accordance with the law,‖ Savage-Bey, supra, 50 A.3d at 1060, we are constrained to reverse OAH‘s decision. However, we remand this case to OAH, with instructions that the ALJ consider whether the existing record reveals that Masters Security proved by a preponderance of the evidence that Sergeant Lynch‘s act of leaving her weapon in 20 a publicly accessible place – standing alone and regardless if doing so violated her employer‘s stated rule – is the kind of gross negligence that we have equated with intentionality due to the serious harm that could ensue, that is, whether the stated act constitutes ―highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.‖6 Capitol Entm’t Servs., supra, 25 A.3d at 28; see also Bowman-Cook, supra, 16 A.3d at 135. So ordered. FISHER, Associate Judge, concurring: I join Judge Reid‘s opinion, agreeing that we cannot uphold the ALJ‘s finding of gross misconduct because it is based on different reasons than those given by the employer for its decision to terminate Sergeant Lynch. Moreover, Masters Security failed to prove that Sergeant Lynch had violated its rules about the safeguarding of weapons. This is regrettable because Sergeant Lynch created a very dangerous situation by leaving her loaded weapon behind in a restroom accessible to the public. Where there is such a high 6 The remand findings and conclusions should be based on the existing record because, as we said in Smithsonian Inst., supra, ―We see no need to reopen the hearing, thereby giving the employer a second bite at the proverbial apple; rather the [ALJ] on remand shall make the necessary finding based on the existing record.‖ 514 A.2d at 1195. 21 risk of serious injury, ordinary negligence should be sufficient to support a finding of misconduct. If the current statutes and regulations do not permit that conclusion, they should be amended to do so.",analysis
+614,2777252,1,5,"A court may exercise general jurisdiction over a [nonresident defendant] when its contacts with the forum state are so continuous and systematic as to render [the defendant] essentially at home in the forum State. Viega, 130 Nev. at , 328 P.3d at 1156-57 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. , 131 S. Ct. 2846, 2851 (2011)); see also Arbella Mut. Ins. Co., 122 Nev. at 513, 134 P.3d at 712 ([G]eneral personal jurisdiction exists when the defendant's forum state activities are so substantial or continuous and systematic that it is considered present in that forum and thus subject to suit there, even though the suit's claims are unrelated to that forum. (internal quotations omitted)). A general jurisdiction inquiry calls for an appraisal of a [defendant's] activities in their entirety, nationwide and worldwide. Daimler AG v. Bauman, 571 U.S. , n.20, 134 S. Ct. 746, 762 n.20 (2014). SUPREME COURT OF NEVADA 8 (0) I947A Op In support of its prima facie showing of general personal jurisdiction over Fulbright & Jaworski, 5 Verano introduced evidence showing that a Fulbright & Jaworski attorney was a registered lobbyist during both the 2007 and 2009 Nevada legislative sessions and that seven Fulbright & Jaworski attorneys had been admitted pro hac vice in Nevada for the purpose of representing two different clients in lengthy litigation, stemming back to the early 2000s and unrelated to the underlying litigation, that resulted in multi-million dollars of verdicts. Contrary to the district court's conclusion that this evidence was sufficient to make a prima facie showing of general jurisdiction over Fulbright & Jaworski, we are not persuaded. In isolation, the evidence of Fulbright & Jaworski's activities in Nevada may arguably be substantial, but those activities presumably comprise only a fraction of Fulbright & Jaworski's overall business. See Daimler AG, 571 U.S. at n.20, 134 S. Ct. at 762 n.20. Thus, in this case, we conclude that a registered lobbyist during two legislative sessions and pro hac vice appearances by Fulbright & Jaworski attorneys in two lengthy lawsuits in Nevada that result in jury verdicts in their clients' favor are not substantial activities that are so continuous and systematic that Nevada can be considered Fulbright & Jaworski's home. To conclude otherwise would subject Fulbright & Jaworski to suit in Nevada in connection with any claim that any of its clients throughout the world may 5Although the district court also determined that Macon was subject to general jurisdiction in Nevada, the basis for that determination is unclear, as the record contains no evidence to suggest that Macon's contacts with Nevada were such that she could be subject to general personal jurisdiction. Thus, we do not further discuss this issue as it pertains to Macon. SUPREME COURT OF NEVADA 9 (0) 1947A 97(ite9,0 have against the firm. See Arbella Mut. Ins. Co., 122 Nev. at 513, 134 P.3d at 712. Based on this reasoning, we conclude that Verano failed to make a prima facie showing that petitioners were subject to general personal jurisdiction, and the district court improperly used general jurisdiction as a basis for denying petitioners' motion to dismiss. Verano has not made a prima facie showing of specific personal",jurisdiction
+615,2586477,1,1,[¶ 4] The dispositive issue in this case is whether Robinson properly supported its motion for summary judgment as required by W.R.C.P. 56 and our summary judgment case law.,issues
+616,853623,2,6,"Baxter contends that the evidence was insufficient to convict him of murder. This Court will affirm the conviction if there is sufficient probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Garrett v. State, 714 N.E.2d 618, 621 (Ind.1999). We do not reweigh the evidence or assess the credibility of the witnesses, id., and we consider only the evidence that supports the verdict and the reasonable inferences to be drawn therefrom, Harrison v. State, 707 N.E.2d 767, 788 (Ind.1999). In order to be found guilty of murder based on accomplice liability, a jury must find beyond a reasonable doubt that a defendant knowingly or intentionally aid[ed], induce[d], or cause[d] another person to commit an offense. Ind.Code § 35-41-2-4 (1998). A defendant's mere presence at the crime scene, or lack of opposition to a crime, standing alone, is insufficient to establish accomplice liability. See Harris v. State, 425 N.E.2d 154, 156 (Ind.1981). These factors, however, may be considered in conjunction with a defendant's course of conduct before, during, and after the crime, and a defendant's companionship with the one who commits the crime. See id. At trial, Williams testified that Woods was carrying a gun in his pocket on the day of the crime, that Woods was fumbling with his side in the back seat, and that Woods always carried a gun. Baxter reported that he had grown up with Woods, knew Woods better than the other passengers that night, and also knew that Woods had spent time in prison. Williams also testified that, at one point, he expressed concern about injuring another driver on the road, at which point everyone turned around. Woods responded, urging that the chase continue. Despite Williams' alleged urging to abandon the chase, Baxter continued in pursuit of Knoebel for seven to ten minutes. The jury was free to believe Williams' testimony, even if contradictory, tending to establish that Baxter was aware that Woods had a gun and wanted to fire it at Knoebel's van. The jury was also free to infer from Baxter's continued pursuit of the van that he was guilty beyond a reasonable doubt of knowingly or intentionally aiding Williams in committing murder. Thus, the evidence was sufficient to uphold the verdict.",sufficiency of the evidence
+617,877549,1,2,"The District Court concluded that plaintiff Jeanne had established her right to rescind her part of the transaction which created the corporation, as follows: 1. Plaintiffs have established their right to have the transaction whereby Plaintiff, Jeanne Skierka, and Defendant, John Skierka, transferred asserts to Skierka Brothers, incorporated, [sic] in exchange for stock rescinded on the basis that the acts and failures to act of the Defendant, John Skierka, who was then a trustee in each of his capacities as executor of his deceased brother's estate and as surviving partner, resulted in placing him in control of said corporation and are, as a consequence, fraudulent pursuant to Section 72-20-207 of the Montana Code. That conclusion is based upon the trial court's findings that the two brothers had been equal partners in the ranch business; that defendant John was executor of his brother's estate; that at the time the incorporation took place, all parties believed control would be and was divided equally; but that, as a result of the accountant's valuation of the two houses, defendants John and Bernice ended up in control of the corporation. Past Montana cases have assumed, without explicitly stating, that an executor of a decedent's estate occupied a position of trusteeship over the assets and in favor of the devisees. See In re Jennings' Estate (1925), 74 Mont. 449, 461-462, 241 P. 648, 652; In re Eakins' Estate (1922), 64 Mont. 84, 93, 208 P. 956, 960. (The Montana Probate Code now specifically places all the duties of a trustee upon personal representatives. Section 72-3-610, MCA.) The trustee statutes, sections 86-301 et seq., R.C.M., 1947, now sections 72-20-201 et seq., MCA, provide as follows:  Trustee's obligation of good faith. In all matters connected with his trust, a trustee is bound to act in the highest good faith toward his beneficiary and may not obtain any advantage therein over the latter by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. (XX-XX-XXX, MCA.)  Trustee's influence not to be used for his advantage. A trustee may not use the influence which his position gives to him to obtain any advantage from his beneficiary. (XX-XX-XXX, MCA.) ...  Duty to disclose adverse interest. If a trustee acquires any interest or becomes charged with any duty adverse to the interest of his beneficiary in the subject of the trust, he must immediately inform the latter thereof and may be at once removed. (XX-XX-XXX, MCA.)  Violation of obligations as fraud. Every violation of the provisions of the preceding sections of this chapter is a fraud against the beneficiary of the trust. (XX-XX-XXX, MCA.)  Presumption against trustees. All transactions between a trustee and his beneficiary during the existence of the trust or while the influence acquired by the trustee remains by which he obtains any advantage from his beneficiary are presumed to be entered into by the latter without sufficient consideration and under undue influence. (XX-XX-XXX, MCA.) In its Memorandum on Order Denying Post-trial Motions, the District Court gives its reasons for finding fraud: ... At the time the corporation was created and the assets of the parties were transferred to it, John Skierka stood in a trust relationship to Jeanne Skierka, both as the surviving partner and as executor. More than that, he stood in a relationship of trust and confidence to Jeanne as one to whom she could look and did look for guidance and advice on business affairs. The evidence further shows that at this time Jeanne was still distraught over her husband's death and was not paying close attention to business details, although desirous of carrying out her late husband's desire to convert the partnership to a corporation. In the view of this Court, John Skierka had an affirmative duty to see that he and Jeanne retained positions of equality upon creation of the corporation, and it was a breach of his duty to permit a result which placed him in a superior position, in control of the corporation and the disposition of the stock. Although defendants argue that the transaction occurred in the presence of an independent attorney and accountant who explained the significance of the transaction to Jeanne Skierka, the attorney and accountant admit that they told Jeanne that the unequal stock ownership was not really important and they failed to discuss with her the by-law provision which restricts the sale of stock or to advise her what effect this could have on her as a minority stockholder. So it is clear that the full significance of the transaction was not explained to Jeanne. In the Court's view this situation comes within the definition of constructive fraud: `Any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice ...' Section 28-2-406, MCA. Because the result of the incorporation is to give defendants John and Bernice control over the assets which plaintiff Jeanne acquired by will from her late husband, the trustee statutes have clearly been violated, regardless of John's good intentions. Defendants cite the case of Boatman v. Berg (1978), 176 Mont. 208, 577 P.2d 382, as support for their argument that some wrongful act must be shown before a trustee can be found to have committed fraud upon his beneficiary. In Boatman, this Court found no wrongful act, because it was clear there that the trustee had given good and adequate consideration for all of the property which the plaintiff had transferred to him; the trustee did not benefit at the expense of the beneficiary. Here, defendant John personally benefited at the expense of plaintiff Jeanne when he gained the power to value Jeanne's stock and to control corporate operations. That condition was not present in Boatman. The evidence does show that Jeanne, since the date of incorporation, has been able to withdraw all the money she has needed and that John has managed the corporation competently and efficiently. However, competent management does not correct the initial wrong: defendant John obtained an advantage over plaintiff Jeanne without having fully disclosed the consequences.",issues
+618,1277029,1,8,"¶ 63 This case requires the court to decide whether the evidence is sufficient to sustain the jury's determination. The standard of review for sufficiency of the evidence is narrow: Appellate courts in Wisconsin will sustain a jury verdict if there is any credible evidence to support it. Morden, 235 Wis.2d 325, ¶ 38, 611 N.W.2d 659. Thus, if the evidence gives rise to more than one reasonable inference, [the court must] accept the particular inference reached by the jury. Id., ¶ 39, 611 N.W.2d 659. Similarly, the court must accept the jury's inference even if stronger and more convincing evidence supports a contradictory inference. Id. ¶ 64 In this case, the standard of review is even more stringent because the circuit court approved the jury's verdict. Id., ¶ 40, 611 N.W.2d 659. Thus: We afford special deference to a jury determination in those situations in which the trial court approves the finding of a jury. In such cases, this court will not overturn the jury's verdict unless there is such a complete failure of proof that the verdict must be based on speculation. Id. (quoting Coryell v. Conn, 88 Wis.2d 310, 315, 276 N.W.2d 723 (1979)). ¶ 65 With this standard of review firmly in mind, an appellate court must search the record for credible evidence that sustains the jury's verdict, not for evidence to support a verdict that the jury could have reached but did not. Morden, 235 Wis.2d 325, ¶ 39, 611 N.W.2d 659. After having reviewed the record, I conclude credible evidence supports the jury verdict. [2] ¶ 66 At trial, the defendants contested the causal connection between the accident and Hanson's radiculopathy. Causation turns on whether the defendant's negligence was a substantial factor in producing the injury. Nieuwendorp v. Am. Family Ins. Co., 191 Wis.2d 462, 475, 529 N.W.2d 594 (1995). The jury's decision to limit Hanson's recovery of medical expenses to pre-surgery medical expenses is consistent with a finding that the accident caused some of Hanson's medical problems, but that neither the accident nor Dr. Lloyd's allegedly negligent treatment of Hanson's accident-related injury caused the structural damage (radiculopathy), which prompted Dr. Lloyd to operate. ¶ 67 Credible evidence presented at trial supports the inference that the jury determined the accident caused temporary soft tissue damage but did not cause, and was otherwise completely unrelated to, any structural damage. Accordingly, the jury could have correctly awarded Hanson the medical expenses she incurred after the accident but before the surgery without violating the rule set forth in Selleck. ¶ 68 In his closing argument, defense counsel forcefully argued that Hanson suffered two distinct injuries or conditions caused by two different sources. He stated: [I]t is from a biomechanical standpoint impossible that she could have had any structural damage causing surgery. It may be your judgment as a jury that she had some temporary soft tissue discomfort as a result of the accident. We are not saying, we are not trying to claim that that's impossible. But if that's the case, her damages should be limited accordingly. (Emphasis added.) ¶ 69 The closing argument was not the first instance where the record displays evidence of two distinct injuries. In defense counsel's opening statement, he stated: The evidence is going to show with someone like [the plaintiff], an accident like this at the most is going to cause some temporary soft tissue soreness in the neck.... And that's the extent of what this accident had caused. Defense counsel also stated to the jury that he was going to present a witness, Dr. Alfred Bowles, who was going to testify that, from a physical standpoint . . . there was [not] enough force or even injury in the accident to cause any sort of structural problem in the spine that would give rise to surgery. ¶ 70 Defense counsel fulfilled the promise he made to the jury in his opening statement. The record is replete with evidence that the plaintiff suffered from two distinct injuries or conditions. For instance: (A) When cross-examined, Dr. Lloyd stated that the initial injury from the accident was post-traumatic cervical dorsal strain or muscle strain. The muscle strain was of the type one would receive by lifting something too heavy, but it did not involve any problems with the spinal cord or nerve root associated with structural damage. From this evidence, the jury could have inferred that there were two distinct injuries, one caused by the accident and one not caused by the accident. (B) During re-direct examination, Dr. Lloyd stated that Hanson had two distinct injuries: permanent nerve root injury and muscle and soft tissue injury. Again, the jury could have found different causes for each distinct injury. ¶ 71 The record also contains evidence that the accident did not cause or lead to treatment that caused the structural damage: (A) Hanson testified that she had done some horseback riding and sledding before the accident and had done some shoveling after the accident. From this statement, the jury could have inferred that these other activities, not the accident, caused the structural damage that led to the surgery. (B) Upon direct examination, Dr. Lloyd stated that since the time of the accident, Hanson had complained of posterior neck pain radiat[ing] into her right arm and numbness into her hand, and that she also noticed weakness of her right arm. Upon cross-examination, however, Dr. Lloyd acknowledged that even before the accident, Hanson had complained of some hand numbness. The jury could have inferred from these statements that because Hanson experienced some of the same symptoms of structural damage before the accident, the structural damage existed before the accident, and that the accident did not cause the structural damage. (C) Upon direct examination, one of the defendant's experts, Dr. Bowles, stated that there was no evidence of a causal relationship between the accident and the structural damage: I can't find a . . . causal relationship between the impact, the impact related movement of the car and her body that would lead to the types of medical problems that are seen and treated down the road, especially related to the cervical spine and cervical nerve roots and pain and symptoms in the upper extremity. He acknowledged, however, that the accident could have caused some kind of minor injury, such as muscle strain. The jury could have determined that the accident caused the muscle strain but not the structural damage. (D) Upon cross-examination, Dr. Bowles stated that the structural damage could have been caused by an impact-related injury, but that it could also have been caused by a non-impact-related injury. Dr. Bowles stated that there are other factors that cause nerves not to conduct well. ¶ 72 While the record contains evidence contrary to the inference that the accident caused structural damage, [3] an appellate court must view[ ] the evidence in a light most favorable to the jury verdict and ... accept[ ] the particular inferences drawn by the jury. Morden, 235 Wis.2d 325, ¶ 41, 611 N.W.2d 659. The majority fails to search the record for evidence supportive of the jury verdict and dismisses the possibility that the jury could have reasonably found that there were two distinct injuries or conditions, one caused by the accident and one unrelated to the accident or the subsequent treatment. By ignoring this possibility and awarding full damages as a matter of law, the majority either usurps the role of the jury or effectively eliminates one element of negligence: causation. [4] By allowing Hanson to recover damages for an injury that may not have been caused by the accident or by subsequent treatment of an accident-related injury, the majority expands the Selleck rule and embraces a fallacy. ¶ 73 The Selleck court stated: The plaintiff is not held responsible for the errors or mistakes of a physician or surgeon in treating an injury received by a defect in the street or sidewalk, providing she exercises ordinary care in procuring the services of such physician. Selleck, 100 Wis. at 163, 75 N.W. 975 (emphasis added). The Selleck rule, therefore, recognizes liability for unnecessary medical treatment, but only for treatment of injuries caused or aggravated by the accident. ¶ 74 The importance of first establishing a causal connection between the defendant's negligence and the injury aggravated or caused by a treating physician's negligence was made clear in Butzow v. Wausau Memorial Hospital, 51 Wis.2d 281, 285-86, 187 N.W.2d 349 (1971). The court explained that the Selleck rule reflects a public policy determination as to where the line of causation should end. Id. at 286, 187 N.W.2d 349. Thus, the Selleck rule presupposes causation and becomes relevant once a plaintiff establishes a causal connection between the defendant's negligence and the plaintiff's bodily injury for which treatment is provided. See id. ¶ 75 Whether the defendant's negligence caused the structural damage to Hanson's cervical vertebrae was hotly disputed at trial. Nevertheless, the majority assiduously avoids the question of whether the surgery was causally related to the accident. Rather, the majority focuses its discussion on whether the surgery arose from an initial injury that itself was caused by the accident. Id. Under this extension of the Selleck rule, a plaintiff is able to recover damages for any medical treatment as long as the treatment was prescribed as a result of inquiry about an accident-related injury. ¶ 76 To illustrate, imagine that a plaintiff is injured in a car accident and immediately experiences pain in her big toe and then, a couple days later, experiences inflammation and discomfort in the ball of her foot. She visits a doctor who finds that she has fractured her big toe, and who diagnoses her as in need of surgery to remove an extra bone in the ball of her foot. [5] The doctor reasons that the accident probably aggravated the tendon that attaches to this extra bone. It turns out, though, that the doctor was wrong in two regards: (1) the surgery was not necessary, and (2) the aggravation of the plaintiff's tendon was caused not by the accident but by the plaintiff having run a marathon three days before the accident. ¶ 77 Under the majority's interpretation, if the jury were to find that the accident caused the fractured toe, then, as a matter of law, the defendant would be liable not only for the damages associated with the fractured toe, but also for the damages associated with the inflamed tendon, including the resulting surgery, even though there was no causal connection between the accident and the presence of the extra bone. [6] ¶ 78 Thus, the majority effectively eliminates the need to prove causation in certain situations. This makes Wis JI—Civil 1720 a dead letter, replacing it with the reasoning of post hoc, ergo propter hoc.",sufficiency of the evidence
+619,4452040,1,2,"Washington voters may recall any elected, nonjudicial public officer who has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his [or her] oath of office. WASH. CONST, art. I, § 33. The recall process is governed by ROW 29A.56.110 through .140. An elected official can be recalled only for cause, meaning the petition must be factually and legally sufficient. Chandler v. Otto, 103 Wn.2d 268, 274,693 P.2d 71 (1984). Whether the charges are factually and legally sufficient is determined by the superior court where the officer subject to recall resides. RCW 29A.56.130-.140. The court must determine sufficiency from the face of the petition. In re Recall ofZufelt, 112 Wn.2d 906, 914, 774 P.2d 1223 (1989). A recall 'charge, taken as a whole . . ., must be specific enough to give the elected official meaningful notice of the particular conduct challenged and why it is grounds for recall.' In re Recall ofPepper, 189 Wn.2d 546, 553, 403 P.3d 839(2017) (alteration in original)(quoting In re Recall ofBoldt, 187 Wn.2d 542, 549, 386 P.3d 1104 (2017)). In recall cases, courts do not consider the truth ofthe charges, only the sufficiency. RCW 29A.56.140;In re Recall ofLindquist, 172 Wn.2d 120, 131-32, 258 P.3d9(2011). This court reviews the sufficiency of a recall petition de novo. Teaford v. Howard, 104 Wn.2d 580, 590, 707 P.2d 1327(1985). A charge is factually sufficient if 3 No. 96765-2 the facts establish a prima facie ease of misfeasance, malfeasance, or violation of the oath of office and are stated in concise language and provide a detailed description in order to enable the electorate and a challenged official to make informed decisions. In re Recall ofWasson, 149 Wn.2d 787, 791, 72 P.3d 170(2003)(citing Cole v. Webster, 103 Wn.2d 280, 285, 692 P.2d 799(1984); Chandler, 103 Wn.2d at 274). The petitioner must have some knowledge of the facts underlying the charges. In re Recall ofAckerson, 143 Wn.2d 366, 372, 20 P.3d 930(2001). Where the charge alleges the official violated the law, the facts must show the official intended to do so. In re Recall of Wade, 115 Wn.2d 544, 549, 799 P.2d 1179(1990). A charge is legally sufficient if it defines substantial conduct clearly amounting to misfeasance, malfeasance or a violation of the oath of office and there is no legal justification for the challenged conduct. Wasson, 149 Wn.2d at 791-92. RCW 29A.56.110 defines malfeasance and misfeasance: (1)Misfeasance or malfeasance in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty; (a) Additionally,misfeasance in office means the performance of a duty in an improper manner; and (b) Additionally,malfeasance in office means the commission of an unlawful act. Lawful, discretionary acts are not a basis for recall. Chandler, 103 Wn.2d at 274. The burden is on the petitioner to identify the 'standard, law, or rule that would make the officer's conduct wrongful, improper, or unlawful.' Pepper, 189 Wn.2d at 554-55 4 No. 96765-2 (internal quotation marks omitted)(quoting In re Recall ofBolt, 111 Wn.2d 168, 181, 298 P.3d 710 (2013)). A reviewing court must not consider the truthfulness ofthe charges but, instead, must accept the allegations as true and determine whether the charges on their face support the conclusion that the officer abused his or her position. Cole, 103 Wn.2d at 287; Teaford, 104 Wn.2d at 586. Charge 1: frequent travel outside of Washington This charge alleges that Governor Inslee's frequent out-of-state travels created a vacancy in his office. At the hearing on the recall petition. West argued that Governor Inslee also violated RCW 43.06.040 because he asked the secretary ofstate—not the lieutenant governor—^to act as head executive during his absences. Verbatim Report of Proceedings(VRP (oral argument)) at 12, 14. The trial court found this charge insufficient and included West's additional allegation regarding the delegation of duties to the secretary of state. Verbatim Report ofProceedings(VRP (ruling ofthe court)) at 5-6. We hold that charge 1 is legally insufficient. RCW 43.06.040 provides that [i]f the governor absents himself or herself from the state, he or she shall, prior to his or her departure, notify the lieutenant governor of his or her proposed absence, and during such absence the lieutenant governor shall perform all the duties of the governor. No. 96765-2 (Emphasis added.) West argued that .040 requires the lieutenant governor alone to act as Washington's executive officer when the governor is absent. See VRP (oral argument) at 23-24; Appellant's Opening Br. at 28. But the statute does not support this reading; indeed,.040 is silent on the very situation West objects to: what official may act as governor when both the governor and lieutenant governor are absent. Moreover,.040 requires the governor to notify the lieutenant governor of any planned absences, and the record does not indicate that Governor Inslee failed to do so. West submitted numerous letters from Governor Inslee to Secretary of State Kim Wyman recognizing the notification requirement and asking the secretary to act as governor because the lieutenant governor was unavailable. That these letters note the lieutenant governor's unavailability indicates Governor Inslee provided notice as required by .040. West fails to show the governor's conduct constitutes malfeasance, misfeasance, or violation of his oath of office. RCW 29A.56.110(1). Even assuming .040 allows only the lieutenant governor to act as governor, there is no indication that Governor Inslee intended to commit an unlawful act when asking the secretary of state to fill that role. Boldt, 187 Wn.2d at 549 (citing In re Recall ofTelford, 166 Wn.2d 148, 158, 206 P.3d 1248 (2009)). The governor's letters show that he was aware of.040 and, because the lieutenant governor was unavailable, that he asked Secretary Wyman to step in. These letters show the governor's intent to abide by .040, not to violate it. No. 96765-2 The allegation on vacancy is similarly insufficient. West asserted that Governor Inslee's frequent travel created a vacancy in the office, but West provides no legal definition ofvacancy or argument on what constitutes such a vacancy, e.g., how many trips outside the state amount to a vacant office. Pepper, 189 Wn.2d at 554-55. The State explains that RCW 42.12.010 determines when an elective office becomes vacant, and travel is not included.' Resp. Br. of Jay Inslee at 12-13. This charge is insufficient. Charge 2: improper residence and maintenance of official papers In charge 2, the recall petition alleges that Governor Inslee improperly maintained a residence outside the seat of government in Olympia, Washington, and maintained his 'RCW 42.12.010 provides that [e]very elective office shall become vacant on the happening ofany ofthe following events: (1)The death ofthe incumbent; (2)His or her resignation. A vacancy caused by resignation shall be deemed to occur upon the effective date ofthe resignation; (3)His or her removal; (4)Except as provided in RCW... 3.50.057, his or her ceasing to be a legally registered voter ofthe district, county, city, town, or other municipal or quasi municipal corporation from which he or she shall have been elected or appointed, including where applicable the council district, commissioner district, or ward from which he or she shall have been elected or appointed; (5)His or her conviction ofa felony, or ofany offense involving a violation ofhis or her official oath; (6)His or her refusal or neglect to take his or her oath of office, or to give or renew his or her official bond, or to deposit such oath or bond within the time prescribed by law; (7)The decision ofa competent tribunal declaring void his or her election or appointment; or (8)Whenever ajudgment shall be obtained against that incumbent for breach ofthe condition ofhis or her official bond. 7 No. 96765-2 books and papers not in our state capital but in Washington, D.C., violating article III, section 24 of our constitution.^ We hold that charge 2 is factually insufficient. West admitted at the sufficiency hearing that the residence issue is not the strongest claim and that he had no personal knowledge as to where the Governor is at each point of the day. That one, I think, could properly be removed. VRP (oral argument) at 11. The State asserts that West abandoned this claim (Resp. Br. of Jay Inslee at 14-15), but because West equivocated on the point at trial and argued it in his briefing here, we address it below. Appellant's Resp. Br. at 15-18. First, the residency charge is factually insufficient because it does not specifically identify conduct or behavior indicating Governor Inslee intended to reside outside Olympia. A recall petition's charges must provide a detailed description of facts establishing a prima facie case of misfeasance, malfeasance, or violation of the oath of office. Wasson, 149 Wn.2d at 791. West made general allegations that Governor Inslee has a residence on Bainbridge Island and an office in Washington, D.C. See Appellant's Opening Br. at 39-40; see also In re Recall ofKelley, 185 Wn.2d 158, 165, 369 P.3d 494 (2016)(finding a charge that an official did not reside in Olympia factually insufficient for failing to provide proof of residency violations). ^ Article 111, section 24 states that [t]he govemor, secretary of state, treasurer, auditor, superintendent of public instruction, commissioner of public lands and attomey general shall severally keep the public records, books and papers relating to their respective offices, at the seat of 8 No. 96765-2 Second, West presents no evidence that the governor intended to violate article III, section 24. While some inferences are permissible in a recall petition, on the whole, the facts must indicate an intention to violate the law. Telford, 166 Wn.2d at 158; see also In re Recall ofCarkeek, 156 Wn.2d 469, 128 P.3d 1231 (2006). Maintaining an office outside the state and spending time away from Olympia, without more, does not allege misfeasance, malfeasanee, or violation of an oath of office. Charges 3 and 4: failure to declare homelessness a statewide emergencv Charges 3 and 4 allege that the governor had a duty to declare a state of emergency to address homelessness. West argues that because Governor Inslee must ensure state environmental, criminal, and nuisance laws are faithfully executed, it was manifestly unreasonable not to declare an emergency. Appellant's Opening Br. at 17-19. Moreover, West contends, the governor's failure to do so allowed local governments to usurp state power. Id. at 23-27, 29-38. We have held that 'discretionary acts of a public official are not a basis for recall insofar as those acts are an appropriate exercise of discretion by the official in the performance of his or her duties.' Bolt, 111 Wn.2d at 174 (quoting Cole, 103 Wn.2d at 283). An offieial may be recalled for execution of discretionary acts only if the execution of that discretion is done 'in a manifestly unreasonable manner.' Id. (quoting In re government, at which place also the governor, secretary of state, treasurer and auditor shall reside. 9 No. 96765-2 Recall ofShipman, 125 Wn.2d 683,685, 886 P.2d 1127(1995)). A clear abuse of discretion may be shown by demonstrating discretion was exercised for untenable grounds or for untenable reasons. Cole, 103 Wn.2d at 284-85 (citing Wilson v. Bd. of Governors, 90 Wn.2d 649,656, 585 P.2d 136 (1978)). Declaring an emergency is a discretionary act. RCW 43.06.010(12) states: The governor may, after finding that a public disorder, disaster, energy emergency, or riot exists within this state or any part thereof which affects life, health, property, or the public peace, proclaim a state of emergency in the area affected. (Emphasis added.) Governor Inslee is not required to declare an emergency, and West does not articulate why the choice not to execute this discretionary act was manifestly unreasonable. It is apparent that cities and counties in Washington State are facing a homelessness crisis; but this fact alone does not make the governor's inaction in declaring an emergency manifestly unreasonable. Accompanying his statement of charges. West provided letters from local governments asking the governor to declare an emergency, and he also provides legislative measures recognizing the problem of homelessness. E.g., CP at 19-21 (Olympia city ordinance related to homelessness), 36-37 (letter from the mayor of Bellingham asking Governor Inslee to declare a state of emergency around homelessness). These materials do not establish or show the existence of a duty. They also fail to show that Governor Inslee's inaction is manifestly unreasonable. 10 No. 96765-2 West's general allegation that the existence of a crisis requires an emergency declaration is not sufficiently detailed to make a prima facie case of misfeasance, malfeasance, or violation of the oath of office. Wasson, 149 Wn.2d at 791. The allegation that local governments usurped state power cannot be the basis of recall. We have said that [tjhere is no authority for the proposition that a public official may be recalled for the past conduct of a wholly separate governmental agency. In re Recall ofReed, 156 Wn.2d 53, 58, 124 P.3d 279(2005). Similarly, this court can find no authority, nor does West provide any, for the position that an official may be recalled for the past conduct of a separate governmental entity—in this case, a local government. The trial court correctly found that charges 3 and 4 were factually and legally insufficient. Charge 5: improper campaign activities Finally, charge 5 alleges that Governor Inslee improperly campaigned for passage of Initiative 1631 (1-1631), relating to pollution. At the hearing on his petition, West asserted that the governor could legally make neutral statements concerning the support of[his] office for the initiative, VRP (oral argument) at 5, but appearing at media events and in campaign commercials was improper. Id. The trial court found that an elected official can use only de minimis state resources when campaigning for a legislative measure and that there was no evidence presented that Governor Inslee intended to violate campaign finance laws. VRP (ruling of the court) at 8. Thus, the court found this charge to be factually insufficient. Id. at 9. We agree. 11 No. 96765-2 Here, West contends that the governor engaged in an improper relationship with every voter in Washington by making personal appearances and attending media events promoting 1-1631. Appellant's Opening Br. at 16. West submitted communications from the governor's policy staff concerning 1-1631, which show staff providing Governor Inslee with materials for a campaign event. West also provided the agenda for a meeting of the Affiliated Tribes of Northwest Indians General Assembly, in which Governor Inslee expressed his support for the carbon pricing initiative, I-1631. State officers are prohibited from using the facilities of an agency to promote or oppose a ballot proposition. RCW 42.52.180(1). But an official may comment on a proposition, provided there is no actual, measurable expenditure of public funds. RCW 42.52.180(2)(b). State law allows [d]e minimis use of public facilities by statewide elected officials . . . incidental to the preparation or delivery of permissible communications, including written and verbal communications initiated by them of their views of ballot propositions. RCW 42.52.180(2)(e). West's materials certainly show that the governor supported 1-1631. But these materials do not show any conduct or behavior from the governor in violation of our campaign finance laws. Indeed, the above materials appear to demonstrate that the governor's actions are de minimis use of state resources in accordance with RCW 42.52.180(2). Even assuming the governor's conduct was not de minimis or somehow violated campaign finance laws. West fails to show the governor intended to violate those 12 No. 96765-2 laws. Telford, 166 Wn.2d at 158. Attending events, shaking voters' hands, and expressing wholehearted support for legislation does not show the governor intended to violate the law. Some inference is allowed in recall petitions, but West's evidence requires more than inference—it requires acceptance of his conjecture that the governor knew what he was doing was unlawful. Conjecture is insufficient to support this charge. In re Recall ofDeBruyn, 112 Wn.2d 924, 930, 774 P.2d 1196(1989)(conjectural knowledge is insufficient).",analysis
+620,6215900,2,1,"The ward first argues that the evidence was insufficient to support a finding that she is “incapacitated.” “Incapacity” is a legal, not a medical, disability, and refers to “any person who has suffered, is suffering or is likely to suffer substantial harm due to an inability to provide for his [or her] personal 3 needs for food, clothing, shelter, health care or safety or an inability to manage his or her property or financial affairs.” RSA 464-A:2, XI (2018). Incapacity is measured by “functional limitations,” id., that “impair [an individual’s] ability to participate in and perform minimal activities of daily living that secure and maintain proper food, clothing, shelter, health care or safety for himself or herself.” RSA 464-A:2, VII (2018). “Isolated instances of simple negligence or improvidence, lack of resources or any act, occurrence or statement if that act, occurrence or statement is the product of an informed judgment shall not constitute evidence of inability to provide for personal needs or to manage property.” RSA 464-A:2, XI. Because the ward challenges the sufficiency of the evidence, our task is to review the record to determine whether it supports the trial court’s findings beyond a reasonable doubt. In re Guardianship of G.S., 157 N.H. 470, 473-74 (2008). In a sufficiency challenge, “we examine whether the [trial] court’s actual or implicit factual findings on the statutory components required for guardianship are reasonably supported” by the evidence. Id. at 474. However, we defer to the court’s judgment on such issues as resolving conflicts in testimony, measuring the credibility of witnesses, and determining the weight to be given testimony. Id. The ward contends that “there was not proof beyond a reasonable doubt as to [her] incapacity, as NHH did not make a showing of substantial harm due to inability to provide for needs.” See RSA 464-A:2, XI. We disagree. The ward’s psychiatrist opined that the ward is unable “to care for herself with respect to . . . her psychiatric medications, and with respect to medical treatment.” According to the psychiatrist, the ward is unable to weigh “the risks and benefits of proposed treatment” and incapable of making informed decisions regarding her treatment needs. The psychiatrist further testified that NHH evaluated the ward’s “ability to identify dangers in the home,” budget finances, care for her home, and complete activities of daily living, and found that the ward “needed assistance almost across the board.” The psychiatrist opined that, without a guardianship, the ward was “likely [to] suffer substantial harm because she can’t provide for her basic needs.” The psychiatrist noted that, even while at NHH, the ward was unable to care for herself in that she did not shower for 47 days; wore shoes that were three or four sizes too big, falling apart, and held together with tape; and refused to allow staff to assess what appeared to be a fungal infection on her feet. As a result, the psychiatrist expressed concern about the ward’s ability to live independently. She noted that the ward intended to return to the apartment from which she was evicted, although she has refused to agree to pay the $3,000 in back rent that she owes. The psychiatrist opined that “the only safe options for discharge” were for the ward to live independently but with assistance at home, or to live in a group home, or in an assisted living 4 facility. The psychiatrist noted that the ward had “declined all of those options.” The psychiatrist testified that if a guardian were appointed for the ward, then the ward could be discharged from the hospital safely, she could stabilize on her medication, and she might be able to return to independent living. According to the psychiatrist, discharging the ward from the hospital without a guardian would be unsafe. Based upon this record, we conclude that the evidence was sufficient for the trial court to have found, beyond a reasonable doubt, that the ward “is likely to suffer substantial harm due to an inability to provide for [her] personal needs for food, clothing, shelter, health care or safety or an inability to manage . . . her property or financial affairs.” RSA 464-A:2, XI; see In re Guardianship of Peter R., 159 N.H. 562, 563-64 (2009) (ruling that evidence that ward refused to take medication recommended by his psychiatrist, had been involuntarily admitted to NHH for a period of no more than one year with a conditional discharge, and suffered from a psychotic disorder was sufficient to support trial court’s finding of incapacity). The ward next asserts that “[t]here was also insufficient testimony that guardianship was necessary, appropriate, or least restrictive.” Before imposing a guardianship, the trial court must find, beyond a reasonable doubt, that “[t[he guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the proposed ward.” RSA 464-A:9, III(d). “Least restrictive form of intervention” means that the guardianship imposed “represents only those limitations necessary to provide him or her with needed care and rehabilitative services, and that the ward shall enjoy the greatest amount of personal freedom and civil liberties consistent with his or her mental and physical limitations.” RSA 464-A:2, XIV (2018). Contrary to the ward’s conclusory assertion, there is support in the record for the trial court’s finding that guardianship is the least restrictive intervention for the ward. The ward’s treating psychiatrist specifically testified that guardianship is the least restrictive “treatment option right now” in that it is “less restrictive than her remaining in the hospital.” The psychiatrist explained that if a guardian were appointed, NHH “would be able to discharge [the ward] from the hospital” and “be able to stabilize her on the psychiatric medication.” She expressed the hope that “with the right medication,” the ward might be able to return “to independent living, which is what she wants.” This testimony is sufficient to support the trial court’s finding that “[t]he guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the proposed ward.” RSA 464-A:9, III(d). 5",sufficiency of the evidence
+621,1334246,1,1,"Rayford was indicted for three counts of distributing crack cocaine and three counts of distributing crack cocaine within the proximity of a school. Pursuant to negotiations made by public defender Robert Tinsley (Tinsley), Rayford pleaded guilty to three counts of distributing crack cocaine and was given concurrent fifteen year sentences on each charge. No direct appeal was taken. Rayford thereafter filed an application for post-conviction relief (PCR) claiming, among other things, that ineffective assistance of counsel rendered his guilty plea involuntarily and unintelligently made. At the PCR hearing, Rayford testified that public defender Robert Hall (Hall) was assigned to his case before Tinsley and had promised to recommend a lenient sentence under the Youthful Offender Act. [1] According to Rayford, Tinsley made the same representation, but did not recommend a youthful offender sentence at the plea hearing. Tinsley denied having told Rayford that he would recommend a youthful offender sentence and testified that the only agreement was for concurrent fifteen year sentences. Tinsley further testified that Rayford was told he was facing a fifteen year sentence. The PCR judge found Tinsley's testimony credible, but ruled that Hall was ineffective because Rayford purportedly based his plea on Hall's unfulfilled promise to recommend a youthful offender sentence. In accordance with that finding, the PCR judge vacated Rayford's guilty pleas and ordered a new trial.",facts
+622,2443037,1,1,"Initially, we note that we cannot, as the State urges, decide the issue of whether the evidence was sufficient to support the verdict on law of the case principles. That doctrine applies only when the evidence in the second trial does not materially differ from the evidence presented in the first trial. See Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). In the first trial of this case, the State relied heavily on three statements Findley made to the police concerning the murder. In addition, Findley testified as part of his own case-in-chief. On appeal, we ruled that although the evidence was sufficient to support the conviction, Findley's statements should have been suppressed. At the second trial, instead of Findley's statements, the State offered the testimony of Jim Moore. Moore described the events surrounding the murder, as related to him by Findley, as well as both parties' participation in disposing of the victim's body. Findley did not testify. Although the testimony of the other witnesses in the two trials was substantially the same, the exclusion of Findley's statements and the addition of Moore's testimony upon retrial, varies such that we are required to examine the evidence anew. In determining whether there is sufficient evidence to support a jury verdict, the appellate court reviews the evidence in the light most favorable to the appellee and affirms if there is substantial evidence to support it. Substantial evidence is that which is of sufficient force to compel a conclusion one way or another; it must be more than mere speculation or conjecture. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Findley's conviction for capital murder arose from his participation in the robbery and shooting death of David Phillips. Phillips' co-workers revealed that Phillips had given Findley $1,700 in cash to purchase a car for him through some contacts of Findley's in Memphis. The teller at Phillips' bank testified that Phillips had withdrawn $1,800 from his savings account on Wednesday, March 2, 1988, and mentioned buying a car in Memphis. Phillips told his co-workers that the car was to be delivered during his break that evening. They chided him about not having received a bill of sale and getting ripped off. When the car did not arrive that evening, Phillips left work early to investigate. Findley's ex-wife, Judy Findley Jones (they were married at the time in question), testified that she remembered Phillips coming over late one night the first week in March and discussing the car deal and the fact that the guys at work were teasing him about Findley ripping off his money. Phillips returned to work on Thursday, March 3, and told his co-workers that everything was fine and he was to get the car on Friday. He was last seen at work on Thursday evening. Phillips' body was later discovered in a drainage ditch in Crawford County on March 24. It was tied and weighted with a concrete block and wrapped in plastic. Phillips had been shot twice in the upper chest, once in the neck, and once in the back. State Medical Examiner, Dr. Fahmy Malak, estimated that the body had been placed in the water less than 24 hours after Phillips died. As previously stated, testimony concerning the actual murder came from Jim Moore. Moore testified that Findley came by his house around dusk on Saturday, March 5, and asked Moore to accompany him to Paragould to sell some guns. Findley drove them in his car. After stopping at a liquor store, Findley informed Moore that there were no guns and they were just taking a trip to Paragould. Findley and Moore stopped at the home of Darla Clark, in Paragould, and visited with her and a friend of Ms. Clark's. Moore testified they drank several beers and left after a few hours. Leaving Paragould, Findley began driving towards Bay, Arkansas, and informed Moore that he had a body to get rid of, and offered Moore $500 to help him. Findley told Moore the body was David Phillips and that Findley had set up a car deal and it went sour.... [T]hese two guys in Memphis were supposed to rough us up and we were supposed to split the $1,700, but he (Phillips) got killed. Moore stated Findley told him that when he and Phillips arrived in Memphis, Phillips noticed the gun Findley was carrying and asked to see it, whereupon one of the other men got the gun from Phillips, shot him, and then told Findley to deal with it. Findley took Moore to an abandoned farm house where he had stored Phillips' body in a refrigerator. The two men loaded the body in the trunk of the car and eventually deposited it in the drainage ditch. They returned to Phillips' home in Truman, Arkansas, and moved his car to a parking lot in Bay so that people would think he had left. Findley then drove Moore home, arriving at approximately 2:00 a.m. on Sunday, March 6. Moore went with Findley the next day to get a new spare tire and trunk mat. Moore testified that the old, blood stained tire and mat were thrown out alongside a country road. Moore stated Findley never paid him the $500 as promised, and that Findley had used the $1,700 to pay bills. This testimony was corroborated by Findley's ex-wife who testified that Findley gave her money between March 2 and 4 to pay the rent and to have the phone reconnected. Mrs. Jones also testified that she had remarked to Findley about the disappearance of the spare tire and mat and that she had seen some green plastic in the trunk. The Findleys' landlord confirmed that on March 1 the Findleys were behind on their rent and on March 2 they paid $610 in cash. An expert with the Arkansas State Crime Lab established that the bullets recovered from David Phillips' body were fired from Findley's gun. Findley purchased the gun from a pawn shop on March 4. Mrs. Jones testified that after Findley was arrested, he asked her to dispose of the gun shells in their apartment or to have his sister do it. Findley argues the evidence is insufficient to support the fact that a robbery occurred at the time of Phillips' death and thus there was no proof of an underlying felony to support a capital murder conviction. Ark.Code Ann. § 5-10-101(a)(1) (1987) provides: (a) A person commits capital murder if: (1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, arson, vehicular piracy, robbery, burglary, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.... Findley contends, at most, the State's evidence suggests that Findley committed theft or theft by deception and then several days later Phillips was killed, not immediately thereafter, as provided by the capital murder statute. A person commits robbery if, with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark.Code Ann. § 5-12-102(a) (1987). There is ample evidence in the record to support the conclusion that Findley obtained money from Phillips for a phony car purchase and then, either acting alone or with others, killed Phillips in order to keep that money. As in the first appeal, we reject Findley's argument that the robbery and murder had to occur within a brief interval of time. Although the robbery scheme originated earlier in the week, it culminated when Findley's accomplice (or Findley himself) employed lethal force, either to take Phillips' money or to ensure his silence when he asked for its return. See Hall v. State, 299 Ark. 209, 772 S.W.2d 317 ( 1989) (theft by receiving held to be a continuing offense), and our analogy to this case in Findley v. State (I), supra. Findley also argues the evidence is insufficient to prove that the murder took place in Arkansas and, therefore, the trial court was without jurisdiction. The State is not required to prove jurisdiction unless evidence is admitted that affirmatively shows that the court lacks jurisdiction. Ark.Code Ann. § 5-1-111(b) (1987). Before the State is called upon to offer any evidence on the question of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). Here, there was no positive evidence that the crime occurred in Memphis, as Findley contends. It was only through the State's witness, Jim Moore, that the murder was linked to Memphis, and the State has never contended that Moore's testimony should be accepted as the sole truth of what occurred. Furthermore, it is not essential that all of the elements of the crime charged take place in Arkansas. We have said it is generally accepted that if the requisite elements of the crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985) (quoting Gardner v. State, supra ). As we explained, evidence shows the robbery scheme initiated in Arkansas, but culminated (if Findley's story, as told by Moore, is to be believed) in Memphis. The trial court was correct in refusing Findley's motion for directed verdict on the issue of jurisdiction. Lastly, under Findley's sufficiency argument, he contends the State's own evidence proves, as a matter of law, his affirmative defense to the offense of capital murder as defined in Ark.Code Ann. § 5-10-101(b) (1987). This argument is meritless and will be addressed under our discussion of jury instructions.",sufficiency of the evidence
+623,2499841,1,6,"Respondent took and subscribed the oath of admission and was admitted to the bar of the Colorado Supreme Court on May 20, 1987. She is registered upon the official records, Attorney Registration No. 16561, and is therefore subject to the jurisdiction of this Hearing Board in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b). Respondent's registered business address is P.O. Box 22135, Denver, Colorado 80222.",jurisdiction
+624,2084458,2,3,"[¶ 19] Robinson finally contends that the evidence was insufficient to support the jury's finding of assault. When reviewing a criminal defendant's challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State to determine whether a fact-finder rationally could find every element of the charge beyond a reasonable doubt. State v. Black, 2000 ME 211, ¶ 14, 763 A.2d 109, 113. [¶ 20] Contrary to Robinson's contentions, the jury could have rationally concluded that he intentionally ... cause[d] bodily injury or offensive physical contact to [Murano]. 17-A M.R.S.A. § 207. Competent evidence in the record shows that (1) Murano and Robinson were in their apartment on the night in question; (2) Haskins, who was Murano's next door neighbor, heard an angry male voice repeatedly yelling at a fearful female voice, causing him to believe that the female was getting beat up; (3) when the police arrived, Murano stated that Robinson had hit her, and later, more specifically, that Robinson had punched, kneed, kicked and choked her; and (4) Officer Gibbons's observations and photographs of Murano showed visible bodily injuries, which were consistent with Murano's statement that Robinson had hit her. [¶ 21] In sum, we conclude that the court did not err in admitting Murano's excited utterance, and the evidence was sufficient to support a conviction of assault. The entry is: Judgment affirmed.",sufficiency of the evidence
+625,2558397,3,2,"[¶ 43] Our review of compensatory damage awards, the assessment of which is in the sole province of the fact-finder, is highly deferential. Rutland v. Mullen, 2002 ME 98, ¶ 20, 798 A.2d 1104, 1112. We will disturb an award of damages only when it is plain that there is no rational basis upon which the amount of the award may be supported, that is, when there is no competent evidence in the record to support the award. Id. Damages that are uncertain, contingent, or speculative are not recoverable. Wood v. Bell, 2006 ME 98, ¶ 21, 902 A.2d 843, 851. [S]ome evidence of the amount of the loss sustained must support an award, but damages need not be proved to a mathematical certainty. Reardon, 2004 ME 74, ¶ 8, 852 A.2d at 69; see also Foss v. Ingeneri, 561 A.2d 498, 498-99 (Me.1989) (holding that plaintiff retains the burden of proving damages by a preponderance of the evidence following entry of default judgment); Decesere v. Thayer, 468 A.2d 597, 598 (Me.1983) (Damages must be grounded on established positive facts or on evidence from which their existence and amount may be determined to a probability.). The fact-finder may also act upon probable and inferential ... proof in determining damages. Tang of the Sea, Inc. v. Bayley's Quality Seafoods, Inc., 1998 ME 264, ¶ 10, 721 A.2d 648, 650. [¶ 44] The Chandlers submitted the following evidence in support of their claim of compensatory damages: a. Bank records that the Stifels admitted were true and genuine, and summaries thereof (as supported by testimonial evidence), showed debits from two of Hoch's German bank accounts from the period October 11, 2006, through June 24, 2008, the date on which Hoch died, totaling 177,631.76 euros. The Chandlers identified the payee in each transaction, excluding payments that were identified as reasonable compensation to the Naturhotel for Hoch's room and board and payment for her necessary medical care. We observe that two of these debits, totaling 2,325.06 euros, were made by or to Gudrun Stifel in late 2006. Although these debits occurred before the Stifel POA was executed on January 25, 2007, they occurred well after Hoch was under the exclusive care and control of the Stifels. Based on the allegations of the complaint, deemed to be adjudicated fact following entry of the default judgment, we cannot conclude that the court clearly erred in including them in its compensatory damages calculation. [¶ 45] An additional 54,433.08 euros was debited from one of these accounts after Hoch's death, presumably by virtue of the Stifel POA, given these were debits. b. Bank records that the Stifels admitted were true and genuine, and summaries thereof (as supported by testimonial evidence), showed transfers out of three of Hoch's accounts and corresponding amounts being transferred contemporaneously into accounts owned by the Stifels a month after Hoch's death. The total amounts transferred were 265,701.87 euros. c. Bank records that the Stifels admitted were true and genuine, and summaries thereof (as supported by testimonial evidence), showing the value in May 2008 of Hoch's brokerage account at 2,184,694.15 euros. The evidence further shows that two brokerage accounts owned by the Stifels as of mid-August 2008 were valued at 2,048,032.93 euros. The Stifels admitted that the assets held in Hoch's brokerage account were transferred to the Stifels by operation of law pursuant to Hoch's will. The Chandlers met their burden of showing damages due to the transfer of Hoch's brokerage account assets, valued somewhere between 2,184,694.15 euros and 2,048,032.93 euros. However, the record does not show on what date the transfers occurred or what the value of Hoch's account was on that date. The trial court included 2,184,694.15 euros, the value of Hoch's account as of mid-May 2008, in its compensatory damages calculation. We conclude, however, that valuing damages based on the mid-May 2008 valuation date was speculative and that the better measure of damages in this instance is the mid-August valuation of 2,048,032.93 euros. [8] d. The Stifels admitted that Hoch's German home, which they themselves valued at 80,000 euros, was transferred to them by operation of law under Hoch's German will. A property owner is competent to value his own property, and therefore, competent record evidence supports the inclusion of 80,000 euros in the compensatory damages award. [¶ 46] Accepting the Chandlers' position that these debits or transfers were unauthorized, pursuant to the adjudicated facts in the case and the determination of the Stifels' liability, and were proximately caused by the Stifels' tortious conduct, the record supports the court's determination of compensatory damages with one exception: damages resulting from the transfer of Hoch's brokerage account assets should be 2,048,032.93 euros rather than 2,184,694.15 euros. [¶ 47] The total is thus: -------------------------------------------------- Pre- and Post-Death 232,064.84 euros Debits from Hoch's Bank Accounts -------------------------------------------------- Post-Death transfers 265,701.87 euros from Hoch's accounts into the Stifels' accounts -------------------------------------------------- Value of assets transferred 2,048,032.93 euros from Hoch's brokerage account -------------------------------------------------- Value of Hoch's 80,000 euros German Home __________________________________________________ TOTAL 2,625,799.64 euros -------------------------------------------------- [¶ 48] Applying the exchange rate accepted at trial of $1.4269 per euro, the record supports a compensatory damages award of $3,746,753.50.",sufficiency of the evidence
+626,2042377,1,1,"We granted leave in this case to determine whether the evidence described by the appellee as provocation was sufficient to require the trial judge to give the requested voluntary manslaughter instructions. We reverse the decision of the Court of Appeals, reinstate the decision of the trial court, and hold that the evidence at trial did not support giving this instruction.",introduction
+627,1969525,1,2,"In our view the material facts are not in dispute. Public schools in Vermont are financed principally by two means: funds raised by cities and towns solely through assessments on property within them, as authorized by 16 V.S.A. § 511, and funds distributed by the state under a complex aid formula, currently known as the Foundation Plan. See id. §§ 3441-3449. The purpose of a foundation formula is to enable each school district to spend an amount per pupil that will provide at least a minimum-quality education program, known as the foundation cost. See id. §§ 3492-3494; see generally A. Odden & L. Picus, School Finance: A Policy Perspective 173-82 (1992). In Vermont this is the amount necessary for elementary students to receive an education that complies with public school approval standards. See 16 V.S.A. § 3492. To enable the formula to work, the Legislature annually establishes a foundation tax rate as a reasonable rate of local property taxation to raise the foundation cost. See id. § 3495(a). Basically, state aid is calculated as the difference between the foundation cost for all students in a district and the amount the district can raise itself at the foundation tax rate. See id. § 3497(a). There are a number of adjustments to this basic formula that generally reduce its equalizing effect. Further, a substantial amount of state financing of education is supplied through categorical grant programs based on different distribution formulas which may not reflect the ability of a school district to raise money itself. [3] For example, the state funds all of the employers' share of teachers' retirement pensions for all districts, irrespective of the ability of a district to pay those costs. From an equity standpoint, the major weakness of a foundation formula distribution system is that it equalizes capacity only to a level of a minimally adequate education program. Odden & Picus, supra, at 175. Vermont has adopted a limited ability for districts to receive some assistance with costs above foundation costs, primarily to help with debt service from capital construction projects. See 16 V.S.A. §§ 3441(9), (16), 3497(d). School districts with greater property wealth, however, can more easily spend above foundation costs to improve education, and the record before us shows that they usually make these expenditures. Thus, a foundation-formula, state-aid program can boost the capacity of the poorest districts, but still leave substantial deficiencies in overall equity. See Odden & Picus, supra, at 175-77. Many of the states in which the highest court has held that the educational financing system does not meet constitutional minimums had foundation state-aid programs in effect at the time of the decision. See Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 877 P.2d 806, 809-10 (1994); Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 143, 156 (Tenn. 1993); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 392, 397 (Tex.1989). Although the foundation state-aid plan was adopted fairly recently, the criticism of it has grown in recent years. [4] It is, however, well beyond our limited role to evaluate the imperfections in the state-aid formula. Even if we are to assume that it is working adequately to accomplish its purpose, we must confront the constitutionality of the system in light of the limited nature of the Foundation Plan's purpose. The object of the Plan is not equality of educational opportunity generally, or even equality of local capacity to facilitate opportunity. It is only to equalize capacity to produce a minimally adequate education, assuming the voters can sustain the state-selected tax rate. That the foundation formula does not eliminate wealth disparities is shown dramatically by the record before us. Notwithstanding the fact that state aid has increased substantially in recent years, the percentage of the local contribution to education revenues has remained exceptionally high. In fiscal year 1994, public education revenues raised through local property taxes represented over 60% of the total cost of public education, one of the highest local shares in the nation. Furthermore, notwithstanding the considerable financial commitment by the state, there remain wide differences among school districts in per-pupil spending. At the extremes, in fiscal year 1995 the Town of Eden spent $2979 per student, compared with the Town of Winhall, which spent $7726, or 160% more than Eden. [5] In December 1994, the top 5% of school districts spent from $5812 to $7803 per student, while the bottom 5% spent from $2720 to $3608. Thus, some school districts in Vermont commonly spend twice as much or more per student as other districts. The correlation between spending disparities and taxable property wealth within the districts is also well established. As summarized in a recent Department of Education analysis of school financing during fiscal year 1995, A statistically significant relationship exists between [the] wealth of a school district and its spending per student. Based largely on this relationship, there continue[] to be large disparities in per pupil spending across school districts. Vermont Department of Education, A Scorecard for School Finance FY 95, at i (1996). The data dramatically bear this out. In fiscal year 1995, for example, the Town of Richford's property tax base was approximately $140,000 per student, second lowest in the state, and its average student expenditure was also among the lowest at $3743. By contrast, the Town of Peru enjoyed a tax base of approximately $2.2 million per student, and its per-pupil expenditure was $6476. Of course, property wealth does not invariably correlate with student expenditures. Standard's property tax base in fiscal year 1995 was somewhat over $118,000 per student, compared with Sherburne's of $2.5 million. Notwithstanding the vast disparity in property wealth, Stannard's average expenditure per pupil, $5684, was nearly equal to Sherburne's of $5731. Not surprisingly, however, there was a huge disparity in their effective tax rates: on an $85,000 home, the tax in Sherburne was $247; in Stannard, it was $2040. It is thus readily apparent, as the Department of Education has noted, that spending per pupil ... tends to be highest in resource-rich districts who benefit further with low school tax rates ... [while] [c]onversely, towns with limited resources spend less per student [and] pay higher tax rates. Id. at 11. The undisputed evidence thus amply supports plaintiffs' claim that wide disparities in student expenditures exist among Vermont school districts and that these disparities correlate generally with taxable property wealth within the districts. The record is relatively less developed with respect to plaintiffs' further assertion that funding disparities result in unequal educational opportunities, and specifically that [c]omparatively low expenditures for education cause comparatively diminished educational opportunities for the students attending the affected schools. The essential point, however, is undisputed. The trial court noted the State had concede[d] that the present funding scheme denies children residing in comparatively property-poor school districts the same `educational opportunities' that are available to students residing in wealthier districts. The State has not only failed to challenge this finding, it affirmatively relies on it to demonstrate that, contrary to the judgment of the court below, no genuine issue of material fact remains to be resolved at trial. Having conceded that the current funding system fails to afford Vermont schoolchildren equal educational opportunities, it is immaterial—the State contends—whether the parties agree on the precise nature of the educational opportunities affected by the disparities. Indeed, in their oral arguments before this Court the parties assumed that unequal funding yields, at a minimum, unequal curricular, technological, and human resources. School districts of equal size but unequal funding would not have the capacity, for example, to offer equivalent foreign language training, purchase equivalent computer technology, hire teachers and other professional personnel of equivalent training and experience, or provide equivalent salaries and benefits. In this respect the State concedes the obvious. While we recognize that equal dollar resources do not necessarily translate equally in effect, there is no reasonable doubt that substantial funding differences significantly affect opportunities to learn. To be sure, some school districts may manage their money better than others, and circumstances extraneous to the educational system may substantially affect a child's performance. Money is clearly not the only variable affecting educational opportunity, but it is one that government can effectively equalize.",facts
+628,886292,1,2,"¶6 We review a district court’s decision on a motion to dismiss a complaint as a matter of law to determine whether the district court’s interpretation of the law is correct. Hall v. Heckerman, 2000 MT 300, ¶ 12, 302 Mont. 345, ¶ 12, 15 P.3d 869, ¶ 12.",standard of review
+629,6326301,1,2,"Contract Signal 88 is a franchisor that operates a security services franchise system in Nebraska. Lyconic develops software 1 Signal 88 v. Lyconic, 29 Neb. App. 533, 956 N.W.2d 308 (2021). - 826 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports SIGNAL 88 v. LYCONIC Cite as 310 Neb. 824 programs for use in the security services industry. In 2011, Lyconic contracted with Signal 88 to provide software and services to assist Signal 88 in operating its business. The initial contract was for a 3-year term, with Signal 88 reserving rights of renewal. Signal 88 would pay Lyconic $25,000 per month for the first 12 months and $30,000 per month for the remaining 24 months. In the event the contract was terminated, Lyconic would provide Signal 88 up to 180 days of post­termination services (termination assistance), in order to “achieve a smooth transition of all records[,] data[,] and serv­ ices without disruption to [Signal 88’s] [b]usiness.” Signal 88 would pay for termination assistance at “Lyconic’s then current hourly rate.” The parties executed two addendums. “Addendum #1” decreased the service fee from $30,000 to $25,000 per month. “Addendum #2” set a month-to-month term at the renewal rate of $25,000 per month, required 30 days’ notice prior to termination, and reduced Lyconic’s termination assistance obligation to up to 30 days following termination. Addendum #2 granted Signal 88 the right to extend termination assistance longer than 30 days, provided Signal 88 gave an equivalent amount of notice before termination. In February 2016, Signal 88 notified Lyconic of its intent to terminate the contract, setting the termination date for June 30. Lyconic then advised it would not renew the agreement beyond the current monthly term, expiring March 6, and would provide termination assistance until April 6. In a March 1 correspondence to Lyconic, Signal 88 disputed Lyconic’s notice to terminate and stated it would terminate the agreement July 1, and it requested that termination assistance be extended for 122 days after the termination date. Arbitration Signal 88 filed its contract action against Lyconic seeking declaratory and injunctive relief. Pursuant to the terms of the contract, the district court ordered arbitration. On April 25, - 827 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports SIGNAL 88 v. LYCONIC Cite as 310 Neb. 824 2016, the arbitrator issued a written opinion finding Signal 88’s March 1 letter effectively terminated the agreement as of July 1. Specifically, the arbitrator stated: In providing this notice Signal 88 provided 122 days advance notice and therefore can request an equal amount of days of termination assistance. Accordingly, Lyconic’s obligation to provide termination assistance extends 122 days from the termination date, expiring November 11, 2016. Signal 88 is obligated to pay for Lyconic’s services at the renewal rate of $25,000 per month. Thereafter, Signal 88 notified Lyconic that it would not require termination assistance after June 2, 2016. District Court Proceedings On May 5, 2016, Lyconic applied “for an [o]rder confirming the arbitration award and entry of judgment thereon.” In its application, Lyconic alleged that the arbitrator determined that “Signal 88 is obligated to pay Lyconic $25,000 per month through November 11, 2016.” While that application was pending, Lyconic also filed an answer to the original lawsuit, acknowledging the arbitration award, but including a counterclaim, which it alleged was not resolved by arbitration. Lyconic subsequently amended its counterclaim to add additional allegations that following the arbitrator’s decision, but prior to the termination date, Signal 88 hacked into Lyconic’s computers, downloaded information, and wrongfully disclosed confidential information. On May 31, 2016, the court informed the parties in an email that it would grant Lyconic’s application to confirm the arbitration award and directed Lyconic to prepare and submit a proposed order. However, no such order was entered. On August 23, 2019, both parties filed motions labeled as a motion for partial summary judgment. Lyconic’s motion asserted that “[t]he arbitrator further determined that Signal 88 was obligated to pay Lyconic for 122 days of Termination Assistance at the rate of $25,000 per month.” (Emphasis - 828 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports SIGNAL 88 v. LYCONIC Cite as 310 Neb. 824 supplied.) Signal 88’s motion sought judgment regarding Lyconic’s amended counterclaims. At a hearing on the motions, the court discussed the language of the arbitration award and stated that although the court agreed with the arbitrator’s findings that Signal 88’s March 1, 2016, letter terminated the agreement as of July 1 and that Signal 88 was obligated to pay Lyconic during the termination assistance period, the court disagreed with the arbitrator’s determination regarding Signal 88’s liability. The court explained that under its own interpretation of the parties’ agreement, termination assistance is not the same as services [and the agreement] does specifically say that Lyconic would be entitled to the then currently hourly rate for the provision of its termination assistance. So the Court believes that Signal 88 should pay the 122 days of termination assistance at Lyconic’s then current hourly rate as provided for in [the agreement]. At the conclusion of the hearing, the district court announced it would grant Lyconic’s motion to confirm the award, but would also move forward with a bench trial over Lyconic’s counterclaims. Following trial, the court issued an “Order Granting Application for Confirmation of Arbitration Award & Entry of Judgment.” The court’s order stated: “Lyconic moved for confirmation of the arbitrator’s award within the applicable time frame and given that the record does not show that a party moved for vacation, modification or correction of the arbitrator’s award, this Court must confirm the award.” The court quoted the text of § 25-2612 in full: “Within sixty days of the application of a party, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in sections 25-2613 and 25-2614.” In confirming the arbitrator’s decision, the court’s order stated, “[T]he Arbitrator - 829 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports SIGNAL 88 v. LYCONIC Cite as 310 Neb. 824 found that Signal 88 is obligated to pay Lyconic for 122 days of Termination Assistance at the renewal rate of $25,000 per month.” (Emphasis supplied.) The court then proceeded to enter judgment in favor of Lyconic and against Signal 88 in the amount of $109,166.67 with interest accruing at the rate of 1.5 percent per month as of November 26, 2016. Signal 88 moved for a new trial or to alter or amend the judgment, arguing the court should have simply “confirm[ed] the arbitration decision.” At the hearing on the motion, Signal 88 argued the court should grant a “new trial and then remand the issue of termination assistance to the arbitrator to clarify.” Signal 88 argued the court “has the power to remand under [Neb. Rev. Stat. § 25-2610 (Reissue 2016)].” The court issued an order denying the motion. Signal 88 appealed. Court of Appeals On appeal, Signal 88 assigned and argued that the “trial court erred in modifying rather than simply confirming the arbitration award.” Signal 88 argued that by entering a $109,166.67 judgment against it, the trial court had “dramatically exceeded its authority in modifying the arbitration award, and its decision should therefore be reversed.” 2 Signal 88 argued that because there was no motion to vacate, modify, or correct the award, “the trial court had no discretion and was required to confirm the award.” 3 Signal 88 also assigned and argued that if Lyconic’s position prevailed, then the “trial court erred in not remanding the question of termination assistance to the arbitrator.” 4 Signal 88 argued that if the court found the award to be ambiguous, a remand to the arbitrator would still be appropriate. The Court of Appeals recognized that the district court adopted Lyconic’s interpretation of the arbitration decision 2 Brief for appellant at 20. 3 Id. at 22. 4 Id. at 37. - 830 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports SIGNAL 88 v. LYCONIC Cite as 310 Neb. 824 and that the language in the district court’s order did not track with the language used by the arbitrator. The court cited our decision in Cinatl v. Prososki, 5 in which we held that without a pending application to modify, vacate, or correct an arbitration award, a district court shall confirm the award. The appellate court acknowledged there was no application to modify, vacate, or correct the award, but found the proper issue for resolution in this case was “clarification,” 6 alluding to Neb. Rev. Stat. § 25-2610 (Reissue 2016). The court determined that the arbitrator’s award was ambiguous and, based upon Domino Group v. Charlie Parker Mem. Foundation, 7 concluded that the best course was to vacate the judgment and have the district court remand the matter to the arbitrator for clarification. ASSIGNMENTS OF ERROR Lyconic petitions for further review. Lyconic assigns, summarized, that the Court of Appeals erred in reversing, vacating, and remanding the judgment with instructions to refer the matter to the arbitrator and erred in finding ambiguity.",facts
+630,4455121,1,1,"¶2 The Respondent was admitted to the Oklahoma Bar on April 25, 2003. 2 Following law school he worked for several different law firms. His responsibilities at those firms did not include collecting client funds or billing, other than keeping an account of his own billable hours. 3 Somewhere between 2014 and 2015 he was employed with the state as in-house counsel to the Commissioners of the Land Office (CLO). 4 Shortly thereafter, an attorney friend of his, Isaac Warren, opened a new practice and asked the Respondent to join him. 5 The Respondent left the CLO and joined Mr. Warren's practice in the spring of 2015. 6 However, within a few months of joining, Mr. Warren suddenly disclosed he was moving to Texas and left the practice to the Respondent but the record reflects there were few if any paying clients/cases transferred to the Respondent. 7 The Respondent testified that this is when his problems began. 8 He stated, I didn't really have a feel for what's involved in running your own practice, the marketing, the funds management, the administrative. . . . I was just really floundering. 9 By 2016 his finances were suffering and other problems arose. 10 His wife developed an ongoing serious illness causing the Respondent to take on more responsibilities with their five children, some of which have special needs that require substantial attention. 11 This caused the Respondent to devote less time to gaining business, servicing clients, and collecting from clients. 12 He testified, it prevented him from keeping up with his Mandatory Continuing Legal Education (MCLE) requirements; he could not afford it and keep the lights on or put gas in the car. 13 ¶3 On March 15, 2017, a letter from the Oklahoma Bar Association (OBA) was sent to the Respondent informing him of the May 15, 2017, deadline to show cause why his license should not be suspended for failure to comply with MCLE requirements for the year 2016. 14 The Respondent did not respond and on May 30, 2017, this Court issued an Order suspending the Respondent from the practice of law for failure to comply with Rules 3 and 5 of the rules for MCLE, 5 O.S. 2011, ch.1, app. 1-B. 15 On the same day, the OBA sent a letter to the Respondent with the attached Order. 16 The letter informed the Respondent that he may seek reinstatement pursuant to MCLE Rules 6(b) and 6(d). The letter also informed him that if he did not reinstate from this suspension he was required, pursuant to Rule 9.1, RGDP, to do the following within twenty (20) days of the May 30, 2017, Order: 1. Notify all your clients having legal business pending by certified mail of your inability to represent them and the necessity for promptly retaining new counsel. 2. File a formal withdrawal as counsel of record in all cases pending in any tribunal. 3. File an affidavit with the Professional Responsibility Commission and with the Clerk of the Supreme Court stating that you have complied with Rule 9.1. The letter also warned him of the consequences for failure to take these actions. The Respondent testified he received this letter on June 3, 2017. 17 ��4 The Respondent did not seek reinstatement as provided in the letter and on June 11, 2018, his name was stricken from the roll of attorneys for this failure to comply with MCLE requirements. 18 The Respondent has ceased to be a member of the OBA since that time. In addition, on June 4, 2018, he was suspended for failure to pay his dues for the year 2018. 19 However, on August 20, 2018, the Respondent paid a late penalty, plus the reinstatement fee and his dues for 2018. 20 Prior to his suspension for failure to comply with MCLE requirements, the Respondent had never had a Bar complaint filed against him. 21",facts
+631,3134300,1,2,"We begin our analysis with the Escrow Act. In construing the Escrow Act, we must ascertain and give effect to the intent of the legislature. Varelis v. Northwestern Memorial Hospital , 167 Ill. 2d 449, 454 (1995). When possible, the intention of the legislature should be determined from the language of the statute. Nottage v. Jeka , 172 Ill. 2d 386, 392 (1996). Besides examining the language of an act, a court should look to the evil that the legislature sought to remedy or the object it sought to attain in enacting the legislation. Castaneda v. Illinois Human Rights Comm'n , 132 Ill. 2d 304, 318 (1989). In the present case, we must determine whether the Escrow Act, in light of the purpose for which the legislature passed the Act, prohibits the imposition of an escrow waiver fee when a borrower elects to pledge an interest-bearing time deposit in lieu of establishing an escrow account for the payment of anticipated taxes. As stated above, section 6 states: “In lieu of the mortgage lender establishing an escrow account or an escrow-like arrangement, a borrower may pledge an interest-bearing time deposit with the mortgage lender in an amount sufficient to secure the payment of anticipated taxes.” 765 ILCS 910/6 (West 1992). The plain language of section 6 clearly provides a borrower with a right to choose between two options. The borrower may elect to pledge an interest-bearing time deposit to cover payment of future anticipated taxes. If the borrower does not elect this option, the mortgage lender can establish an escrow account to cover these payments. There is no provision in section 6 of the Escrow Act which allows for substitution of a third option or conditions to be placed on whichever of the two options the borrower elects. Before passage of the Escrow Act, most standard mortgage loans required the borrower to make monthly deposits into an escrow account to cover future taxes and other anticipated expenditures. Lenders were under no obligation to pay the borrower interest on the funds in the escrow account; thus, lenders received the benefit of the funds deposited by the borrower in the escrow account. In passing the Escrow Act, the legislature sought to give borrowers the benefit of their early payments of taxes by allowing them to pledge interest-bearing time deposits as opposed to having lenders establish escrow accounts. The legislature clearly wanted the borrower to have the right to pledge an interest-bearing time deposit instead of establishing an escrow account. If a mortgage lender is allowed to charge an escrow waiver fee when a borrower exercises that right, the lender would be able to effectively take away a right given the borrower by the legislature. We do not believe that the legislature would have provided a benefit to borrowers only to give the lender a means to reduce or eliminate this benefit. It is evident that the legislature intended for borrowers electing to pledge an interest-bearing time deposit to retain the proceeds from that deposit. It is also evident that the legislature intended to provide only two options to secure the payment of anticipated taxes. We believe that a lender cannot charge an escrow waiver fee when the borrower pledges an interest-bearing time deposit because such a fee is inconsistent with the language of the statute and the legislative intent to provide a benefit to the borrower. Having determined that the Escrow Act does not allow defendant to charge an escrow waiver fee should plaintiff elect to pledge an interest-bearing time deposit, we must next determine whether that portion of section 6 prohibiting escrow waiver fees is preempted by federal law. The supremacy clause of the United States Constitution states that “the Laws of the United States  shall be the supreme Law of the Land;  any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. Congress' purpose “ `is the ultimate touchstone' of pre-emption analysis.” Cipollone v. Liggett Group, Inc. , 505 U.S. 504, 516, 120 L. Ed. 2d 407, 422, 112 S. Ct. 2608, 2617 (1992), quoting Malone v. White Motor Corp. , 435 U.S. 497, 504, 55 L. Ed. 2d 443, 450, 98 S. Ct. 1185, 1190 (1978). “Congress' intent to preempt State law may be manifested `by express provision, by implication, or by a conflict between federal and state law.' ” Busch v. Graphic Color Corp. , 169 Ill. 2d 325, 335 (1996), quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. , 514 U.S. 645, 654, 131 L. Ed. 2d 695, 704, 115 S. Ct. 1671, 1676 (1995). When reading the Escrow Act to include a prohibition against escrow waiver fees, defendant claims that the federal Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA) (12 U.S.C. §1735f–7a (1994)) preempts the Escrow Act. DIDMCA states in relevant part: “The provisions of the constitution or the laws of any State expressly limiting the rate or amount of interest, discount points, finance charges, or other charges which may be charged, taken, received, or reserved shall not apply to any loan, mortgage, credit sale, or advance” made after March 31, 1980, and secured by a first lien on residential real property. 12 U.S.C. §1735f–7a(1) (1994). We must initially determine whether the Escrow Act's prohibition of an escrow waiver fee falls under the purview of DIDMCA. In the present case, defendant charged plaintiffs a “one-time service fee” equal to 0.25% of the total principal amount of the loan upon plaintiffs' election to pledge an interest-bearing time deposit in lieu of defendant establishing an escrow account. If the section 6 prohibition of this fee expressly limits the rate or amount of interest, discount points, finance charges, or other charges of the mortgage loan, federal law may preempt the section. Under regulations promulgated pursuant to section 501 of DIDMCA, the Federal Home Loan Bank Board defined the contours of the federal regulatory scheme: “Nothing in this section preempts limitation in state laws on prepayment charges, attorneys fees, late charges or other provisions designed to protect borrowers.” 12 C.F.R. §590.3(c) (1997). As stated above, the legislature passed the Escrow Act with the intent to provide borrowers with the monetary benefit mortgage lenders had traditionally received from escrow accounts. This measure was clearly designed to protect borrowers; thus, DIDMCA does not preempt the Escrow Act. Our decision is supported by an examination of the purpose behind passage of DIDMCA. In the late 1970s, interest rates increased above the level lenders could legally charge under state usury laws. To spur the home mortgage market and encourage home sales, Congress passed DIDMCA and eliminated interest rate ceilings on first mortgages. Congress' aim in enacting DIDMCA had “particular emphasis on state usury laws which restrict interest rates to below-market levels and result in artificial disruptions in the supply of home-loan mortgage funds.” (Emphasis in original.) Grunbeck v. Dime Savings Bank of New York, FSB , 74 F.3d 331, 339 (1st Cir. 1996). It is clear that DIDMCA is not meant to preempt situations like the present case. Defendant cannot show that the prohibition of escrow waiver fees falls under the purview of DIDMCA. Defendant additionally argues that if section 6 of the Escrow Act is read to prohibit escrow waiver fees, the Escrow Act is unconstitutionally vague. A statute violates the due process clauses of the United States Constitution or the Illinois Constitution on the basis of vagueness “only if its terms are so ill-defined that the ultimate decision as to its meaning rests on the opinions and whims of the trier of fact rather than any objective criteria or facts.” People v. Burpo , 164 Ill. 2d 261, 265-66 (1995). Here, our decision is based on the language of section 6 and the purpose behind the passage of the Escrow Act. That defendant may have reasonably believed that the imposition of escrow waiver fees was not prohibited by the Escrow Act is not sufficient to render the statute unconstitutional for vagueness. The fact that a statute might be susceptible of misapplication does not necessarily make it unconstitutional. Stein v. Howlett , 52 Ill. 2d 570, 580 (1972). We do not find section 6 of the Escrow Act to be so indefinite and uncertain that we cannot determine the intention of the legislature. We reject defendant's argument that section 6 of the Escrow Act is void for vagueness. Finally, defendant argues that the prohibition of escrow waiver fees by the appellate court is a legislative act that violates the separation of powers doctrine by reading a prohibition into the statute. It is the function of the judiciary to determine what the law is and to apply statutes to cases. See In re Marriage of Cohn , 93 Ill. 2d 190, 204 (1982); People v. Nicholls , 71 Ill. 2d 166, 179 (1978). Here, we are merely construing section 6 of the Escrow Act and applying it to the present case–there is no violation of the separation of powers doctrine. Having determined that charging an escrow waiver fee violates section 6 of the Escrow Act, we must next determine whether defendant violated the Fraud Act by charging this fee to plaintiffs. Section 2 of the Fraud Act states: “Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact,  are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” 815 ILCS 505/2 (West 1992). In the present case, we find that defendant's action of charging plaintiffs an escrow waiver fee when plaintiffs elected to pledge an interest-bearing time deposit was not intended to deceive or defraud plaintiffs or be unfair to plaintiffs. Further, defendant did not conceal, suppress, or omit any material fact with the intent that plaintiffs would rely on such action. Defendant, in this case, merely made an honest mistake concerning the interpretation of a statute that had yet to be construed. While we have found that defendant's action of charging an escrow waiver fee was prohibited under the Escrow Act, we do not believe that the defendant's actions in this case violated the Fraud Act. See Lee v. Nationwide Cassel, L.P. , 174 Ill. 2d 540, 550-51 (1996).",analysis
+632,1708955,1,2,"Following a high school football game on October 26, 1979, a party was held on a farm approximately seven miles west of Highmore, South Dakota. Randy Shaull, Ben Hart and Ross Peterson each consumed beer at the party. Ben Hart left the farm in his pickup truck with Randy Shaull, Mary Cowan, and Ricki Kusser as passengers. All were seated in the front seat which created a crowded situation, the radio was playing, they were singing and intermittently talking, and one of the girls was seated so that she obstructed the shifting mechanism. The combined effect created difficult driving circumstances. Ross Peterson also left the farm at the same time with Billie Etbauer and Ben Aasby as passengers in his pickup truck. Ross Peterson passed the Hart pickup truck approximately one mile away from the farm. Both pickups proceeded towards Highmore. Travel conditions were dark with only a slight breeze. Since the road was gravel, the air was dusty. Testimony generally disclosed that the pickup trucks were traveling between 50 and 55 miles per hour and that there existed approximately 100 yards between the vehicles. Ross Peterson noticed that one of the headlights was burned out on the Hart vehicle and slowed down to 30 to 35 miles per hour. Soon thereafter, one of the passengers in the Peterson vehicle realized that the Hart vehicle had crashed into the ditch approximately two blocks behind the Peterson vehicle. Appellant Randy Shaull was injured in the accident. The morning of the incident, a mud grip tire was placed on the front passenger side of the Hart vehicle to replace a flat tire. This resulted in a tire placement of three mud grip tires with one standard tread tire being on the front driver's side of the vehicle at the time of the accident. Both of Ben Hart's parents testified that prior to the accident the vehicle pulled to one side when the brakes were applied. Hyde County Deputy Sheriff Oliver Olson investigated the accident and filed an accident report. At trial, Deputy Olson testified that approximately one hour after the accident, Ben Hart told him that he had been driving about fifty miles per hour, hit some loose gravel and lost it. According to Deputy Olson, Ben made no mention of the Peterson vehicle. Ben Hart testified, I remember seeing Ross's brake lights come on and that's when I stepped on my brakes and then I lost control of it. In response to being questioned about the distance between the pickups when he first saw the brake lights of the Peterson pickup come on, Ben Hart testified, I really don't know for sure, it was—I would say 50 yards, but I am not exactly positive. Ben Hart told Deputy Olson that he had been drinking the night of the accident. South Dakota Highway Patrolman Pat Murphy, who observed Ben Hart subsequent to the accident, testified that it appeared to me [Ben Hart] had been drinking because he had very bloodshot eyes. Four separate issues are presented by the briefs.",facts
+633,2757926,1,4,"This case involves the situation where an expert directly or indirectly vouches for a witness’s credibility thereby commenting on a defendant’s guilt or innocence. In regards to this type of testimony, we have stated: Although we are committed to the liberal view on the admission of psychological evidence, we continue to hold expert testimony is not admissible merely to bolster credibility. Our system of justice vests the jury with the function of evaluating a witness’s credibility. The reason for not allowing this testimony is that a witness’s credibility is not a fact in issue subject to expert opinion. Such opinions not only replace the jury’s function in determining 5 credibility, but the jury can employ this type of testimony as a direct comment on defendant’s guilt or innocence. Moreover, when an expert comments, directly or indirectly, on a witness’s credibility, the expert is giving his or her scientific certainty stamp of approval on the testimony even though an expert cannot accurately opine when a witness is telling the truth. In our system of justice, it is the jury’s function to determine the credibility of a witness. An abuse of discretion occurs when a court allows such testimony. We again reaffirm that we are committed to the legal principle that an expert witness cannot give testimony that directly or indirectly comments on the child’s credibility. We recognize there is a very thin line between testimony that assists the jury in reaching its verdict and testimony that conveys to the jury that the child’s out-of-court statements and testimony are credible. State v. Dudley, ___ N.W.2d ___, ___ (Iowa 2014) (citations omitted) (internal quotation marks omitted). Applying these principles to the objectionable testimony, we find the expert witness’s testimony indirectly vouched for M.M.’s credibility thereby commenting on the defendant’s guilt or innocence. By opining M.M.’s demeanor was “completely consistent with a child who has been traumatized, particularly multiple times,” Kay was vouching for the credibility of the child. In other words, the expert witness is saying M.M.’s demeanor means the child suffered a sexual abuse trauma, therefore, the child must be telling the truth. See id. at ___. We allow an expert witness to testify generally that victims of child abuse display certain demeanors. Id. at ___; see also State v. Gettier, 438 N.W.2d 1, 4 (Iowa 1989). However, when an expert witness testifies a child’s demeanor or symptoms are consistent with child abuse, the expert crosses that very thin line and indirectly vouches for the victim’s credibility, thereby commenting on the defendant’s guilt or innocence. In its brief, the State claims Jaquez was not prejudiced by the admission of this testimony. We disagree. 6 M.M.’s testimony was not consistent with her out-of-court statements. She testified the abuse occurred at least once a week at trial, but told the forensic investigator it only happened three times. M.M. also testified the alleged abuse began when she was ten years old. However, her mother testified she was exhibiting sexual behavior towards her peers at the age of eight, inconsistent with when M.M. alleged the incidents began. Furthermore, M.M. testified while the alleged abuse was occurring her mother would be in the home cooking or showering in a bathroom with a shared wall to the room where the incidents were occurring. M.M. testified she would cry during the abuse and that she would bleed afterwards. This testimony is inconsistent with her mother’s testimony. Her mother testified she did not hear any crying or notice any abnormal bleeding and that she was unaware of any of the alleged incidents occurring in her house until the child made the accusation. Finally, the physical evidence did not support M.M.’s claim of child abuse. Dr. Hostetler testified there was nothing abnormal about the child’s physical examination other than a little scar tissue around her anal opening. Dr. Hostetler first testified the scar tissue, which was approximately a half a centimeter in length, “could be from anything from having repeated hard stools that passed through and caused fissures, or other kind of trauma like penetrating trauma.” However, M.M. had not made any allegations of anal contact until after the doctor’s examination. Additionally, because of the new allegation following Dr. Hostetler’s examination, the child was taken for a second forensic interview immediately following the exam. Dr. Hostetler testified in all the years she has been examining children at the Child Protection Center 7 she had never had a child do a forensic interview, then the exam, and then go back for a second interview. Moreover, the county attorney emphasized this wrongly admitted testimony in his presentation to the jury. In his opening statement, the county attorney warned the jury the child was not going to be emotional in her testimony. He was preparing the jury to ensure the jury did not see the child’s seemingly odd behavior of emotional apathy as a lack of credibility. He then elicited a direct answer from Kay regarding this exact behavior, ensuring he was not the only person telling the jury it was normal for M.M. to act in this manner. This testimony set the tone for the remainder of Kay’s testimony regarding what the child told her occurred.",analysis
+634,2655857,1,3,"[1] A protection order pursuant to § 42-924 is analogous to an injunction. Thus, the grant or denial of a protection order is reviewed de novo on the record. In such de novo review, an appellate court reaches conclusions independent of the factual findings of the trial court. However, where the credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the circumstances that Nebraska Advance Sheets 590 287 NEBRASKA REPORTS the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.1",standard of review
+635,2498898,1,2,"[¶ 3] The charges against Ms. Remmick stemmed from actions taken by her mother, Julie Jacobsen, during 2002 and 2003. At that time, Ms. Jacobsen owned Better Bookkeeping and Accounting, which had a contract to perform bookkeeping duties for Fox Park Homeowners Association and Fox Park Service and Improvement District (Fox Park). The Fox Park entities were the governing and operating bodies of a trailer park subdivision in Gillette, Wyoming, and were overseen by a common Board of Directors (Board). [¶ 4] As part of her duties, Ms. Jacobsen managed two bank accounts authorized by the Board, the money market account and the operating account. Money from tax assessments, state grants, and bank loans, as well as money earmarked for special improvements, was kept in the money market account. When payments from this account were authorized by the Board, Ms. Jacobsen filled out checks on this account and presented them for Board members' signatures. Two Board members' signatures were required on each check. [¶ 5] On June 15, 2002, Ms. Jacobsen wrote a $3,000.00 check from the money market account to Ms. Remmick. The check on its face read Fox Park and bore the forged signatures of two Board members. Ms. Remmick accepted and endorsed the check. This check was the basis for Count I of the Information filed against Ms. Remmick. [¶ 6] The operating account was funded through monthly dues paid by the Fox Park residents. This account was used to pay normal day-to-day operating expenses. Checks written on this account also had to bear the signatures of two Board members. When Ms. Jacobsen received Fox Park's bills at her business address, she filled out checks and presented them for Board members' signatures. [¶ 7] On April 15, 2003, Ms. Jacobsen presented a check to her bank for $3,000.00, which she had written on the Fox Park operating account and made out to her business, Better Bookkeeping and Accounting. It bore the forged signatures of two Board members. Ms. Jacobsen kept $200.00 in cash and deposited the remaining $2,800.00 in her personal checking account. [1] That deposit increased her personal account balance from $334.23 to $3,134.23. On that same date, she wrote a $1,200.00 check to Ms. Remmick from that account. This check formed the basis for Count VII of the Information. [¶ 8] Ms. Jacobsen also managed a third account, ostensibly in Fox Park's name. This account had not been authorized by the Board, and its members were unaware of its existence until law enforcement began investigating Ms. Jacobsen. Ms. Jacobsen was the only signatory on the unauthorized account, and she made various transfers of money from the Fox Park operating and money market accounts into this account. The checks for this account bore the name Fox Park District. [¶ 9] Ms. Jacobsen wrote four checks to Ms. Remmick from the unauthorized account: one on June 15, 2002, for $3,000.00 (Count II); one on January 21, 2003, for $1,200.00 (Count III); one on June 17, 2003, for $1,000.00 (Count IV); and one on November 4, 2002, for $300.00 (Count V). Each of the checks showed the name Fox Park District on the face of the check. Ms. Remmick endorsed the checks. [¶ 10] On December 6, 2002, Ms. Jacobsen wrote a check for $2,600.00 to her business, Better Bookkeeping, from the unauthorized account. She deposited the check in her personal bank account, increasing her ledger balance from $1,714.50 to $4,314.50. This same day, she wrote a $2,000.00 check to Ms. Remmick from her personal account. Ms. Remmick endorsed that check. This check formed the basis for Count VI of the Information. [¶ 11] In addition, on January 28, 2003, Ms. Jacobsen opened a $1,000.00 line of credit in Fox Park's name at Checker Auto Parts. She did so without authorization from the Board. The list of authorized users of this account included Ms. Jacobsen, Ms. Remmick, Ms. Remmick's sister, and a friend. Ms. Remmick later used this charge account, charging $65.39 worth of items and signing her name to the sales receipt. The receipt identified the charge account holder as Fox Park. This transaction served, in part, as evidence of the conspiracy alleged in Count V against Ms. Remmick. [2] [¶ 12] Campbell County law enforcement began investigating Ms. Jacobsen in late 2003, and eventually notified federal investigators and prosecutors of the results of their investigation. A federal grand jury indicted Ms. Jacobsen on July 13, 2005 on tax evasion charges, to which she pled guilty. The federal court sentenced her on August 25, 2006, to serve a period of incarceration of eighteen months, followed by three years of supervised probation. At the request of the U.S. Attorney's Office, the Campbell County Attorney's Office deferred prosecuting Ms. Jacobsen during the pendency of the federal case. Three months after Ms. Jacobsen was released from federal custody, the Campbell County Attorney's Office filed charges of forgery and larceny against her. On October 23, 2009, the jury returned guilty verdicts on all ten counts that had been brought against Ms. Jacobsen. She was not present in court when the verdict was received, however, apparently because she had absconded from the jurisdiction. [¶ 13] Although the prosecution of Ms. Remmick stemmed from events that occurred between June, 2002 and June, 2003, the charges against her were not brought until October 28, 2009, after Ms. Jacobsen had been found guilty. On March 3, 2010, Ms. Remmick filed a Motion to Dismiss for Prearrest Delay as a Denial of Due Process. Her contention was that, because the State had delayed her prosecution until after her mother had left the jurisdiction, her mother was no longer available to assist her in preparing a defense. After a hearing, the district court denied the motion. Trial was originally scheduled for May, 2010. Ms. Remmick, however, filed a motion for continuance seeking additional time to prepare for trial. She also filed a Waiver of Speedy Trial. The motion was granted and trial was held in August, 2010. After a two-day trial, the jury found Ms. Remmick guilty on all counts. [¶ 14] The court imposed terms of imprisonment of four to nine years on each count, to be served concurrently with one another and consecutively to one imposed in a separate criminal case. The court suspended the period of imprisonment in favor of nine years of supervised probation. Ms. Remmick filed this timely appeal.",facts
+636,2358977,1,9,"Accordingly, we affirm the judgment of the court of appeals and remand the case for a determination whether Cash Advance and Preferred Cash Loans are arms of the Miami Tribe of Oklahoma and the Santee Sioux Nation, respectively, and therefore entitled to those federally recognized tribes' sovereign immunity from this investigatory subpoena enforcement action.",conclusion
+637,887382,1,1,"¶ 2 Yockeys state four issues on appeal, which we restate as follows: Did the District Court err when it concluded that Yockeys are not entitled to a preliminary injunction?",issues
+638,4564610,1,5,"We conclude that the district court did not abuse its discretion in declining to award attorney fees or costs to Brumbaugh. Accordingly, we affirm. Affirmed. 37 Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).",conclusion
+639,1342484,1,5,"The plea judge did not abuse his discretion in refusing to allow withdrawal of the Alford plea alone. Therefore, we affirm. AFFIRMED. WALLER, J., concurs. KITTREDGE, J., concurring in a separate opinion in which TOAL, C.J. and BEATTY, J., concur.",conclusion
+640,2686878,2,1,"We have granted discretionary review under our jurisdiction to consider express and direct conflict of decisions, see art V, § 3(b)(3), Fla. Const., because the Third District’s decision in Basulto has created misapplication conflict with our decision in Seifert. See generally Ascensio v. State, 497 So. 2d 640, 641 (Fla. -7- 1986) (“Based on the conflict created by [the] misapplication of law, we have jurisdiction under article V, section 3(b)(3), Florida Constitution.”); State v. Stacey, 482 So. 2d 1350, 1351 (Fla. 1985) (exercising jurisdiction because the district court “misapplied controlling case law to the facts of the case”). In its decision below, the Third District misapplied the unconscionability standard in spite of the trial court’s explicit ruling denying the dealership’s motion to dismiss and/or compel arbitration. The cause on appeal before the Third District required an application of the Seifert standard. In Seifert, we previously provided guidance for evaluating motions to compel arbitration agreements. See Seifert, 750 So. 2d at 636 (“Under both federal statutory provisions and Florida’s arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.”). In denying the dealership’s motion to compel arbitration, the trial court concluded “as a matter of law that no valid agreement to arbitrate exists in this case,” which relates to the first prong of the Seifert standard. However, the Third District neglected to perform a Seifert analysis in making its decision on review. Accordingly, we determine that the Third District’s Basulto decision misapplied the Seifert standard, which governs the evaluation of motions to compel arbitration agreements in Florida courts. -8-",jurisdiction
+641,6324555,1,1,"Over 3 years after Teon D. Hill’s direct appeal concluded, he moved for postconviction relief. The district court denied the motion as untimely filed. On appeal, Hill contends that the 1-year limitation period 1 for filing a postconviction motion should be tolled during the pendency of a different collateral attack on the judgment. Because § 29-3001(4) does not provide for tolling under the circumstances and Hill was not entirely prevented from filing his motion during the 1-year period, we affirm the district court’s order.",introduction
+642,1805619,1,3,"The standard of review applicable to a summary judgment for a defendant in the context of these facts is set out as follows: Summary judgment for a defendant is proper when there is no genuine issue of material fact as to any element of a cause of action and the defendant is entitled to a judgment as a matter of law. If there is any evidence of every element of a cause of action, summary judgment is inappropriate. In determining whether there is any evidence to support every element of a cause of action in this case, this Court must review the record in a light most favorable to the plaintiffs and resolve all reasonable doubts against the defendant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986), citing Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). The motion must be denied if there is a scintilla of evidence in support of the plaintiffs' claims. Kimbrel v. Mercedes-Benz Credit Corp., 476 So.2d 94 (Ala.1985); Ray v. Montgomery, 399 So.2d 230, 232 (Ala.1980); see A.R. Civ.P., Rule 56(c) and comments thereto.",standard of review
+643,2168822,1,2,"The parties agree that section 600B.41A relieves Randy from any future support for Daniel following the date of the order overcoming paternity. They also agree that such an order must provide for satisfaction of previously unpaid support. The question is how to accomplish the latter task, required by section 600B.41A(4)(b), where, as here, the original order governed support for three children. Randy argues on appeal that fairness dictates a recalculation of the original child support award, and that the district court's failure to do so must be reversed. His argument rests on the theory that the 1993 order was entered under mistake of fact and never was designed to set a level of support for two children. The appellees counter that principles of res judicata preclude the recalculation Randy seeks. We agree. To prevail on a defense of res judicata, the party asserting the doctrine must prove four prerequisites: (1) the issue concluded must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment. In re Marriage of Van Veen, 545 N.W.2d 263, 266 (Iowa 1996). Clearly the support order before us meets these criteria. Notwithstanding Randy's assertions to the contrary, the 1993 order plainly establishes the support owing by Randy when there are only two children entitled to his support. Thus the issues, then and now, are identical. The question of support for two children, as well as for three, was not only litigated by these same parties in the former action but was material, relevant, necessary and essential to the former judgment. Randy's bald assertion that the provision for two children was merely dicta is entirely without merit. Nor are we persuaded by Randy's alternative argument that recalculation based on current child support guidelines is necessary to set the matter right based on the true state of affairs at the time of the 1993 decree. He claims that the guidelines amount for two children for a person earning his income during the pertinent period would be $277.91 per month, not $327 as the decree provides. Again, res judicata prevents the recalculation Randy seeks. And with good reason. The doctrine furnishes necessary finality to judicial decisions. In essence, Randy seeks a retroactive modification of the support order for Daniel's two siblings. The district court was without authority to grant such relief. See Van Veen, 545 N.W.2d at 266 (district court has no authority to divest parties of rights accrued under the original decree). Finally, we reject Randy's contention that the fairest result would be to prorate the support due under the 1993 order among the three children in accordance with this court's decision in State ex rel. Schuder v. Schuder, 578 N.W.2d 685 (Iowa 1998). Schuder involved a specific statutory scheme related to assignment of child support payments to the Iowa Department of Human Services when one child on a multi-child support order is placed in foster care. Schuder, 578 N.W.2d at 686. Precise language in the governing statute calls for an equal and proportionate division of the child support award for purposes of calculating the assignment. Id. at 687. The governing statute before us, Iowa Code section 600B.41A(4), contains no comparable language. Moreover, a prorata reduction would effectively reward the parent who delays in paying support or rectifying an erroneous paternity determination. The potential inequity of such a policy is amply demonstrated here. A one-third satisfaction of the $350 per month support award, as requested by Randy, would equal $116.66 per month, leaving unpaid past support for two children of only $233.34 per month, an amount less than the 1993 decreed amount of $239 for one child. In conclusion, we are convinced the order entered by the district court comports with the statutory requirement without violating principles of res judicata applicable to the child support judgment for Daniel or his two siblings. We therefore affirm the judgment of the district court. AFFIRMED. All justices concur except LAVORATO, J., who takes no part.",issues
+644,4393723,1,4,"Fuentes contends on appeal that the district court erred in denying his motion for postconviction relief and asserts various grounds in support of his assignment of error. Fuentes argues that counsel was ineffective in failing to (1) file a motion to suppress the photo array and out-of-court identification of Fuentes, (2) investigate and depose a clerk at the liquor store next door to the victim’s residence at the time of the alleged sexual assault, (3) investigate and depose an acquaintance of Fuentes who was at the liquor store the day of the incident, (4) investigate and depose a coworker of Fuentes, (5) investigate and depose the unknown male witness at the time of the sexual assault, (6) raise an intoxication defense, (7) seek the recusal of the district court judge, (8) have Fuentes take a polygraph examination, (9) engage in plea negotiations or communicate plea offers from the State to Fuentes, and (10) adequately explore inaccuracies in the testimony of several witnesses. Several of these assignments of error can be rejected because they were not raised in Fuentes’ motion. The motion does not raise an ineffectiveness claim with respect to three witnesses— the liquor store clerk, Fuentes’ acquaintance, or his coworker. Nor does that motion assert ineffectiveness with regard to the failure to raise the intoxication defense, seek a polygraph examination, engage in plea negotiations, or communicate plea deals. As such, we turn to the arguments both raised in Fuentes’ motion and preserved on appeal. Failure to Seek Recusal of District Court Judge. Fuentes contends that the trial judge should have recused himself, because the judge assigned to his case had previously 4 Huston, supra note 1. - 924 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. FUENTES Cite as 302 Neb. 919 represented him on a criminal matter in 1995. Fuentes further contends that trial counsel was ineffective for not seeking such recusal. [4-7] The right to an impartial judge is guaranteed under the Due Process Clauses of the U.S. and Nebraska Constitutions, the parameters of which are coextensive.5 In order to show a constitutional violation of the right to an impartial judge, a defendant must prove actual bias or structural error.6 Structural error occurs when the defendant shows that a judge has such a strong personal or financial interest in the outcome of the trial that he or she was unable to hold the proper balance between the State and the accused.7 Although structural error requires automatic dismissal if brought on direct appeal, not all structural error will result in a presumption of prejudice when raised in a motion for postconviction relief.8 [8,9] In addition to the constitutional right to an impartial judge, the Nebraska Revised Code of Judicial Conduct states that a judge must recuse himself or herself from a case if the judge’s impartiality might reasonably be questioned.9 Under the code, such instances in which the judge’s impartiality might reasonably be questioned specifically include where “‘“[t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer . . . .”’”10 However, a defendant seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.11 5 State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004). 6 Id. 7 Id. 8 See Weaver v. Massachusetts, ___ U.S. ___, 137 S. Ct. 1899, 198 L. Ed. 2d 420 (2017). 9 State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017). 10 Id. at 314, 893 N.W.2d at 438. 11 Buttercase, supra note 9. - 925 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. FUENTES Cite as 302 Neb. 919 Fuentes essentially acknowledges that this case does not include structural error. Nor does Fuentes argue that his trial judge was aware of confidential information that was harmful to Fuetnes’ case. Rather, Fuentes now argues that the trial judge should have recused himself due to the appearance of impropriety. But, as we noted in State v. Buttercase,12 a defend­ ant has a heavy burden to overcome the presumption of judicial impartiality and show that the judge has a personal bias or prejudice concerning the defendant. In Buttercase, the defendant sought to force the removal of a judge who had presided over prior criminal charges filed against him. We rejected the claim, noting that “the fact that the court previously presided over other actions involving the parties and made rulings against one or another of the parties” was insufficient to show bias.13 We observed that the fact that a judge knows most of the attorneys practicing in his or her district is common, and the fact that a judge knows attorneys through professional practices and organizations does not, by itself, create the appearance of impropriety. We further observed that judicial rulings alone almost never constitute a valid basis for a bias or partiality motion directed to a trial judge. While Buttercase dealt with a judge who had previously overseen charges against a defendant, we are presented here with a judge who, 17 years earlier, apparently represented the defendant in a criminal proceeding. The two cases are, of course, factually distinct, but both touch on whether prior knowledge of a defendant creates an appearance of bias. Fuentes has not offered any evidence whatsoever to show that the trial judge had access to confidential information or even recalled representing Fuentes; that the trial judge used confidential, personal information in presiding over Fuentes’ 12 Id. 13 Id. at 316, 893 N.W.2d at 439. - 926 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. FUENTES Cite as 302 Neb. 919 trial or in sentencing him; or, indeed, that the trial judge was biased or prejudiced against Fuentes in any way. We also observe that while Fuentes suggested in his deposition that an oral motion seeking the trial judge’s recusal was made, there is no record of such an oral motion, let alone a written motion. Fuentes has failed to meet his burden to show that he was prejudiced by the failure of the trial court judge to recuse himself. There is no merit to this argument on appeal. Failure to File Motion to Suppress Photo Array and Out-of-Court Identification. Fuentes argues that counsel was ineffective in failing to file a motion to suppress the photo array and in failing to object to all testimony regarding out-of-court identification by Analicia. The basis of his argument appears to be his assertion that Analicia was not given an advisement in advance of identifying him from a photo array and that DelMaria’s presence impacted Analicia’s identification. [10-12] An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law.14 Whether identification procedures were unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures.15 The factors to be considered are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness, and the length 14 State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). 15 Id. - 927 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. FUENTES Cite as 302 Neb. 919 of time between the crime and the identification.16 We have noted that “an array of five photographs is sufficient to constitute a fair and adequate array when attempting to identify a single perpetrator.”17 The record contains very little information about the photo array. The photo array itself is not in the record. There is no dispute that a motion to suppress any identification arising from the photo array was not filed, and counsel did not otherwise object to evidence offered on the photo array and Analicia’s identification of Fuentes. The officer who prepared the photo array and showed it to Analicia testified during trial that he was also the officer who first reported to the scene of the alleged assault. He further testified that at the time he met with Gabriel and DelMaria, he did not interview Analicia, because it was policy for child sexual assault victims to be interviewed by individuals trained in appropriate interview techniques. The officer further testified that at the time he spoke with Gabriel and DelMaria, the couple identified Fuentes as the individual who had been outside their apartment at the time of the alleged assault, because Gabriel had been outside and had seen Fuentes arrive. The officer also testified that Fuentes was not at the scene when he arrived, but that the officer effected a traffic stop of Fuentes a few days later, on August 24, 2012. The officer additionally testified that he prepared a photo array of photographs of six individuals—Fuentes and five others—and showed it to Analicia, in the presence of DelMaria, on August 26, 2012, at the Scottsbluff Police Department. According to this testimony, DelMaria sat next to Analicia but did not say anything during the process. 16 Id. 17 State v. Swoopes, 223 Neb. 914, 918, 395 N.W.2d 500, 504 (1986), overruled on other grounds, State v. Jackson, 225 Neb. 843, 408 N.W.2d 720 (1987). - 928 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. FUENTES Cite as 302 Neb. 919 Analicia testified that the officer showed her the photo array and that she circled the picture of the man who touched her. Analicia also testified at trial that the man who touched her was in the courtroom at the time she was testifying, identifying Fuentes as that person. Fuentes does not make any particular argument about the makeup of the photo array. Rather, he concentrates his argument on the fact that Analicia did not receive an advisement prior to viewing the photo array and on the fact that DelMaria was present during the showing of the photo array. There are several problems with Fuentes’ contentions on appeal. First, there is no evidence regarding whether Analicia received an advisement prior to looking at the photo array presented to her. Fuentes’ trial counsel had passed away prior to the filing of the postconviction motion, but an attorney from the public defender’s office testified by deposition about Fuentes’ case file. There was no questioning about an advisement during that deposition. The office’s file was not offered as an exhibit to the deposition, nor is the police file part of the record before this court. It is not possible to know whether an advisement was actually given, because no one asked that question or offered evidence that might answer that question. Moreover, Fuentes cites to no authority requiring such an advisement; rather, he cites to a memorandum opinion of the Court of Appeals where such an advisement was given.18 In addition, a review of the entire record suggests that Fuentes was identified largely because Gabriel was aware that Fuentes had been on the scene at the relevant time and identified Fuentes by name to the investigating officer. The officer had contact with Fuentes for the first time 2 days prior to showing Analicia the photo array. In addition, another officer testified that he had contact with Fuentes at the police 18 State v. Fletcher, No. A-08-723, 2009 WL 2767720 (Neb. App. Sept. 1, 2009) (selected for posting to court website). - 929 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. FUENTES Cite as 302 Neb. 919 department on either August 23 or 24, 2012, because Fuentes had heard officers were looking for him. Finally, the issue in this case was not who touched Analicia; the issue was whether Analicia was touched. Fuentes does not deny being at the scene at the relevant time. He denied only that he touched Analicia. Fuentes has not met his burden to show that he was prejudiced by any failure of counsel to suppress the photo array when law enforcement was aware from the time of the alleged incident that it was looking for Fuentes. There is no merit to his argument. Failure to Adequately Explore Inconsistencies in Witness Testimonies. Somewhat related to Fuentes’ allegations regarding the failure to investigate other witnesses is Fuentes’ contention that his counsel was ineffective in failing to adequately crossexamine certain witnesses regarding inconsistencies in their statements at trial. In his motion, Fuentes alleges inconsistencies of several witnesses, but argues on appeal only that Analicia’s testimony was inconsistent. Specifically, Fuentes’ brief argues that Fuentes testified at his hearing that Analicia’s testimony regarding her identification of Fuentes was inconsistent. Fuentes’ argument is without merit. Fuentes does not explain how he believes Analicia’s testimony was inconsistent and does not provide any other evidence to suggest actual inconsist­ encies in her testimony. Moreover, our review of Analicia’s testimony reveals no inconsistencies of note. Analicia testified that Fuentes walked past her into the residence to visit the people who lived on the main floor of the apartment building and that about 5 minutes later, the same man left the building, touching her, as described above, on his way out. There is no real dispute that Fuentes was the man who entered and exited the home; the only dispute - 930 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. FUENTES Cite as 302 Neb. 919 is whether he touched Analicia as he left—she testified that he did, while Fuentes testified that he did not. Fuentes did not meet his burden to show that his counsel was ineffective in failing to point out inconsistencies in Analicia’s testimony, because it is not at all clear to what inconsistency Fuentes was referring and, in any case, a review of Analicia’s testimony reveals no inconsistency. This assignment of error is without merit.",analysis
+645,1253182,1,3,"¶ 26 Did the District Court err when it denied Osborne's request to exclude a material witness from the courtroom during the presentation of other testimony? ¶ 27 The record shows three separate occasions on which Osborne requested that witnesses be excluded from the courtroom. Twice the District Court ordered that all witnesses be excluded. On a third occasion, Osborne objected to Deputy Owen's continued presence in the courtroom in violation of the Court's order. The Court concluded that at this late stage there was no point to excluding Deputy Owen. ¶ 28 Rule 615, M.R.Evid., provides that [a]t the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. (Emphasis added.) The rule is not permissive; it mandates that witnesses be excluded. Prior to this Court's adoption of the Montana Rules of Evidence in 1977, the statute which provided for the exclusion of witnesses was permissive and, therefore, several of our prior decisions review the trial court's decision to exclude witnesses for an abuse of discretion. Because the current Rule 615, M.R.Evid., is not permissive, we will review a district court's application of the rule as we would a conclusion of law. We review a district court's conclusions of law for correctness. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. ¶ 29 There is an exception to Rule 615, M.R.Evid., which provides that an officer or employee of a party which is not a natural person designated as its representative by its attorney may remain. The State argues on appeal that this exception permitted Owen to remain in the courtroom; however, the County Attorney did not designate Owen as the State's representative at trial and the District Court did not recognize Owen as such a representative at any time. Moreover, Owen was called as a witness by the defense, not the State. ¶ 30 We conclude that the District Court erred when it allowed a witness to remain in the courtroom after a request from one of the parties that witnesses be excluded. However, we further conclude that the error was harmless, because Osborne failed to demonstrate that his defense was prejudiced by the error. ¶ 31 Osborne contends that he was prejudiced by being unable to effectively cross-examine Owen because Owen had the opportunity to hear the testimony of the other witnesses. Specifically, he contends that Owen had the opportunity to learn for the first time during Heen's testimony that Cassie referred to Heen, rather than Osborne, as Papa. This knowledge, Osborne argues, enabled Owen to successfully withstand cross-examination about Cassie's identification of her attacker. ¶ 32 The State contends that the error was not prejudicial because Heen testified to being called Papa prior to the point at which Osborne brought Owen's presence in the courtroom in violation of the court order, to the Court's attention. ¶ 33 Owen testified that Cassie referred to Heen as Papa, and that she used the words Papa's rubber duck. However, Owen also acknowledged that Cassie had not indicated to him that Osborne did anything to her. He further testified that Cassie told him Daddy is yucky, and that she told him that Heen had a rubber duck. From this testimony and the remainder of the record we are unable to conclude that Osborne was prejudiced by Owen's knowledge that Heen was Papa. Accordingly, we hold that Osborne was not prejudiced by the District Court's error.",issues
+646,2622875,1,5,"We affirm the judgment of the district court. Justices BURDICK, W. JONES and HORTON concur.",conclusion
+647,4167183,1,3,"¶20 The trial court followed general condemnation principles to determine the fair market value of the underground gas storage easement and the surface easement taken in this case. The court allowed both parties' experts to testify regarding their respective valuations, and the court was in the best position to evaluate the demeanor of the expert witnesses and to gauge the credibility of their testimony. We have reviewed the reports of both experts and their testimony at trial, and we conclude the trial court acted well within his discretion in allowing such evidence. ¶21 The law does not permit the court to fix speculative, boom, or fancy values on condemned property. Eichman , 1921 OK 392, ¶ 4, 202 P. at 185. Rather, the law requires a determination, based on the evidence presented, of the reasonable fair market value of the property at a price for which it could have been sold by a person desirous of selling to a person wishing to buy, with neither acting under compulsion, and both exercising intelligent judgment. Id. , ¶ 5, 202 P. at 185. After thoughtfully considering the evidence presented, the trial court found $9,000.00 to be the reasonable fair market value for the underground gas storage easement and surface easement taken on and underneath the rural Haskell County property in this case. The court's decision is entitled to the same weight and consideration that would be given to a jury's verdict, and thus, we affirm. COURT OF CIVIL APPEALS' OPINION VACATED; DECISION OF THE DISTRICT COURT AFFIRMED",conclusion
+648,2055714,1,2,"Defendant testified that after he left the Galaxy Lounge he was accosted by the bartender and owner of the tavern, who threatened him, in an effort to obtain an identification of Crenshaw and Carter. Defendant claims that the Gary police, including Officer Wallace James, interrupted this attack. Officer Millard was served with a subpoena intended for James, who failed to appear at trial. At trial, Defendant moved for a continuance and to have a bench warrant issued for Officer James, in order that his account of such attack and a following conversation between himself and Officer James might be corroborated. He contends that the absence of Officer James at trial prevented him from testifying concerning what the Officer had said to him and to others. The trial court noted that there was no proof that Officer James had ever been served with a subpoena and denied the motion. A motion for a continuance based upon non-statutory grounds may be granted in the trial court's discretion. Ind.R. Trial Procedure, TR. R. 53.4, White v. State, (1975) 263 Ind. 302, 330 N.E.2d 84, Minton v. State, (1978) 269 Ind. 39, 378 N.E.2d 639. An abuse of discretion may be demonstrated only by a showing, among other requirements, that the Defendant would be harmed by a denial of the continuance. King v. State, (1973) 260 Ind. 422, 296 N.E.2d 113. In the instant case, Defendant has failed to meet this burden. He never represented to the court what Officer James' testimony would be, if present or how his anticipated testimony would differ from his own testimony on the subject. He has not shown how he was harmed by the trial court's denial of the motion, thus we cannot say that there was an abuse of discretion.",issues
+649,2612392,2,1,"This is an election appeal by the Real Party in Interest, Terry J. Lehrling (Lehrling), from a decision of the Pima County Superior Court removing him from the Democratic primary election ballot for constable, Fifth Precinct, Pima County. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(6), and A.R.S. § 16-351(A).",jurisdiction
+650,2605818,1,4,"Inasmuch as we conclude the department acted within the authority granted it by the statutes of our state and the compact and no violation of the privileges and immunities clause has occurred, there is no need to discuss whether this court could, for the purposes of this case, have jurisdiction over the State of Oregon. The Superior Court is therefore affirmed. BRACHTENBACH, C.J., and ROSELLINI, STAFFORD, DOLLIVER, HICKS, WILLIAMS, DORE, and DIMMICK, JJ., concur.",jurisdiction
+651,2582929,1,1,"In this interlocutory appeal pursuant to C.A.R. 4.1 and section 16-12-102(2), C.R.S. (2009), the People seek reversal of a trial court ruling suppressing statements obtained during the custodial interrogation of defendant Chad Broder. The trial court ordered suppression after finding that Broder made an unambiguous response to a question of whether he wanted an attorney and that the subsequent questioning by the interrogating officer did not scrupulously honor Broder's request for counsel. Because we conclude that Broder's request for counsel was ambiguous, we hold that the interrogating officer's subsequent clarifying questions were permissible. Therefore, we reverse the trial court order suppressing Broder's statements.",introduction
+652,1347792,1,2,"[1] In Washington, CrR 3.1 sets forth the right of an indigent defendant to the assistance of counsel and authorizes payment for expert services when necessary to an adequate defense. CrR 3.1(a), (d), (f); see also State v. Mines, 35 Wn. App. 932, 935, 671 P.2d 273 (1983), review denied, 101 Wn.2d 1010 (1984). The rule provides, in part, that: (1) Counsel for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court. (2) Upon finding the services are necessary and that the defendant is financially unable to obtain them, the court ... shall authorize counsel to obtain the services on behalf of the defendant. CrR 3.1(f). Whether expert services are necessary for an indigent defendant's adequate defense lies within the sound discretion of the trial court and shall not be overturned absent a clear showing of substantial prejudice. Mines, at 935. The trial judge, here, found that the requested SSOSA evaluation was necessary both to aid her in determining Young's amenability to treatment and to allow Young to rebut an adverse inference regarding his amenability to treatment. The State does not contend that the judge abused her discretion in so finding. Rather, the State asserts, as a matter of law, that CrR 3.1(f) does not authorize the expenditure of public funds for this purpose. See Br. of Pet'r, at 8. In support of its position, the State cites State v. Hermanson, 65 Wn. App. 450, 829 P.2d 193, review denied, 120 Wn.2d 1016 (1992); State v. Melos, 42 Wn. App. 638, 713 P.2d 138, review denied, 105 Wn.2d 1021 (1986); and State v. Tuffree, 35 Wn. App. 243, 666 P.2d 912, review denied, 100 Wn.2d 1015 (1983). The general rule, stated in Melos, is that CrR 3.1(f) does not mandate appointment of an expert at public expense unless such services are necessary to an adequate defense. Melos, at 640. The defendant in that pre-SRA (Sentencing Reform Act of 1981) case requested the expenditure of funds to obtain a psychological evaluation for use at sentencing. His request was denied and he appealed, arguing that the expenditure was mandated by CrR 3.1(f). The Court of Appeals disagreed and found that the trial court had not abused its discretion in denying the request. Because the defendant had pleaded guilty, the Court of Appeals found that the trial court reasonably concluded that the evaluation was not necessary to an adequate defense. Melos, at 641. The Melos court also found the evaluation was not necessary to rebut similar, adverse evidence presented by the State and thus not mandated under the exception noted in Tuffree. Melos, at 641. In Tuffree, the Court of Appeals affirmed a trial court denial of the expenditure of public funds for a psychiatric evaluation to be used at sentencing. Tuffree, at 250. Because the defendant did not need the evaluation to rebut similar, adverse evidence presented by the State at sentencing, the court concluded that the expenditure was not mandatory and, therefore, the trial court had not abused its discretion in denying the request. Tuffree, at 249-50. Most recently, in Hermanson, the Court of Appeals considered the arguments of two defendants who asserted that CrR 3.1(f) mandated the expenditure of public funds for sexual deviancy evaluations. Hermanson, at 451. Defendant Hermanson was offered an opportunity for a reduction of charges, either in number or degree, if he obtained a favorable evaluation. The other defendant, Heath, sought the evaluation solely for use at sentencing. In resolving these cases, the court made it clear that CrR 3.1(f) does not mandate the expenditure of public funds for a sexual deviancy evaluation at public expense unless the evaluation will affect criminal liability or is necessary to rebut similar, adverse evidence presented by the State at sentencing. Hermanson, at 453. The court thus concluded that the denial of the expenditure for Hermanson amounted to an abuse of discretion since the evaluation was linked to the issue of liability. Hermanson, at 455. Conversely, the court found no abuse of discretion in the denial of Heath's requested appointment since the evaluation was solely for the purpose of sentencing. Hermanson, at 455. Contrary to the State's position, the holdings in Melos, Tuffree, and Hermanson do not deprive the trial court of authority to expend funds for psychological evaluations to be used at sentencing. The trial court's authority to approve the expenditure of public funds under CrR 3.1(f) was not argued nor decided in those cases. Rather, the conclusion reached by those courts is that CrR 3.1(f) does not mandate the expenditure of public funds for such evaluations when used solely for sentencing purposes. These decisions are in line, therefore, with the general rule that a trial court determination that expert testimony is necessary to an adequate defense will be upheld absent an abuse of discretion. As an additional basis of authority for ordering the expenditure in this case, the trial court relied on RCW 9.94A.120(7) to order an evaluation at public expense. Through that statute the Washington Legislature has authorized trial court discretion to order psychosexual evaluations to determine a defendant's eligibility for SSOSA — a special sentencing option for qualifying defendants. The Legislature developed the special sentencing provision for first-time sex offenders in an attempt to prevent future crimes and protect society. See David Boerner, Sentencing in Washington § 8.1, at 8-1 to 8-2 (1985). The statute provides in pertinent part that: When an offender is convicted of a sex offense other than a violation of RCW 9A.44.050 or a sex offense that is also a serious violent offense and has no prior convictions for a sex offense or any other felony sex offenses in this or any other state, the sentencing court, on its own motion or the motion of the state or the defendant, may order an examination to determine whether the defendant is amenable to treatment. .... The court on its own motion may order, or on a motion by the state shall order, a second examination regarding the offender's amenability to treatment. The evaluator shall be selected by the party making the motion. The defendant shall pay the cost of any second examination ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost. RCW 9.94A.120(7)(a)(i). The State points out that the statute is silent regarding payment for the initial SSOSA evaluation. In contrast, the Legislature has authorized the expenditure of public funds for second SSOSA evaluations. Br. of Pet'r, at 16-18. The State contends that this difference in the language demonstrates that the Legislature has authorized the expenditure of public funds only for the subsequent evaluation. We disagree with this construction. [2] When interpreting a statute, this court has stated that the primary objective is to carry out the intent of the Legislature. Anderson v. O'Brien, 84 Wn.2d 64, 67, 524 P.2d 390 (1974). To determine the intent, we must look first to the language of the statute itself. State v. Reding, 119 Wn.2d 685, 690, 835 P.2d 1019 (1992); Driscoll v. Bremerton, 48 Wn.2d 95, 99, 291 P.2d 642 (1955). Contrary to the State's position, the SSOSA statute does not authorize the expenditure of public funds for either the initial or the second evaluation. Rather, the statute directs that payment shall be made by the State in the second instance. In a criminal prosecution the State is, of course, the prosecutor. This assignment of payment responsibility to the State makes sense considering the language and purpose of the second SSOSA evaluation provision. In 1990, the Legislature amended RCW 9.94A.120(7) to authorize a second evaluation as a mechanism for challenging a defendant's first evaluation. Laws of 1990, ch. 3, § 705, p. 81. The amendment was related to a concern expressed by the Governor's Task Force on Community Protection, chaired by King County Prosecutor Norm Maleng, that sex offender treatment professionals were not licensed or certified and that the resulting recommendations for treatment might be made by inexperienced or untrained evaluators. Wash. State Governor's Task Force on Comm'ty Protec., Final Report IV-25 (Nov. 28, 1989). It was concluded that a second evaluation may be necessary to properly determine amenability to treatment. The amendment provides for a subsequent evaluation on the motion of the State or on the court's motion, and provides further that the moving party shall select the evaluator. RCW 9.94A.120(7)(a)(i). Since the request for a second evaluation cannot be made by the defendant, however, payment cannot be authorized pursuant to CrR 3.1(f). Thus, it makes sense that the Legislature included language specifying payment responsibility for the second evaluation. While the second evaluation is optional, an initial SSOSA evaluation is required to establish eligibility for the alternative sentencing option. Although the Legislature recognized research suggesting that early intervention may help a sex offender control his impulses, it was also aware that curing a sex offender is highly unlikely. Wash. State Governor's Task Force on Comm'ty Protec., Final Report IV-23 (Nov. 28, 1989). On this basis, the Legislature limited the SSOSA option to those defendants found to be amenable to treatment through an initial evaluation. [3-6] RCW 9.94A.120(7)(a)(i) provides the trial court with the authority to order an initial evaluation to determine whether the offender is amenable to treatment. Once ordered, there must be some correlation between the judge's ability to order the evaluation and the order being executed. It is reasonable, therefore, to conclude that the Legislature intended to confer upon trial courts not only the discretion to order the necessary evaluation but to order the expenditure of public funds when the initial evaluation is ordered for an indigent defendant. To conclude otherwise would result in effectively removing the discretion from the sentencing judge to impose the SSOSA option on all qualifying first-time sex offenders and, thereby, defeat the purpose of the statute. We will not interpret a statute so as to render any portion meaningless, superfluous or questionable. Addleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 509, 730 P.2d 1327 (1986). Before imposing the SSOSA option, the Legislature has also required that the sentencing judge determine whether the offender and the community will benefit from use of this special sexual offender sentencing alternative.... RCW 9.94A.120(7)(a)(ii). The judge cannot make this decision without first knowing whether the offender is amenable to treatment. A statute must be read as a whole giving effect to all of the language used. Alderwood Water Dist. v. Pope & Talbot, Inc., 62 Wn.2d 319, 321, 382 P.2d 639 (1963). See also State v. S.P., 110 Wn.2d 886, 890, 756 P.2d 1315 (1988). Each provision must be viewed in relation to other provisions and harmonized if at all possible to insure proper construction of every provision. Addleman, at 509. Hence, to harmonize the provisions of the SSOSA statute and insure proper statutory construction, RCW 9.94A.120(7)(a)(i) cannot be construed, as the State suggests, to deny trial court authority to order the expenditure of public funds for the first evaluation. Finally, as discussed earlier, CrR 3.1(f) authorizes the expenditure of public funds for expert services requested by an indigent defendant. State v. Dickamore, 22 Wn. App. 851, 854, 592 P.2d 681 (1979). Presumably, the Legislature did not include language in RCW 9.94A.120(7) regarding the court's authority to order the expenditure of public funds for the initial SSOSA evaluation, because it recognized that CrR 3.1(f) already provides the trial court with that authority. [2] See In re Foreclosure of Liens, 117 Wn.2d 77, 86, 811 P.2d 945 (1991) (the Legislature is presumed to know existing case law in areas in which it is legislating). Based on the foregoing, we must reject the State's proposed construction of RCW 9.94A.120(7) because it essentially repeals the provision dealing with second evaluations for indigent defendants, for as a practical matter, if funds are not available for an indigent defendant's requisite first evaluation, the need for a subsequent evaluation will never arise. Moreover, to suggest the SSOSA option is only available to those offenders who can afford the initial evaluation does not give effect to the intent of the Legislature. Nor is it reasonable to conclude that the Legislature intended to create a special sentencing provision only for sex offenders with personal means. The decision to order a SSOSA evaluation is discretionary with the trial court. We conclude that, pursuant to CrR 3.1(f) and RCW 9.94A.120(7), the decision to order the expenditure of public funds for the requisite evaluation is also within the trial court's discretion. The order of the trial court is affirmed. DURHAM, C.J., UTTER, DOLLIVER, SMITH, GUY, and JOHNSON JJ., and ANDERSEN and BRACHTENBACH, JJ. Pro Tem., concur.",analysis
+653,3153229,2,1,"The petitioner argues that the circuit court should have granted his motion for judgment of acquittal because the evidence at trial was insufficient to support the jury’s guilty verdicts. The State responds that the evidence was more than sufficient to convict the petitioner of all three charges. In addition to the general standards of review set forth above, this Court engages in the following analysis when reviewing sufficiency of the evidence claims: 10 The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry 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 proved beyond a reasonable doubt. Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Moreover, a criminal defendant takes on a difficult burden when seeking to prove such a claim: A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled. Id. at 663, 461 S.E.2d at 169, syl. pt. 3. As discussed herein, our review of the appendix record leads us to conclude there was sufficient evidence to support these convictions. Insinuating that Mr. Truax’s identification of him as the shooter was incorrect, the petitioner cites to three portions of Mr. Truax’s report to police and 911. First, Mr. Truax told police that the shooter wore blue jeans and a black hoodie, but the petitioner was 11 arrested wearing insulated coveralls over a dark t-shirt. Because the petitioner was arrested some seven hours after the crimes, leaving time for him to remove the hoodie and put on the coveralls, this attempt to suggest an improper identification fails. Moreover, the petitioner admitted to police that he was at the victims’ home and had fired his rifle, and Mr. Truax was extremely familiar with the petitioner’s appearance based upon their family relationship and the petitioner’s former residence in the Truax home. Second, the petitioner points out that Mr. Truax mistakenly reported to 911 that both his wife and his son had been shot. His teenaged son, Nicholas, arrived safely home from school a few minutes later, while Mr. Truax was still talking to the 911 operator. We fail to see how this mistake assists the petitioner’s argument in any way. The inclusion of Nicholas in the report is easily explained by the fact that Mr. Truax was anxious about his family’s safety, and his son was due home momentarily. Third, the petitioner argues that Mr. Truax reported more than two shots being fired, but only two empty shell cartridge casings were found in the victims’ yard. This argument is unpersuasive because other evidence proves that at least three shots were fired. Mrs. Truax had two separate wounds in her body, and Mr. Truax suffered a wound to the wrist. Moreover, when the police recovered the petitioner’s rifle, there was a fired cartridge casing still inside. 12 As additional grounds for challenging the sufficiency of the evidence to support his conviction, the petitioner argues that there was no gunshot residue found on his face and hands. However, the petitioner was walking outside in the rain and, as the State’s expert forensic analyst explained, gunshot residue washes away. He also complains that the State failed to provide any analyses of his laptop computer and cellular telephone, and failed to take footprint impressions or photographs of footprints at the scene of the crimes. The petitioner does not explain how these investigatory steps would have impacted the case. Next, the petitioner asserts that the State did not prove his rifle was the murder weapon and made “no effort to determine whether the shell casings found near” Mrs. Truax’s body were fired from his rifle. These contentions are belied by the record evidence. There were multiple indications that the petitioner’s rifle was the weapon used in these crimes. Fired cartridge casings found in the Truaxes’ yard are of the same caliber used by the petitioner’s rifle, and the rifle’s appearance matches the description given by Mr. Truax. The petitioner even led police to where he had dropped his rifle near the victims’ home. Additionally, a State Police Lab firearms expert determined that a bullet taken from Mrs. Truax’s body was in the .24 caliber family, which includes .243 Winchester, the type of ammunition used by the petitioner’s rifle. Because exposure to moisture had caused rust to develop inside the rifle’s chamber, the expert was unable to conclusively determine that the bullet removed from Mrs. Truax’s body was fired from the rifle. However, the expert found 13 several characteristics in common between the marks left on that bullet and on a bullet she test-fired from the petitioner’s rifle. Finally, the petitioner admitted to police that he had discharged his rifle at the Truaxes, although he claimed it was in self-defense. Lastly, the petitioner contends that the State did not explain a twenty-seven minute gap in the audio recording of his statement to police. Two police officers testified that, for unknown reasons, the digital recorder had simply stopped recording. This issue pertains to the credibility of the petitioner’s statement. The jury was made aware of the missing twenty-seven minutes and could attribute whatever weight it deemed appropriate to the petitioner’s admissions.6 The petitioner’s pre-dawn visit to the area four days before the shooting, the purchase of the rifle, and his presence in the area of the Truax home while armed with a loaded rifle, show premeditation and deliberation. His admitted anger with his aunt and uncle suggests a motive. Furthermore, he was positively identified by Mr. Truax, he admitted being in the yard and shooting his rifle at the Truaxes, and he led police to where he disposed of the rifle. Accordingly, there was no error in the circuit court’s denial of the motion for judgment of acquittal. 6 Although the petitioner moved the circuit court to suppress his entire statement, he does not raise any assignment of error on appeal regarding its admissibility. 14",sufficiency of the evidence
+654,1830613,1,12,"¶ 24. Because the licensure statutes and regulations at issue in this case are penal in nature, the Board is required to prove its case against Dr. McFadden by clear and convincing evidence, and the statutes and regulations at issue must be strictly construed in favor of Dr. McFadden. See Hogan v. Mississippi Bd. of Nursing, 457 So.2d 931, 934 (Miss.1984) The judicial eye looks to see whether a fair-minded fact finder might have found the evidence clear and convincing that the offense had occurred and where that may be said, we will not disturb the Board's judgment. Riddle v. Mississippi State Bd. of Pharmacy, 592 So.2d 37, 41 (Miss. 1991). ¶ 25. Dr. McFadden complains the Board's administrative decision was not supported by clear and convincing evidence. Dr. McFadden raises issues regarding the accuracy of Mr. Washington's affidavit, particularly the method used to calculate the dosages of controlled substances prescribed [3] , the Board's findings of fact, and the relative credibility and weight to be accorded each party's witnesses, particularly the expert witnesses. Dr. McFadden's concerns about the accuracy of Mr. Washington's affidavit will be discussed below when we address Dr. McFadden's claim that he was denied his right to due process of law. The Court will now address Dr. McFadden's concerns about the Board's findings of fact and the relative credibility and weight to be accorded the parties' witnesses. ¶ 26. Issues of fact and credibility are the primary responsibility of the trier of fact. Accordingly, this Court should not reweigh the facts nor substitute its judgment for that of the fact finder as to credibility issues. The reviewing court is only concerned with the reasonableness of the administrative order, not its correctness. Mississippi Dep't of Envtl. Quality v. Weems, 653 So.2d 266, 281 (Miss.1995). The question is simply whether substantial evidence supports the findings made by the agency. Id. ¶ 27. The Board contends more than sufficient evidence was presented to the Board to satisfy the substantial credible evidence standard by which decisions of administrative boards are reviewed in Mississippi. The Board outlines the following facts for this Court's consideration:",sufficiency of the evidence
+655,6342569,1,3,"Appellate Jurisdiction [3] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. 6 [4] The SID seeks interlocutory appellate review of an order denying a motion for summary judgment. The general rule is that an order denying summary judgment is not a final, appealable order. 7 But in 2019, in response to our opinion in E.D. v. Bellevue Pub. Sch. Dist., 8 the Legislature carved out a limited exception to this general rule and amended § 25-1902 to create a new category of final orders for purposes of appeal. 9 Under § 25-1902(1)(d), a final order now includes “[a]n order denying a motion for summary judgment when such motion is based on the assertion of sovereign immunity or the immunity of a government official.” We have issued three opinions relying on § 25-1902(1)(d) as the basis for our appellate jurisdiction: Great Northern Ins. Co. v. Transit Auth. of Omaha (Great Northern II ), 10 Mercer v. North Central Serv., 11 and Great Northern Ins. Co. v. Transit Auth. of Omaha (Great Northern I ). 12 In each case, the parties characterized the summary judgment motion at issue as being 6 Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906 (2016). 7 See, e.g., Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014). 8 E.D. v. Bellevue Pub. Sch. Dist., 299 Neb. 621, 909 N.W.2d 652 (2018) (overruling prior cases which relied on collateral order doctrine to autho­ rize interlocutory appeals from orders denying sovereign immunity). 9 See 2019 Neb. Laws, L.B. 179, § 1. 10 Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958 N.W.2d 378 (2021). 11 Mercer, supra note 4. 12 Great Northern Ins. Co. v. Transit Auth. of Omaha, 305 Neb. 609, 941 N.W.2d 497 (2020). - 132 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports CLARK v. SARGENT IRR. DIST. Cite as 311 Neb. 123 based on the assertion of sovereign immunity, and no one challenged that characterization. Consequently, we have not yet analyzed the circumstances under which a summary judgment motion will satisfy the requirements of § 25-1902(1)(d). We consider that question now as it regards “the assertion of sovereign immunity,” and we ultimately conclude that § 25-1902(1)(d) applies more narrowly than our prior opinions might suggest. [5,6] Before turning to the language of the statute, we review familiar principles of statutory construction. To discern the meaning of a statute, courts must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense; it is our duty to discover, if possible, the Legislature’s intent from the statutory text itself. 13 When the Legislature uses legal terms of art in statutes, such terms should be construed and understood according to their accepted legal meaning. 14 [7] The plain text of § 25-1902(1)(d) sets out two requirements which must be satisfied for an order to be final: (1) The order must deny a motion for summary judgment, and (2) the summary judgment motion must be based on either “the assertion of sovereign immunity” or “the immunity of a government official.” In this interlocutory appeal, there is no question the district court’s order denied the SID’s motion for summary judgment. And because no party contends the SID’s motion was based on “the immunity of a governmental official,” our appellate jurisdiction turns on whether the SID’s motion was based on “the assertion of sovereign immunity.” We limit our statutory analysis accordingly. [8,9] “Sovereign immunity” is a legal term of art referring to the common-law doctrine of sovereign immunity. Under 13 See State v. Hofmann, 310 Neb. 609, 967 N.W.2d 435 (2021). 14 See, Seivert v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021); State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 924 N.W.2d 664 (2019). - 133 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports CLARK v. SARGENT IRR. DIST. Cite as 311 Neb. 123 that doctrine, a state’s immunity from suit is recognized as a fundamental aspect of sovereignty. 15 The doctrine of sovereign immunity is, by its nature, jurisdictional. 16 [10] The sovereign immunity of the State and its political subdivisions is preserved in Neb. Const. art. V, § 22, which provides: “The state may sue and be sued, and the Legislature shall provide by law in what manner and in what courts suits shall be brought.” We have long held that this constitutional provision is not self-executing and that no suit may be maintained against the State or its political subdivisions unless the Legislature, by law, has so provided. 17 [11,12] Through enactment of the PSTCA and the State Tort Claims Act (STCA), the Legislature has allowed a limited waiver of sovereign immunity with respect to some, but not all, types of tort claims. 18 Both the STCA and the PSTCA expressly exempt certain claims from the limited waiver of sovereign immunity. 19 And because the statutory exemptions identify those tort claims for which the sovereign retains immunity from suit, we have long held that when an exemption under the STCA or the PSTCA applies, the proper remedy is to dismiss the claim for lack of subject matter jurisdiction. 20 [13] As such, we hold that when a motion for summary judgment asserts that the plaintiff’s claim falls within one or more of the statutory exemptions under the STCA or the PSTCA, the motion is based on the assertion of sovereign immunity within the meaning of § 25-1902(1)(d). 15 See, Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 (2019); State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917 N.W.2d 903 (2018). 16 Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017). 17 E.g., Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021). 18 See id. 19 See, § 13-910 (setting out claims exempt from PSTCA); Neb. Rev. Stat. § 81-8,219 (Cum. Supp. 2020) (setting out claims exempt from STCA). 20 See Edwards, supra note 17. - 134 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports CLARK v. SARGENT IRR. DIST. Cite as 311 Neb. 123 [14,15] But the doctrine of sovereign immunity is not implicated by every affirmative defense which may be available to a State or political subdivision in response to a lawsuit. An example of this can be found in the presuit claim presentment requirements under both the STCA and the PSTCA. 21 A State or political subdivision can seek dismissal of a tort action for failing to comply with these administrative requirements, 22 but as we explained in Saylor v. State, 23 the presuit claim procedures do not implicate either sovereign immunity or subject matter jurisdiction: The presuit claim procedures under the PSTCA and the STCA are not statutes in derogation of sovereign immunity, but, rather, they are administrative in nature, intended to give the government notice of a recent tort claim so [that] it can investigate and, if appropriate, resolve the claim before suit is commenced. Unlike statutes in derogation of sovereign immunity, the presuit claim procedures do not identify the particular tort claims for which the State has conditionally waived its sovereign immunity and consented to suit, nor do they identify the tort claims the State has exempted from that waiver. Instead, the presuit claim presentment requirements are procedural conditions precedent to commencing a tort action against the government in district court; they are not jurisdictional. [16] Our recent cases illustrate that while a plaintiff’s failure to comply with the presuit claim procedures may be asserted as an affirmative defense to avoid liability in an action brought under the STCA or the PSTCA, 24 the administrative 21 § 13-905 (setting out presuit claim presentment requirements under PSTCA); Neb. Rev. Stat. § 81-8,212 (Reissue 2014) (setting out presuit claim presentment requirements under STCA). 22 See, e.g., Great Northern II, supra note 10. 23 Saylor v. State, 306 Neb. 147, 162-63, 944 N.W.2d 726, 736-37 (2020). 24 See Great Northern II, supra note 10. - 135 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports CLARK v. SARGENT IRR. DIST. Cite as 311 Neb. 123 r­ equirements are not jurisdictional, 25 and thus do not bear directly on the question of sovereign immunity. 26 [17] As such, we hold that when the State or a political subdivision moves for summary judgment asserting the failure to comply with the presuit claim procedures of the STCA or the PSTCA, the motion is not “based on the assertion of sovereign immunity” for purposes of § 25-1902(1)(d). We acknowledge there is tension between this holding and our recent opinions in Great Northern I 27 and Great Northern II. 28 In Great Northern I, the city moved for summary judgment, asserting the plaintiff had not complied with the notice requirements under the PSTCA. The district court denied summary judgment, and the city appealed from that ruling, arguing that because the presuit notice requirements were not met, the city “never waived sovereign immunity.” 29 The Nebraska Court of Appeals summarily dismissed the appeal after concluding the order denying summary judgment was interlocutory and thus not a final order. We granted further review to consider the city’s contention that the recent amendments to § 25-1902 rendered the order denying summary judgment a final, appealable order. In Great Northern I, no one challenged the city’s contention that the failure to comply with the presuit notice requirements implicated sovereign immunity, and we did not examine that issue. We focused instead on the issue presented, which was whether the new final order provisions in § 25-1902(1)(d) represented a substantive or a procedural change to that statute. We concluded the statutory changes were procedural in nature, and thus governed all appeals pending on and after the effective date of the statutory amendment. Because the city had 25 Id.; Saylor, supra note 23. 26 Id. 27 Great Northern I, supra note 12. 28 Great Northern II, supra note 10. 29 Great Northern I, supra note 12, 305 Neb. at 611, 941 N.W.2d at 499. - 136 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports CLARK v. SARGENT IRR. DIST. Cite as 311 Neb. 123 filed its notice of appeal after the effective date of the statute, we concluded the new final order provisions governed the appeal; we therefore reversed the Court of Appeals’ dismissal and remanded the matter for further appellate proceedings. Once the appellate briefs were submitted, we moved the case back to our docket, resulting in our decision on the merits in Great Northern II. 30 But we did not examine, in either Great Northern I or Great Northern II, whether the city had correctly characterized its summary judgment motion as one which was based on the assertion of sovereign immunity. In retrospect, and with the benefit of our analysis in Saylor, which was decided 2 months after Great Northern I, it is apparent that despite the city’s characterization, its motion did not actually assert a claim of sovereign immunity, but, rather, asserted the affirmative defense that plaintiffs had not complied with the presuit notice procedures. Thus, to the extent either Great Northern I or Great Northern II can be read to suggest that a motion for summary judgment based on the failure to comply with the PSTCA’s presuit procedures is one “based on the assertion of sovereign immunity” for purposes of § 25-1902(1)(d), that reading is expressly disapproved. 31 [18] We now hold that to satisfy the final order requirement under § 25-1902(1)(d) based on the assertion of sovereign immunity, the motion for summary judgment must do more than merely reference sovereign immunity; the nature and substance of the motion must actually present a claim of sovereign immunity. To hold otherwise would permit litigants to create appellate jurisdiction simply by casting their claim as one implicating sovereign immunity. Applying the foregoing jurisdictional analysis to the present interlocutory appeal, we conclude that one of the SID’s 30 Great Northern II, supra note 10. 31 See Saylor, supra note 23. - 137 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports CLARK v. SARGENT IRR. DIST. Cite as 311 Neb. 123 assigned errors is reviewable under § 25-1902(1)(d), but the other is not. We have appellate jurisdiction to review the SID’s assignment that the court erred in denying summary judgment based on the applicability of the discretionary function exemption, because that aspect of the SID’s motion was based on the assertion of sovereign immunity. [19] But the SID also assigns error to the court’s refusal to grant summary judgment based on a failure to comply with the “final disposition” requirement under the PSTCA. That procedural requirement is found in § 13-906 and is one of the presuit claim procedures under the PSTCA. 32 In their appellate briefing, the parties dispute whether the SID even raised the final disposition issue before the district court. We do not address that issue, however, because even if the issue was properly presented, we would lack jurisdiction to review it under § 25-1902(1)(d). As already discussed, summary judgment motions asserting the failure to comply with the presuit claim procedures are not “based on the assertion of sovereign immunity” for purposes of § 25-1902(1)(d). While an appellate court can reverse, vacate, or modify a final order under § 25-1902(1)(d), it cannot address issues that do not bear on the correctness of the final order upon which its appellate jurisdiction is based. 33 We therefore dismiss the SID’s second assignment of error for lack of appellate jurisdiction and limit our interlocutory appellate review to a single issue: whether the district court erred in denying the SID’s summary judgment motion based on the discretionary function exemption. No Error in Denying Summary Judgment Based on Discretionary Function Exemption In connection with its summary judgment motion, the SID did not dispute that Kriss mixed or combined herbicides 32 See id. 33 State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005). - 138 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports CLARK v. SARGENT IRR. DIST. Cite as 311 Neb. 123 in a manner inconsistent with their labels. Nor did it dispute that he overapplied the off-label mixture when spraying the trees. Instead, the SID argued that Kriss “ha[d] discretion with regard to [the] use of herbicides” 34 and therefore, the discretionary function exemption barred the Clarks’ claims. [20] Under the discretionary function exemption, the PSTCA shall not apply to “[a]ny claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of the political subdivision or an employee of the political subdivision, whether or not the discretion is abused.” 35 We have explained that under this exemption, the performance or nonperformance of a discretionary function cannot be the basis of liability under the PSTCA. 36 [21] A court engages in a two-step analysis to determine whether the discretionary function exemption to the PSTCA applies. 37 First, the court must consider whether the action is a matter of choice for the acting employee. 38 We have said this inquiry is mandated by the language of the statutory exemption, because conduct cannot be discretionary unless it involves an element of judgment or choice. 39 Second, if the court concludes that the challenged conduct involved an element of judgment, it must then determine whether that judgment is 34 Brief for appellants at 14. 35 § 13-910(2). 36 See Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d 281 (1994). See, also, Holloway, supra note 5 (state actor’s performance or nonperformance of discretionary function cannot be basis for liability under STCA). 37 Mercer, supra note 4. 38 Id. 39 See Jasa, supra note 36. See, also, Berkovitz v. United States, 486 U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988) (explaining that inquiring into whether action is matter of choice for acting employee is mandated by language of exception; conduct cannot be discretionary unless it involves element of judgment or choice). - 139 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports CLARK v. SARGENT IRR. DIST. Cite as 311 Neb. 123 the kind the discretionary function exemption was designed to shield. 40 The district court in this case denied the SID’s motion for summary judgment after analyzing only the first inquiry. It concluded the SID could not show that the challenged conduct of improperly mixing and overapplying an off-label herbicide involved a matter of choice or an element of judgment on the part of Kriss. On our de novo review, we reach the same conclusion. [22] We have recognized that the discretionary function exemption will not apply when a statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because in that event, the employee has no rightful option but to adhere to the directive. 41 And if the employee’s conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exemption to protect. 42 We agree with the district court’s conclusion that § 2-2643.01 prescribes the course of conduct Kriss was required to follow when mixing and applying herbicides, and he thus had no choice or option not to adhere to that directive. The allegedly negligent conduct at issue was mixing or combining herbicides in a manner inconsistent with their labels, and then over­applying the off-label mixture. Section 2-2643.01 of Nebraska’s Pesticide Act expressly prohibits license holders like Kriss from using a pesticide “in a manner inconsistent with the pesticide’s labeling” and from operating in a “careless, or negligent manner.” The act defines “[p]esticide” to include any “substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant, including any biological 40 Mercer, supra note 4. 41 See, Jasa, supra note 36; Williams v. City of Lincoln, 27 Neb. App. 414, 932 N.W.2d 490 (2019). See, also, Berkovitz, supra note 39. 42 Berkovitz, supra note 39. - 140 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports CLARK v. SARGENT IRR. DIST. Cite as 311 Neb. 123 control agent.” 43 As such, the statutory definition of “pesticide” includes herbicides. The stated purpose of the act is “to regulate, in the public interest, the labeling, distribution, storage, transportation, use, application, and disposal of pesticides for the protection of human health and the environment.” 44 The act notes that while “pesticides are valuable to our state’s agricultural production and to the protection of humans and the environment from insects, rodents, weeds, and other forms of life which may be pests,” it is “essential to the public health and the welfare that pesticides be regulated to prevent adverse effects on humans and the environment,” including “[c]rops or other plants [that may be] injured by improper use of pesticides.” 45 Notably, the SID did not offer any regulation, policy, or ordinance purporting to give the SID or its employees discretion to mix herbicides in a manner inconsistent with the product’s labeling. But even if it had, Nebraska’s Pesticide Act expressly preempts any “ordinances and resolutions by political subdivisions that prohibit or regulate any matter relating to the . . . handling, use, application, or disposal of pesticides.” 46 The district court correctly concluded that § 2-2643.01 specifically prescribes the course of conduct to be followed by license holders like Kriss when mixing and applying herbicides, and as a result, Kriss had no choice but to adhere to that course of conduct. Because Kriss had no discretion to exercise with regard to the challenged conduct, the first inquiry of the discretionary function test could not be satisfied and the district court correctly denied summary judgment. In its appellate brief, the SID generally acknowledges that the Pesticide Act regulates the handling, use, and application of pesticides and that it prohibits license holders like Kriss 43 § 2-2624. 44 § 2-2623. 45 Id. 46 § 2-2625. - 141 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports CLARK v. SARGENT IRR. DIST. Cite as 311 Neb. 123 from using a pesticide in a manner inconsistent with its labeling. But the SID contends that the regulatory provisions of the Pesticide Act “are not relevant [to the discretionary function inquiry] unless they create private civil tort liability when they are violated.” 47 This contention is meritless. The principles of law governing whether a statute creates a private right of action have no direct bearing on whether the statute prescribes a course of conduct for purposes of the discretionary function inquiry. Appellate courts in this state have consistently looked to policy and procedure manuals, 48 municipal ordinances, 49 and statutes 50 when deciding whether an actor’s conduct was a matter of choice for purposes of the discretionary function exemption. In none of those cases did it matter whether the ordinance or statute was also recognized as creating a private right of action. Because the provisions of Nebraska’s Pesticide Act governed Kriss’ conduct in mixing, using, and applying the herbicide mixture, those provisions are relevant to the discretionary function exemption inquiry, regardless of whether the act creates a private right of action. On this record, the district court correctly concluded that the SID did not, and cannot, satisfy the first inquiry under the 47 Brief for appellants at 16. 48 See, e.g., Mercer, supra note 4 (considering utility district’s procedures and manuals in determining whether challenged conduct involved matter of judgment for purposes of discretionary function exemption to PSTCA). 49 See, e.g., Williams, supra note 41 (considering municipal code and other municipal provisions to determine whether challenged conduct involved element of choice for purposes of discretionary function exemption to PSTCA). 50 See, e.g., Holloway, supra note 5 (analyzing statute contained in Nebraska Mental Health Commitment Act to determine whether challenged conduct involved an element of choice under discretionary function exemption to STCA); Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015) (considering pertinent traffic statute to determine whether challenged conduct involved matter of discretion). - 142 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports CLARK v. SARGENT IRR. DIST. Cite as 311 Neb. 123 discretionary function exemption. The SID’s motion for summary judgment based on the discretionary function exemption was properly denied.",analysis
+656,1637866,1,1,"This is an appeal from an opinion of the Court of Appeals affirming the decision of the Boone Circuit Court dismissing Appellant's complaint against the City of Florence on the grounds that she did not comply with KRS 411.110 by failing to provide the city with the correct date of her injury. For reasons that Appellant, Evelyn Denton, did comply with KRS 411.110's notice requirements by stating that her accident occurred on or about January 18, 2006, we hold that the trial court improperly dismissed her claim. We, therefore, reverse the decisions of the Court of Appeals and the Boone Circuit Court and remand this matter to the trial court for further proceedings consistent with this opinion.",introduction
+657,2629922,1,1,"[¶ 2] The three parties each state the issues differently. D & D phrases the issue as: Did the court err in granting the motions for summary judgment of Basin Western, Inc., and Interline Energy Services, Inc., as to consequential economic damages sustained by the plaintiff? Interline states the issues as: 1. Is Tolar v. [ Amax ] Coal Co., 862 P.2d 144 (Wyo.1993) the controlling precedent in Wyoming which allows D & D to maintain its tort action for consequential economic damages it claims to have suffered [?] 2. Did Interline owe D & D a duty to protect its economic interests by keeping its Plant in operation [?] Lastly, Basin Western asserts the following issues: A. Did the court err when it granted summary judgment for economic damages that had no relation to the property loss sustained by D & D? B. Can a business (D & D) claim damages for prospective lost profits and/or loss of business value for inconvenience to its operations allegedly caused by injury to a third party's property? C. Did Interline or Basin Western owe a legal duty to D & D not to damage the Well Draw Gas Plant? D. Did D & D present competent evidence to support its claim of economic loss?",issues
+658,6335704,1,1,"This case presents an appeal from the denial of a petition to set aside a conviction pursuant to Neb. Rev. Stat. § 29-2264 (Cum. Supp. 2020). The petitioner, with the assistance of a publicly funded pro bono program at the University of Nebraska College of Law, has been pursuing set asides of several eligible convictions. All preceding petitions had been successful, and the State supported the present set aside request. The district court expressed concern at the hearing regarding a recent weapons conviction. It also voiced certain misunderstandings, corrected by the State, about the effects of - 370 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRUNSEN Cite as 311 Neb. 368 setting aside convictions and whether other judges had fully reviewed the petitioner’s criminal record. The court hypothesized that as a result of the petitioner’s crimes being set aside, he could, ultimately, commit a future act of domestic terrorism and the media would direct blame upon the courts for having simply “signed off” on the process. The court also questioned whether the petitioner’s representation by a publicly funded educational program was a good use of taxpayer money. The petitioner asserts the court’s ruling was based upon untenable and unreasonable reasoning and impermissible bias and, thus, was an abuse of discretion.",introduction
+659,2518289,1,3,"¶ 12 A juvenile court's decision to bind over a criminal defendant for trial presents a mixed question of law and fact and requires the application of the appropriate bindover standard to the underlying factual findings. [7] As a result, in reviewing a ... bindover decision, an appellate court should afford the decision limited deference. [8]",standard of review
+660,2242294,1,2,"The defendant raises several challenges to the propriety of his remand for a new sentencing hearing. However, our review of this matter has been affected by the governor's actions. Although we issued a written decision in this case on October 18, 2002, in which we vacated defendant's death sentence, as noted, the State moved on November 8, 2002, for a stay of our mandate pending the filing of certiorari proceedings in the United States Supreme Court. We allowed the motion on November 19, 2002. [1] In addition, defendant's filing of his petition for rehearing in November 2002 prevented our decision from being considered final. See PSL Realty Co. v. Granite Investment Co., 86 Ill.2d 291, 56 Ill.Dec. 368, 427 N.E.2d 563(1981); Glasser v. Essaness Theatres Corp., 346 Ill.App. 72, 104 N.E.2d 510 (1952); Berg v. Allied Securities, 193 Ill.2d 186, 191-92, 249 Ill.Dec. 770, 737 N.E.2d 160 (2000) (Freeman, J., specially concurring) (noting that when a petition for rehearing is filed, the judgment of the reviewing court does not become final until the petition is denied). Thus, once defendant filed a petition for rehearing in this case, the original October 18, 2002, decision was not a final one and was subject to modification. In light of the foregoing, on January 10, 2003, the date of the Governor's commutation action, defendant remained under an existing sentence of death. An appellate issue is moot when it is abstract or presents no controversy. People v. Blaylock, 202 Ill.2d 319, 325, 269 Ill.Dec. 490, 781 N.E.2d 287 (2002). An issue can become moot if circumstances change during the pendency of an appeal that prevent the reviewing court from being able to render effectual relief. People v. Jackson, 199 Ill.2d 286, 294, 263 Ill.Dec. 819, 769 N.E.2d 21 (2002). In the case at bar, defendant raises issues dealing solely with his death sentence. As we have explained, subsequently to the filing of his petition for rehearing and the State's commencement of certiorari proceedings, the governor commuted defendant's death sentence to natural life imprisonment without the possibility of parole. Commutation removes the judicially imposed sentence and replaces it with a lesser executively imposed sentence. People ex rel. Johnson v. Murphy, 257 Ill. 564, 566, 100 N.E. 980 (1913); Black's Law Dictionary 274 (7th ed.1999). Thus, the commutation rendered the sentencing issues raised by defendant in this appeal moot. See, e.g., Lewis v. Commonwealth, 218 Va. 31, 38, 235 S.E.2d 320, 325 (1977); State v. Mitchell, 239 Or. 87, 88, 396 P.2d 572, 573 (1964). We therefore must dismiss the appeal as moot.",analysis
+661,1560524,1,2,"We first consider whether we have jurisdiction to decide this case. Because this is an interlocutory appeal from the denial of a plea to the jurisdiction and there was no dissent in the court of appeals, we have jurisdiction only if we determine that the court of appeals held differently from a prior decision of another court of appeals or of this Court on a question of law material to the decision of the case. See TEX. GOV'T CODE §§ 22.001(a)(2), 22.225(c); Coastal Corp. v. Garza, 979 S.W.2d 318, 319 (Tex.1998). Such conflicts jurisdiction exists when one case `would operate to overrule the other in case they were both rendered by the same court.' Coastal Corp., 979 S.W.2d at 319-20 (quoting Christy v. Williams, 156 Tex. 555, 298 S.W.2d 565, 568-69 (1957)). In other words, it must appear that the decisions in the two cases are  so far upon the same state of facts that they would control one another. Id. at 320 (emphasis in original). The TNRCC argues that we have conflicts jurisdiction because the court of appeals' opinion conflicts with the Fourth Court of Appeals' opinion in Schaefer v. City of San Antonio, 838 S.W.2d 688 (Tex. App.-San Antonio 1992, no writ). In Schaefer, the court of appeals held that a stationary electric motor-driven pump was not motor-driven equipment under the Tort Claims Act. Id. at 693. White counters that no conflict exists because the court of appeals' conclusion that such a pump was not motor-driven equipment is not a holding but merely dicta. Noting that the scope of motor-driven equipment must be understood to be fairly broad, the court of appeals in this case concluded that, in alleging injury caused by a stationary electric motor-driven pump, White ... alleged sufficient facts to establish that TNRCC's pump was `motor-driven equipment' as that term is used in the act. 13 S.W.3d. at 825-26. [1] By contrast, Schaefer holds: Because the status of stationary electric motor-driven pumps as `motor-driven equipment' is questionable at best, we conclude that the City Water Board's sovereign immunity has not been clearly and explicitly waived. Therefore, we conclude that the water pump in question is not `motor-driven equipment' for purposes of the Act. Schaefer, 838 S.W.2d at 693. Despite White's argument otherwise, this language is part of Schaefer's holding, not dicta. Schaefer sued the San Antonio Waterworks Board for property damage from a broken water line near his property. Id. at 689. He argued that the City had waived sovereign immunity under section 101.021(1)(A), the provision at issue in this case. Among other claims, he asserted that the City's use of motor-driven pumps to drive water through its water lines caused the water to shoot out of the broken line and onto his property. The Schaefer court made two holdings: (1) the city was not operating or using the water pump and (2) the pump was not motor-driven equipment. Id. at 693. Certainly, the court could have relied on either determination to reach its ultimate conclusion that sovereign immunity had not been waived. But it relied on both. Because of the factual similarities between Schaefer and this case, and the divergence between the two cases' holdings, we conclude that one decision would operate to overrule the other. Coastal Corp., 979 S.W.2d at 319-20. We therefore have jurisdiction, and we now address the merits of this case.",jurisdiction
+662,4255309,1,1,"Mark A. Onstot appeals, and Maria D. Onstot cross- appeals, from the decree of dissolution entered by the district court for Sarpy County, which dissolved the parties’ marriage, divided their assets and debts, and awarded spousal support for Maria. For the reasons set forth below, we affirm - 899 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports ONSTOT v. ONSTOT Cite as 298 Neb. 897 the district court’s decree in part, as modified herein, and in part vacate.",introduction
+663,2586444,1,3,"
+Under the Full Faith and Credit Clause of the United States Constitution, Colorado courts have always enforced judgments rendered in foreign jurisdictions subject to our courts' satisfaction that the judgments were duly rendered. However, before the enactment of the Uniform Act in 1969, the only method available to foreign judgment creditors seeking to enforce foreign judgments in Colorado was to commence a civil action by filing a complaint in a Colorado court asserting the existence, details, and enforceability of the foreign judgment. Hunter Technology, Inc. v. Scott, 701 P.2d 645 (Colo.App. 1985). The civil action was then subject to the same procedural requirements as all civil actions in the state of Colorado. Id. However, in 1969, Colorado promulgated the Uniform Act in order to streamline the process by which foreign judgments could be enforced in Colorado. Griggs v. Gibson, 754 P.2d 783, 784 (Colo.App.1988). The Uniform Act does not supplant the common law means of enforcing foreign judgments through the initiation of a civil action. A judgment creditor may still enforce a foreign judgment in Colorado by initiating a civil action in this state and requesting the court to enter the foreign judgment in Colorado. § 13-53-107. However, the Uniform Act provides an alternative, simplified method for domesticating foreign judgments in Colorado. Under the Uniform Act, a judgment creditor can file a properly authenticated foreign judgment with the office of the clerk of any court of this state which would have had jurisdiction over the original action had it been commenced in this state. § 13-53-103. Once the foreign judgment has been properly filed, a transcript of judgment record issues and the judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of the court of this state in which filed and may be enforced or satisfied in like manner. Id.
+In order to obtain a judgment lien on property located in Colorado, a creditor in possession of a valid judgment obtained in any court of record in this state ... or a foreign judgment [ ] filed with the clerk of any court of this state in accordance with the provisions of the `Uniform Enforcement of Foreign Judgments Act' files a transcript of the judgment record, certified by the clerk of such court in any county in which the property is located. § 13-52-102(1). After the transcript of judgment record is filed with the county clerk and recorder, the judgment becomes a lien upon all the real estate... in the county where such transcript of judgment is recorded, owned by such judgment debtor or which such judgment debtor may afterwards acquire in such county. Id. While judgments in Colorado last for twenty years, judgment liens expire six years after entry of judgment. Id.; C.R.C.P. 54. In the case of judgment liens based on foreign judgments domesticated in Colorado under the Uniform Act, the six-year period begins to run from the date the foreign court entered the original judgment. Baum v. Baum, 820 P.2d 1122, 1123 (Colo.App.1991). However, judgment liens can be extended if, prior to the expiration of [the original six-year period], such judgment is revived as provided by law and a transcript of the judgment record of such revived judgment, certified by the clerk of the court in which such revived judgment was entered, is recorded in the same county in which the transcript of the original judgment was recorded. § 13-52-102(1).
+At issue in the present case is the meaning of section 13-52-102(1)'s language stating that judgment liens can be extended if the underlying judgment is revived as provided by law.... Statutory interpretation is a question of law subject to de novo review. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006). A reviewing court begins the analysis with the plain language of the statute. If the statute is clear and unambiguous on its face, then the court need look no further. People v. Luther, 58 P.3d 1013, 1015 (Colo.2002). Petitioners argue that, in the context of foreign judgments domesticated in Colorado, reviving a judgment as provided by law requires a judgment creditor to revive the underlying judgment in the foreign court that originally issued the judgment and then file evidence of that revival with the clerk and recorder in the county where the judgment lien was originally filed. Therefore, Petitioners argue that they complied with section 13-52-102(1)'s judgment lien extension requirements when they revived the underlying judgment in the Maricopa County Superior Court in Arizona and filed the judgment renewal affidavit with the Rio Grande County clerk and recorder. The Kopfman Respondents disagree, and argue that the court of appeals was correct in holding that, in order to extend a judgment lien predicated upon a domesticated out-of-state judgment, the judgment creditor must first revive the domesticated judgment pursuant to C.R.C.P. 54(h) and then, pursuant to section 13-52-102(1), file a transcript of the judgment record of the revived judgment in the same county in which the transcript of the original judgment record was recorded. Therefore, they argue that Petitioners failed to properly extend the judgment lien because they did not revive the domesticated judgment pursuant to C.R.C.P. 54(h) or file a transcript of the revived judgment with the Rio Grande County clerk and recorder. Respondents also dispute Petitioners' assertion that filing the Arizona judgment renewal affidavit complied with section 13-52-102(1)'s requirement that judgment creditors file a transcript of the judgment record of such revived judgment, certified by the clerk of the court in which such revived judgment was entered, with the county clerk and recorder in the county where the original judgment was recorded. We agree with the Kopfman Respondents and hold that, in order to extend a judgment lien predicated upon a domesticated foreign judgment, a judgment creditor must revive the domesticated judgment pursuant to C.R.C.P. 54(h) and then file a transcript of the revived judgment record, certified by the clerk of the Colorado court where the judgment was domesticated, in the clerk and recorder's office where the original judgment lien was recorded. Therefore, we conclude that section 13-52-102(1)'s statement that, in order to extend a judgment lien, the judgment must be revived as provided by law is a reference to C.R.C.P. 54(h) and does not, in the context of domesticated judgments, refer to reviving the judgment in the foreign jurisdiction. Consistent with this holding, we find that section 13-52-102(1)'s statement that a judgment creditor must file a transcript of the judgment record of such revived judgment, certified by the clerk of the court in which such revived judgment was entered, cannot be satisfied by filing some evidence of revival of the foreign judgment. To allow parties to extend judgment liens in such a manner would be contrary to the plain language of the statute and inject uncertainty into Colorado real property records.
+C.R.C.P. 54(h) provides the procedures with which judgment creditors must comply in order to revive judgments. It states that, to revive a judgment, a judgment creditor must file a motion alleging the date of the original judgment and the amount of the original judgment that remains unsatisfied. Id. The debtor then has ten days to show cause why the judgment should not be revived. Id. If the debtor answers, any issues are to be resolved by the trial court. Id. A revived judgment must be entered within twenty years after the entry of the judgment which it revives, and may be enforced and made a lien in the same manner and for like period as the original judgment. Id. If a judgment is revived before the expiration of a judgment lien created by the original judgment, the filing of the transcript of the entry of revivor in the register of actions with the clerk and recorder of the appropriate county before the expiration of such lien shall continue that lien for the same period from the entry of the revived judgment as is provided for original judgments. Id. By its terms, the Uniform Act applies Colorado judgment procedures to foreign judgments filed in the state. Section 13-53-103 states that a foreign judgment filed in Colorado has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a Colorado court, and may be enforced or satisfied in like manner. As pertinent to the present case, foreign judgments domesticated in Colorado are (1) subject to the same procedures as judgments originating from Colorado courts; and (2) subject to the same proceedings ... for reopening as judgments of Colorado courts. Black's Law Dictionary defines the word procedure expansively to mean a specific method or course of action and the judicial rule or manner for carrying on a civil lawsuit or a criminal prosecution. Black's Law Dictionary 1221 (7th ed. 1999). Generally, a court's procedures define the parameters of the proceedings and the manner and means by which parties must comply in order to prosecute or defend against a suit. See Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Accordingly, a literal reading of section 13-53-103's statement that judgments domesticated under the Uniform Act are subject to the same procedures as judgments originally entered by Colorado courts suggests that all rules related to the manner and means by which courts of this state conduct proceedings related to the entry of judgments apply to judgments domesticated under the Uniform Act. The provision of section 13-53-103 stating that judgments domesticated in Colorado are subject to the same proceedings ... for reopening as judgments originating from Colorado courts is yet more specific to the issue of revival. Black's Law Dictionary defines the word revive to mean restoration to current use or operation; especially the act of restoring the validity or legal force of a ... dormant judgment. Black's Law Dictionary 1321 (7th ed.1999). Black's Law Dictionary does not define the term reopen; however, New Webster's Dictionary defines the term to mean to open again and to revive. New Webster's Dictionary 844 (1st ed. 1992). Courts have used the terms synonymously. See, e.g., O'Neill v. Simpson, 958 P.2d 1121 (Colo.1998); Tietsworth v. Harley-Davidson, Inc., 303 Wis.2d 94, 735 N.W.2d 418 (2007). Under section 13-52-102(1), in order to extend a judgment lien, creditors must revive the judgment as provided by law. C.R.C.P. 54(h) provides the procedures for reviving a judgment. Therefore, in order to extend a judgment lien predicated upon a judgment originally issued by a Colorado court, creditors must revive the judgment under C.R.C.P. 54(h) and then comply with the lien extension requirements of section 13-52-102(1). Because a foreign judgment domesticated in Colorado is subject to the same proceedings for ... reopening as a judgment originating from a Colorado court, in order to extend a judgment lien predicated upon a domesticated foreign judgment, the creditor must comply with the same revival requirements as he would had the judgment originated from a Colorado court. Therefore, in the context of foreign judgments domesticated in Colorado, section 13-52-102(1)'s requirement that the underlying judgment must be revived as provided by law means the same thing as it does in the context of judgments originating from Colorado courts. However, one additional step must be performed that is not required for judgment liens predicated on judgments originating from Colorado courts—the original foreign judgment must be revived in the jurisdiction that originally issued the judgment. In Baum v. Baum, 820 P.2d at 1123, the court of appeals held that, in the context of domesticated foreign judgments, the six-year judgment lien period begins to run from the date the foreign court issued the original judgment. [3] Therefore, although neither section 13-52-102(1) nor any provision of the Uniform Act specifically requires revival of the foreign judgment in the foreign jurisdiction, because of Baum's holding that the timing of the judgment lien period is based on the underlying foreign judgment, a creditor seeking to revive a Colorado judgment lien predicated upon a foreign judgment domesticated in Colorado must first revive the underlying foreign judgment in the foreign jurisdiction. Consequently, in order to revive a foreign judgment domesticated in Colorado as provided by law, the foreign judgment must first be revived in the jurisdiction that originally issued the judgment. Then, the domesticated foreign judgment must be revived in Colorado pursuant to C.R.C.P. 54(h). Once the foreign judgment is so revived, the creditor must comply with the remainder of section 13-52-102(1) by filing a transcript of the judgment record of such revived judgment in the same county in which the transcript of the original judgment was recorded. In sum, when section 13-53-103 is read in light of section 13-52-102 and C.R.C.P. 54(h), the plain language of the statute requires that a creditor seeking to extend a judgment lien based upon a domesticated foreign judgment must comply with C.R.C.P. 54(h) by reviving the domesticated foreign judgment in Colorado and then filing a transcript of the revived judgment record in the same county where lien was originally filed.
+Petitioners argue that, under Baum v. Baum, 820 P.2d 1122, foreign judgments domesticated in Colorado are not judgments of Colorado courts within the meaning of section 13-52-102. Relying on Baum's holding, Petitioners argue that the filing of the foreign judgment in Colorado is simply recognition by Colorado courts of the foreign judgment. Therefore, Petitioners state that, under the Uniform Act, only one judgment exists—that is, the only judgment is the foreign judgment which has been recognized by the courts of this state. Consequently, Petitioners conclude that section 13-52-102's reference to the judgment is a reference to the underlying foreign judgment, not the domesticated Colorado court judgment. However, as discussed above, this assertion is belied by the plain language of the Uniform Act. Additionally, Petitioners misconstrue the import of Baum's statement that the six-year judgment lien period begins to run from the date of entry of the foreign judgment. The simple fact that the six-year judgment lien period runs from the date of entry of the foreign judgment does not mean that creditors are not required to revive the domesticated judgment in Colorado courts in order extend a judgment lien predicated upon the domesticated judgment. Instead, Baum's holding was a reflection of the policy concern that allowing foreign judgment holders' judgment liens to accrue from the date the judgment was domesticated in Colorado would allow such judgment creditors to create a longer judgment lien on a foreign judgment than on a judgment originally entered in Colorado. Id. Accordingly, the Baum court was concerned with ensuring that foreign judgment holders would not gain procedural advantages unavailable to domestic judgment holders. This concern underscores the purpose of the Uniform Act, which is to simplify and standardize the enforcement of foreign judgments domesticated in Colorado. Rather than standardizing judgment enforcement procedures in Colorado, Petitioners' reading of section 13-52-102(1) would result in different procedures being applied to revival of judgments and judgment liens depending upon whether the judgment originated from a Colorado court or was domesticated in Colorado courts pursuant to the Uniform Act. Consequently, under Petitioners' reading of section 13-52-102(1), the phrase revived as provided by law would have two different meanings. In the context of a creditor seeking to extend a lien predicated upon a judgment originating from a Colorado court, it would refer to C.R.C.P. 54(h). However, in the context of a creditor seeking to extend a lien predicated upon a foreign judgment domesticated in Colorado, it would refer to revival in the jurisdiction that originally issued the judgment. Such a result could not have been intended by the General Assembly when it stated that a judgment domesticated under the Uniform Act has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a Colorado court. See § 13-53-103.
+Petitioners argue that, in the context of foreign judgments domesticated in Colorado, section 13-52-102(1)'s requirement that, to revive a judgment lien, the judgment creditor must file a transcript of judgment record should be read to mean that, once the underlying foreign judgment is revived, some evidence of the revived foreign judgment must be filed in the county clerk and recorders' office. Arizona does not issue transcripts of judgment records; instead, it recognizes judgment renewal affidavits as evidence of revived judgments. Consequently, Petitioners argue that, under their reading of the statute, they could not file a transcript of judgment record, but instead filed its Arizona equivalent—an endorsed judgment renewal affidavit. Accordingly, Petitioners assert that they complied with section 13-52-102(1) by filing a document that evidenced the renewal of the Arizona judgment. We reject Petitioners' interpretation of section 13-52-102(1)'s transcript of judgment record requirement. C.R.C.P. 79(d) requires the clerk of every court to keep a judgment record of all judgments entered by the court. When parties seek evidence of the judgment entered by the court, they obtain transcripts of the judgment record maintained by the clerk of court. Therefore, a judgment record is a specific record used by courts of this state to track all judgments entered by the court—including new judgments, revived judgments, and foreign judgments domesticated under the Uniform Act. If the General Assembly intended judgment creditors seeking to extend judgment liens predicated upon domesticated foreign judgments to revive the foreign judgment and then file some evidence of the revived foreign judgment, it would not have employed language in section 13-52-102(1) requiring the judgment creditor to file a document issued by Colorado courts. If such a result was intended, the General Assembly could easily have selected language to effectuate this purpose. Instead, section 13-52-102(1), which specifically references judgments obtained in accordance with the provisions of the `Uniform Enforcement of Foreign Judgments Act,' states that, to extend a judgment lien, the judgment creditor must file a transcript of the judgment record of such revived judgment. Therefore, not only is Petitioners' argument that the Arizona judgment renewal affidavit satisfied the transcript of judgment record requirement belied by the plain language of section 13-52-102(1), that section's reference to a document issued by Colorado courts suggests that section 13-52-102(1) cannot be read as urged by Petitioners. Instead, section 13-52-102(1)'s reference to a transcript of judgment record suggests that, in order to extend a judgment lien, judgment creditors must revive the judgment in Colorado in order to obtain a transcript of the judgment record, and then file that document in office of the county clerk and recorder.
+Petitioners argue that, even if section 13-52-102(1) requires judgment creditors to revive foreign judgments in Colorado pursuant to C.R.C.P. 54(h), this court should reverse the court of appeals and hold that Petitioners substantially complied with section 13-52-102 for judgment lien extension purposes. We decline to do so. Petitioners' failure to revive the domesticated foreign judgment as required by C.R.C.P. 54(h) and file a Colorado transcript of judgment record was not merely a failure to follow the form required by Colorado statutory law. Rather, it constituted a wholesale failure to comply with substantial requirements of the law. As discussed above, section 13-52-102(1) requires judgment creditors seeking to extend judgment liens predicated upon domesticated foreign judgments to revive their judgments in Colorado pursuant to C.R.C.P. 54(h). Important considerations related to consistency of real property records and regularity of procedure support such a requirement. The substantial compliance standard urged by Petitioners would result in uncertainty in the real property records. Under section 13-52-102(1), the world is provided notice of a judgment lien when a transcript of judgment record is filed in the real property records of the county where the debtors' property is located. Therefore, the filing of a transcript of judgment record is an act recognized by law as establishing a lien on property and alerting the public at large to the fact that a lien exists on the subject property. Requiring all judgment creditors to file the same document provides continuity and—while some independent investigation may need to be undertaken to establish the validity of the judgment—parties who discover such a document while searching the records of a given piece of property immediately know that a judgment lien exists. Were we to adopt the substantial compliance standard as urged by Petitioners, parties could file any manner of document issued by a foreign jurisdiction in place of the uniformly accepted transcript of judgment record. Under such a scheme, as pointed out by the court of appeals, those searching Colorado real property records would have to be familiar with the legal nuances and effect of varying procedures in all fifty states. While the Arizona judgment renewal affidavit provided much of the same, if not more, information than would have been contained in a Colorado transcript of judgment record, it did not provide the notice required by section 13-52-102(1) —that is, that a judgment enforceable in Colorado exists and encumbers the property. Accordingly, we decline to extend the substantial compliance standard urged by Petitioners to section 13-52-102(1)'s lien extension requirements.",analysis
+664,6107835,1,3,"
+
+McFadin relies on Los Campeones, Inc. v. Valley International Properties, Inc. , in asserting that the trial court lacked jurisdiction to order him to pay under the bond. Los Campeones, Inc. v. Valley Int'l Prop., Inc. , 591 S.W.2d 312 (Tex. Civ. App.-Corpus Christi 1979, no writ). There, the appeals court determined that the trial court's order requiring the return of a cash supersedeas bond when the original judgment did not involve a monetary award went beyond the appellate court's mandate, and thus beyond the ministerial authority vested in the trial court to give effect to the appellate court's judgment. Id. at 313 . Los Campeones does not accord with the decisions of this Court and other courts of appeals. We explained in Dubai Petroleum Co. v. Kazi that [t]he modern direction of policy is to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction. Dubai Petroleum Co. v. Kazi , 12 S.W.3d 71 , 76 (Tex. 2000) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 11 ( AM. LAW INST. 1982) ). And although we have held that trial courts erred in the manner by which they enforced appellate court mandates, we have not indicated that those erroneous actions implicated their jurisdiction. See, e.g. Tex. Workers' Comp. Ins. Fund v. Mandlbauer , 34 S.W.3d 909 , 912 (Tex. 2000) (concluding that the court of appeals did not have discretion to assess costs contrary to this Court's earlier mandate); Cook v. Cameron , 733 S.W.2d 137 , 139 (Tex. 1987) (holding that the trial court erred in not enforcing [this Court's] judgment as rendered). A court's subject matter jurisdiction depends on the nature of the matter before it. And although a trial court abuses its discretion if it fails to properly enforce the mandate of an appellate court, it is not a matter of jurisdiction. Madeksho v. Abraham, Watkins, Nichols & Friend , 112 S.W.3d 679 , 685-86 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). The trial court's addressing of issues necessary to effect the mandate of the court of appeals, including issuing an order concerning the supersedeas bond, was part and parcel to the trial court's effectuating the original judgment and carrying out the appellate court's decision. It had jurisdiction to do so. That conclusion brings us to McFadin's contention that the court of appeals had jurisdiction over his appeal.
+Unless specifically authorized by statute, Texas appellate courts have jurisdiction only to review final judgments. 3 TEX. CIV. PRAC. & REM. CODE § 51.014 ; see Stary v. DeBord , 967 S.W.2d 352 , 352-53 (Tex. 1998). A judgment is final for purposes of appeal if it disposes of all pending parties and claims. Lehmann v. Har-Con Corp. , 39 S.W.3d 191 , 195 (Tex. 2001). Although language like a Mother Hubbard clause indicates that the trial court intended a judgment to be final and appealable, no particular title, form, or language is required to make a judgment final. Id. Rather, whether it is final depends on both the language in it and the record. Id. If a judgment disposes of every remaining issue in a case, it does not lack finality for purposes of appeal merely because  it recites that it is partial, refers to only some of the parties or claims, or lacks Mother Hubbard language. Id. at 200 . On the other hand, when a final judgment exists, a subsequent order that has no effect except to enforce provisions of the judgment does not qualify as another final judgment subject to appeal. Wagner v. Warnasch , 156 Tex. 334 , 295 S.W.2d 890 , 893 (1956). An order to pay the amount of a money judgment out of funds deposited to function as a supersedeas bond has been described as interlocutory and nonappealable because ordering payment from the bond is consistent with and does not work a material change in the adjudicative portions of the original judgment; it merely effectuates the judgment. See 4 TEX. JUR. 3D Appellate Review § 71 (2018) ; see also Myers v. Myers , 515 S.W.2d 334 , 335 (Tex. Civ. App.-Houston [1st Dist.] 1974, writ dism'd) (The court's order to pay the judgment out of funds deposited pursuant to a supersedeas bond was ancillary to the cause on the merits. It was not a final judgment for purposes of appeal.). But if a post judgment order imposes obligations in addition to or in excess of those in the judgment, an appeal from the post judgment order is permissible, provided the order disposes of all pending issues and parties. See Allen v. Allen , 717 S.W.2d 311 , 312 (Tex. 1986) ; Reynolds v. Reynolds , 860 S.W.2d 568 , 570 (Tex. App.-Dallas 1993, writ denied). Coffeehouse cites Jack M. Sanders Family Ltd. Partnership v. Roger T. Fridholm Revocable, Living Trust as support for its argument that the payment order was not a final order so as to be appealable and that relief for McFadin is only attainable via mandamus. Jack M. Sanders Family Ltd. P'ship v. Roger T. Fridholm Revocable, Living Tr. , 434 S.W.3d 236 , 239 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (For anything other than what could properly be characterized as a final judgment, mandamus is the proper form to obtain review of a trial court's post-judgment orders.) (quoting Transam.Life Ins. Co. v. Rapid Settlements, Inc. , No. 01-11-00240-CV, 2011 WL 5428974 , at  (Tex. App.-Houston [1st Dist.] Nov. 10, 2011, no pet.) ). We do not disagree with the general proposition that a non-final order or judgment, under appropriate circumstances, is challengeable by mandamus. But we disagree with Coffeehouse's position that the order directing McFadin to pay under these circumstances is not a final, and therefore appealable, order. As a result of the hearing on Coffeehouse's post judgment motions, the trial court appointed a receiver to sell the property as was required by the 2014 judgment; ordered payment of the same amount of attorney's fees as were awarded in the judgment; and ordered the full amount of the supersedeas bond paid to Coffeehouse and the Trust. But the 2014 judgment did not require McFadin to pay any amount of money to Coffeehouse and the Trust beyond attorney's fees and interest, which Coffeehouse does not contend would have been payable under terms of the supersedeas bond. 4 Thus, the order requiring McFadin to pay the amount of the bond went beyond the provisions of the 2014 judgment and afforded Coffeehouse recovery in addition to that in the judgment rather than merely requiring compliance with the judgment's terms. And, Coffeehouse does not contend that  any matters remained to be decided after that hearing and the trial court's orders pursuant to it. The effect of the payment order was to make McFadin liable for monetary obligations that he was not liable for under the judgment. As noted, the judgment provided for the property to be partitioned by sale as well as the termination of the partnership, and specified the amount of attorney's fees to be recovered through appeal. Those provisions were effectuated by the post appeal order. The court of appeals' determination that the payment order did not award new or additional damages is flawed because the court mistakenly equated evidence presented to set the bond amount (in 2014) with evidence needed to order payment, if any, on the bond (in 2016). 542 S.W.3d at 670 (stating that evidence was presented in 2014 supporting the bond payment order). But, the evidence presented at the hearing setting the bond amount was evidence of what damages the appeal might cause Coffeehouse if its judgment were not immediately enforced, not what damages the appeal actually did cause it. Thus, while the bond was related to the 2014 judgment, the order requiring payment of amounts pursuant to the bond went beyond provisions of the judgment. We conclude that the trial court's order requiring payment of the amount of the supersedeas bond was an appealable order and the court of appeals had jurisdiction to consider the merits of McFadin's appeal.
+McFadin contends that the trial court's order requiring payment of the amount of the bond absent evidence of damages to Coffeehouse results in a deprivation of his property without due process of law. However, he raises his due process concern for the first time in this Court. That being so, he has not preserved the issue for our review. In re K.M.L. , 443 S.W.3d 101 , 119 (Tex. 2014) (citing D. H. Overmyer Co. v. Frick Co. , 405 U.S. 174 , 185, 92 S.Ct. 775 , 31 L.Ed.2d 124 (1972) (Due process rights to notice and hearing prior to a civil judgment are subject to waiver.)).",analysis
+665,3161039,1,2,"Motion for oral argument {¶ 13} The ORP has moved for oral argument, which is discretionary in an original action. S.Ct.Prac.R. 17.02(A). Because we are able to decide the issues in this case without oral argument, we deny that motion. State ex rel. Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, ¶ 65. Show-cause order and motion to strike {¶ 14} On March 25, 2015, we ordered the ORP to show cause why the case should not be dismissed as moot based on media reports that the county had released the key-card-swipe data to the press. 142 Ohio St.3d 1407, 2015-Ohio1099, 27 N.E.3d 538. As we explained in State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 18, “providing the requested records to a relator generally renders moot a public-records mandamus claim.” {¶ 15} However, in response to the show-cause order, the ORP asserts that the county still has not provided it all of the requested records. The county admits in its memorandum in response that it released “similar” records to the Plain Dealer, but it contends that the records sought in this action are security and infrastructure records that the county is not required to release. And the county indicates that if the ORP submitted a new request, the county would “place it through the appropriate channels.” {¶ 16} The ORP then moved to strike the county’s memorandum in response, arguing that it constitutes “supplemental argument and briefing” in violation of Sup.Ct.Prac.R. 16.08. However, the county submitted additional 5 SUPREME COURT OF OHIO evidence to prove that it had exercised its discretion to provide FitzGerald’s keycard-swipe data to the press, information that is relevant to determining whether this action is moot. In State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Information Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 8, we noted that “[a]n event that causes a case to become moot may be proved by extrinsic evidence outside the record.” We therefore deny the motion to strike. {¶ 17} And because the county has not released the records to the ORP and continues to maintain that pursuant to R.C. 149.433, FitzGerald’s key-card-swipe data are not public records that must be released, we conclude that this case is not moot. Motions to take judicial notice {¶ 18} The ORP filed two motions asking the court to take judicial notice of information on the county’s governmental website—specifically, the county’s announcements that the county executive’s office had moved to a new building and that a new county executive had replaced FitzGerald. Pursuant to Evid.R. 201(B), courts may take judicial notice of facts not subject to reasonable dispute, and here, these motions are unopposed and the county posted the information on its own website. Thus, the motions to take judicial notice of this information are well taken and granted. Merits {¶ 19} “Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). Although we liberally construe the Public Records Act in favor of access to public records, “the relator must still establish entitlement to the requested extraordinary relief by clear and 6 January Term, 2015 convincing evidence.” State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 16. {¶ 20} But here, the county asserts that the requested records are exempt from disclosure pursuant to R.C. 149.433. As we explained in State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, [e]xceptions to disclosure under the Public Records Act, R.C. 149.43, are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception.    A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception. Id. at ¶ 10. {¶ 21} R.C. 149.433(B) provides that “[a] record kept by a public office that is a security record or an infrastructure record is not a public record under section 149.43 of the Revised Code and is not subject to mandatory release or disclosure under that section.” {¶ 22} R.C. 149.433(A)(3)1 defines the term “security record”: (3) “Security record” means any of the following: (a) Any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage; 1 This is the current version of R.C. 149.433. The statute was amended slightly in September 2014, Am.Sub.H.B. 487, but the change is not relevant to this opinion. 7 SUPREME COURT OF OHIO (b) Any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or respond to acts of terrorism, including any of the following: (i) Those portions of records containing specific and unique vulnerability assessments or specific and unique response plans either of which is intended to prevent or mitigate acts of terrorism, and communication codes or deployment plans of law enforcement or emergency response personnel; (ii) Specific intelligence information and specific investigative records shared by federal and international law enforcement agencies with state and local law enforcement and public safety agencies; (iii) National security records classified under federal executive order and not subject to public disclosure under federal law that are shared by federal agencies, and other records related to national security briefings to assist state and local government with domestic preparedness for acts of terrorism. (c) An emergency management plan adopted pursuant to section 3313.536 of the Revised Code. {¶ 23} We construed R.C. 149.433(A)(3) in State ex rel. Plunderbund Media, L.L.C., v. Born, 141 Ohio St.3d 422, 2014-Ohio-3679, 25 N.E.3d 988, explaining that “security records” include those that are directly used for protecting and maintaining the security of a public office as well as the public officials and employees of that office. Id. at ¶ 20. There, the Director of Public Safety had presented evidence that disclosure of records documenting threats against the governor “ ‘would expose security limitations and vulnerabilities,’ ” id. at ¶ 24 (quoting the affidavit of John Born), could “ ‘reveal patterns, techniques or 8 January Term, 2015 information’ related to security,” id. at ¶ 25 (quoting the affidavit of Highway Patrol Superintendent Paul Pride), and “ ‘could be used to commit terrorism, intimidation, or violence,’ ” id. at ¶ 26 (quoting the affidavit of Ohio Homeland Security Executive Director Richard Baron). Based on that evidence, we concluded that those records, which involved direct threats against the governor, were security records not subject to release as public records, because they were directly used to protect and maintain the secure functioning of the governor’s office. Id. at ¶ 30. {¶ 24} Similarly, in this case, the county withheld release of the key-cardswipe data because there had been verified threats against FitzGerald, and according to Detective Soprek, it was “critical” to protect information regarding FitzGerald’s “manner and pattern of travel, ingress and egress, and timing” that would be revealed by the key-card-swipe data. Soprek also averred that release of the key-card-swipe data would “diminish[ ] the effectiveness of the Principal Protection Unit and its ability to protect the County Executive.” Thus, pursuant to Plunderbund, the key-card-swipe data contain information directly used for protecting or maintaining the security of a public office, and for that reason, they are “security records” within the meaning of R.C. 149.433(A)(3). See Plunderbund at ¶ 28. {¶ 25} We reject the county’s contention that the key-card-swipe data are exempt from release as infrastructure records. R.C. 149.433(A)(2) defines “infrastructure record” to mean any record that discloses the configuration of a public office’s or chartered nonpublic school's critical systems including, but not limited to, communication, computer, electrical, mechanical, ventilation, water, and plumbing systems, security codes, or the infrastructure or structural configuration of the building in which a public office or chartered nonpublic school is located. 9 SUPREME COURT OF OHIO “Infrastructure record” does not mean a simple floor plan that discloses only the spatial relationship of components of a public office or chartered nonpublic school or the building in which a public office or chartered nonpublic school is located. {¶ 26} The key-swipe data sought by the ORP does not disclose the configuration of a public office’s critical systems. Rather, it shows when FitzGerald entered the building each day—facts unrelated to the building’s structural configuration. And although the affidavit of David DeGrandis indicates that the key-swipe data could “reveal the existence of [a] nonpublic, secured entryway,” DeGrandis does not specify that the data would reveal the location of such an entryway—information the ORP did not seek in its request. In any case, the location of any secured entrances would be observable by the public and would appear on “a simple floor plan that discloses only the spatial relationship of components of    the building in which a public office    is located,” and such a floor plan is expressly excluded from the definition of an infrastructure record. R.C. 149.433(A)(2). Thus, even if the key-card-swipe data reveals the location of nonpublic, secured entrances, it is not excepted from disclosure as an infrastructure record. {¶ 27} At the time of the request, R.C. 149.433 exempted FitzGerald’s keycard-swipe data from disclosure because FitzGerald had received threats. The undisputed evidence now demonstrates that the data are neither security records nor infrastructure records. Cuyahoga County’s website reflects that as of July 2014, its administrative offices are now located in a new building. See http://www.cuyahogacounty.us/en-US/HQ-Background.aspx; http://www.cuyahog acounty.us/en-US/New-County-Admin-HQ.aspx (accessed October 15, 2015). In addition, the old county administration building has been demolished See http://www.cuyahogacounty.us/en-US/InterimLocations.aspx (accessed October 10 January Term, 2015 15, 2015). Lastly, Fitzgerald is no longer the county executive. http://executive.cuyahogacounty.us/en-US/Budish-Takes-Oath-of-Office.aspx (accessed October 15, 2015). {¶ 28} Thus, because FitzGerald is no longer the county executive, the keycard-swipe data are no longer security records, and because the old county administration building has been demolished, that data cannot disclose the configuration of its critical systems and are not infrastructure records. {¶ 29} Release of FitzGerald’s key-card-swipe data to the press also precludes the assertion that the data are excepted from disclosure pursuant to the public-records law. State ex rel. Cincinnati Enquirer, 98 Ohio St.3d 126, 2002Ohio-7041, 781 N.E.2d 163, ¶ 22 (“Voluntarily disclosing the requested record can waive any right to claim an exemption to disclosure”); State ex rel. Gannett Satellite Information Network, Inc. v. Petro, 80 Ohio St.3d 261, 265, 685 N.E.2d 1223 (1997) (state auditor waived right to assert that records were exempt from disclosure partly because he made the records available to the public, represented to the relators that the records were public records, and orally described the records to a representative from the newspaper). {¶ 30} Accordingly, FitzGerald’s key-card-swipe data are public records, and the county has failed to demonstrate they are exempt from disclosure pursuant to R.C. 149.433. Thus, we grant the requested writ of mandamus and order the release of the records. Writ granted. O’CONNOR, C.J., and O’DONNELL, SADLER, and SINGER, JJ., concur. PFEIFER, LANZINGER, and O’NEILL, JJ., dissent. LISA L. SADLER, J., of the Tenth Appellate District, sitting for KENNEDY, J. ARLENE SINGER, J., of the Sixth Appellate District, sitting for FRENCH, J. _____________________ 11 SUPREME COURT OF OHIO O’NEILL, J., dissenting. {¶ 31} Respectfully, I dissent. Today the court revives a denied publicrecords request. I do not disagree with the court’s determination that the records at issue are subject today to release as public records. Rather, I disagree with its determination that the court should issue a writ of mandamus to compel respondents to release documents based on a request that was previously properly denied. {¶ 32} The majority opinion boils down the three-part standard for granting a writ of mandamus to the simple statement that “ ‘[m]andamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio’s Public Records Act.’ ” Majority opinion at ¶ 19, quoting State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). As a common practice, this court has made this simple observation in public-records cases. E.g., State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 49. But in the normal course of reviewing a mandamus action, we traditionally conduct a three-part inquiry when considering whether to grant the writ: the relator must establish (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent, and (3) the lack of an adequate remedy in the ordinary course of the law. E.g., State ex rel. Simpson v. State Teachers Retirement Bd., 143 Ohio St.3d 307, 2015-Ohio-149, 37 N.E.3d 1176, ¶ 17. We have held that the legislature, by enacting R.C. 149.43(C), made mandamus the only appropriate remedy for enforcing the public-records law. State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 426-427, 639 N.E.2d 83 (1994). Accordingly, we no longer reject petitions seeking an order compelling disclosure of public records on the basis that there is an adequate remedy in the ordinary course of the law. Id. Until today, we have not done away with the other two prongs of the mandamus standard in public-records cases. 12 January Term, 2015 {¶ 33} Through changed circumstances subsequent to respondents’ denial of relator’s request, relator has inarguably become entitled to the records at issue. The building in question no longer exists; the public official is no longer in office; and the security risk has gone away. In light of these new developments, what is respondents’ duty with regard to the request? I would say they have none. {¶ 34} When any person requests public records, a public office must promptly prepare any records for inspection that are responsive to the request. R.C. 149.43(B)(1). The public office must also make copies of the requested records available at cost. Id. If some of the responsive records contain information that is exempt from inspection, the public office must still provide all of the nonexempt public records. Id. The public office must notify the requester of any redactions, and a redaction is treated as a denial of the public-records request. Id. If all or part of a request is denied, the public office shall provide an explanation for the denial with citations to legal authority. R.C. 149.43(B)(3). {¶ 35} It is plain that respondents complied with these clear legal duties on July 11 and 31, 2014. At that time, the county provided the key-card-swipe data that relator was entitled to and provided an explanation for the partial denial. The majority readily agrees that the records withheld from relator were not subject to disclosure at that time. Majority at ¶ 3. {¶ 36} Respondents did not fail to perform any act that they had a duty to perform. There is no provision in the Revised Code requiring public offices to keep track of whether the circumstances that justified the denial of a public-records request subsequently change. Likewise, public offices are not required to act on their own initiative to revive denied requests, even if they may be compelled to grant new requests for the same records based on new circumstances. {¶ 37} Our power to issue writs of mandamus is an extraordinary one that we should use only “to prevent a failure of justice.” State ex rel. Murphy v. Graves, 91 Ohio St. 36, 38, 109 N.E. 590 (1914); State ex rel. Ingerson v. Berry, 14 Ohio 13 SUPREME COURT OF OHIO St. 315, 323 (1863) (“Designed only as a remedy to prevent the failure of justice, [mandamus] must not be made the minister of injustice, and the law does not require the performance of things which are either impossible or useless” [emphasis sic]). Instead of showing reserve in the interest of doing only what justice demands, the majority stretches the law in this matter to vindicate relator’s litigious conduct. {¶ 38} A proper public-records request was made. It was properly denied. Any action taken by anyone subsequent to that final denial is irrelevant, and the majority’s focus on those acts obfuscates the question before us. Does the subsequent demolition of the building in question, the departure from office of the official involved, or the Plain Dealer’s receipt of the records requested change anything for our legal analysis? No. The request was properly denied at the time, and respondents do not have a duty to examine old requests to determine whether the conditions that permitted denial of the request have subsequently changed. {�� 39} Therefore, I must dissent. PFEIFER and LANZINGER, JJ., concur in the foregoing opinion. _____________________ Law Firm of Curt C. Hartman and Curt C. Hartman; Law Firm of Daniel P. Carter and Daniel P. Carter; and Finney Law Firm, L.L.C., and Christopher P. Finney, for relator. Majeed G. Makhlouf, Cuyahoga County Law Director, and Robin M. Wilson, Assistant Law Director, for respondents. ______________________ 14",analysis
+666,4514688,1,2,"As a preliminary matter, we briefly discuss our jurisdiction to hear this case in the first instance. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 916, 296 P.3d 1106 (2013) (appellate court has duty to question jurisdiction on its own initiative). A ruling on a motion to correct an illegal sentence, where the sentence imposed for a homicide is imprisonment for life, is directly appealable to this court. K.S.A. 2016 Supp. 22-3601(b)(3). In contrast, the initial appeal of a district court's ruling on a K.S.A. 60-1507 motion goes to the Court of Appeals. K.S.A. 2016 Supp. 60- 3 1507(d). While this case was not filed under either statutory authority, it was construed as a 60-1507 motion, and should have been appealed first to the Court of Appeals. But, as a matter of judicial economy, we will consider this appeal as having been transferred to this court, on our own motion. See K.S.A. 20-3018(c) (Supreme Court can transfer case from Court of Appeals on its own motion). In other words, we will dispose of the matter before us. RETROACTIVE APPLICATION OF ALLEYNE HOLDING TO FINAL CASES In Kirtdoll, 306 Kan. at ____, slip op. at 8, we held that the rule of law established by Alleyne cannot be applied retroactively via a K.S.A. 60-1507 motion to invalidate sentences in cases that were final when Alleyne was decided. We noted that the holding in Alleyne, like the Apprendi decision from which it derived, was not considered a new watershed rule of constitutional criminal procedure that would fit within an exception to the general rule against retroactively applying new rules of law on collateral review. Kirtdoll, 306 Kan. at ____, slip op. at 7-8; see Teague v. Lane, 489 U.S. 288, 311-13, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (establishing the exceptions permitting retroactive application of new rules of law). Consequently, Kirtdoll could not obtain relief from his hard 50 life sentence. Vontress' circumstances mirror those of Kirtdoll. His case was final when Alleyne was decided; he cannot take advantage of Alleyne's new rule of law; and he cannot get relief from his hard 40 life sentence. The district court's summary denial of Vontress' 601507 motion is affirmed. Affirmed. 4",jurisdiction
+667,2631646,1,4,"During the pendency of Colleen's appeal from the divorce decree, the district court entered a post-decree order modifying the custody arrangement. Under NRS 125.510(1)(b), the district court may [a]t any time modify or vacate its order regarding a minor child's custody. This court has not addressed whether this statute confers continuous jurisdiction on the district court even when an appeal is pending. This court has consistently explained that a timely notice of appeal divests the district court of jurisdiction to act and vests jurisdiction in this court [2] and that the point at which jurisdiction is transferred from the district court to this court must be clearly defined. [3] Although, when an appeal is perfected, the district court is divested of jurisdiction to revisit issues that are pending before this court, the district court retains jurisdiction to enter orders on matters that are collateral to and independent from the appealed order, i.e., matters that in no way affect the appeal's merits. [4] Applying these basic jurisdiction premises to the child custody context, the district court has no authority to rule on a post-judgment motion to modify a child custody arrangement while an appeal is pending and the custody issue is squarely before this court. Consequently, even though NRS 125.510(1)(b) purportedly authorizes the district court to change a child custody arrangement at any time, the district court may only modify child custody when it has jurisdiction to do so — i.e., when no perfected appeal pertaining to the child custody arrangement is pending. The proper procedure to be followed when a party seeks to change a child custody order during an appeal challenging the child custody arrangement is a remand under Huneycutt v. Huneycutt. [5] Under the Huneycutt procedure, a district court may hear a motion, in the first instance, to modify custody while an appeal is pending. If the district court is inclined to grant the motion, then it may certify its inclination to this court. At that point, the moving party would file a motion in this court for remand to the district court. This court could then, in its discretion, remand the matter to the district court for a determination on the motion to modify custody. If the only issue on appeal concerned child custody and this court granted the motion for remand, then the appeal would be dismissed. If, however, the appeal raised additional issues other than child custody, this court could order a limited remand and direct the district court to enter an order resolving the motion to modify within a specific time period and to transmit the order to this court. On remand, once the district court entered its order concerning custody, any aggrieved party could appeal from the order by filing a timely notice of appeal. [6] Although the district court lacks jurisdiction to revisit a child custody order that is on appeal, the district court's jurisdiction to make short-term, temporary adjustments to the parties' custody arrangement, on an emergency basis to protect and safeguard a child's welfare and security, [7] is not impinged when an appeal is pending. If the district court's emergency order will necessitate a longer-term custody change or will implicate the custody issues on appeal, then the party seeking the change must immediately move for a remand from this court and attach to that motion the district court's emergency order. In the present case, the district court concluded that under NRS 125.510(1)(b), it had the authority to entertain Terry's motion to modify the child custody arrangement while the appeal was pending. As the issues raised by Colleen on appeal from the divorce decree concerned child custody, the district court did not have jurisdiction to enter a post-decree order changing the custody arrangement. Although the district court lacked jurisdiction to modify the custody arrangement under the divorce decree, because it was inclined to grant Terry's motion to modify custody, and in the interest of judicial economy, we have considered the post-decree order in Docket No. 42003. [8] Since the post-decree order modified the custody arrangement under the divorce decree, we do not need to consider the initial custody arrangement in Docket No. 39160, and we dismiss that appeal as moot. [9]",jurisdiction
+668,2207920,1,2,"The double jeopardy clause contained within the fifth amendment to the United States Constitution provides: [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. U.S. Const., amend. V. There are three separate protections embraced by this double jeopardy clause: (1) protection against retrial for the same offense after an acquittal, (2) protection against retrial for the same offense after a conviction, and (3) protection against multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969); People v. Stefan, 146 Ill.2d 324, 333, 166 Ill.Dec. 910, 586 N.E.2d 1239 (1992). These protections are also guaranteed by the Illinois Constitution of 1970, which provides that [n]o person shall be    twice put in jeopardy for the same offense. Ill. Const.1970, art. I, § 10; People v. Levin, 157 Ill.2d 138, 191 Ill.Dec. 72, 623 N.E.2d 317 (1993). As a general rule, the protections afforded by the double jeopardy clause are limited to the same offense. Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). However, because collateral estoppel principles are embodied in the constitutional guarantee against double jeopardy ( Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)), an issue of ultimate fact, if determined by a valid and final judgment, may not be relitigated in a future proceeding. This does not mean, however, that the double jeopardy clause    prevent[s] a state from selecting a penalty independently for each crime a person commits. Kokoraleis v. Gilmore, 131 F.3d 692, 695 (7th Cir.1997). Nor does it violate double jeopardy principles for a defendant to be convicted and sentenced for a crime even though the conduct underlying that offense has been considered in determining the defendant's sentence for a previous conviction. Witte v. United States, 515 U.S. at 398, 115 S.Ct. at 2205, 132 L.Ed.2d at 363; Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959). Applying the above principles, the Seventh Circuit Court of Appeals ruled that collateral estoppel does not apply to prohibit a State from seeking capital punishment a second time for the same series of murders that was before a prior jury. Kokoraleis, 131 F.3d at 695. In Kokoraleis, the defendant was a serial killer who had confessed to murdering as many as 18 women. Defendant was tried and convicted for the murder of Rose Beck Davis, but the jury decided not to impose the death penalty. Thereafter, defendant was convicted for the murder of Lori Borowski and sentenced to death. He appealed his death sentence, claiming that capital punishment for the Borowski murder was precluded by the fact that the other jury had decided not to impose the death penalty. The court held: Kokoraleis tells us that the question decided by the jury in the Cook County prosecution was `whether he should be put to death for torturing and being a serial killer of sixteen to eighteen women.' Phrasing the question in this way makes it possible to say that the two juries decided the same issue. But this is not the question either jury decided. The Cook County jury selected the punishment for the murder of Rose Beck Davis; the DuPage County jury chose the punishment for the murder of Lori Borowski. Each jury was entitled to consider facts about Kokoraleis' background, including his other criminal acts (which by the time of the prosecution for the Borowski murder included a prior murder conviction), but this does not mean that the punishment in a given case is for these other crimes; it is for the crime of which the defendant now stands convicted. Kokoraleis, 131 F.3d at 695. In the case at bar, defendant raised the same argument made by the defendant in Kokoraleis and the trial court rejected it. Defendant has since abandoned this argument in his appeal before this court. [1] Consequently, the only argument which defendant has presented for our consideration is whether the State is precluded from seeking the death penalty at defendant's retrial for Moret's murder because the jury at defendant's resentencing for Doffyn's murder ruled that the Moret murder was defendant's first conviction. Before addressing this argument, we examine the statutory provision at issue here. Section 9-1(b)(3) of the Illinois death penalty statute provides: (b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of first degree murder may be sentenced to death if:    (3) the defendant has been convicted of murdering two or more individuals under subsection (a) of this Section or under any law of the United States or of any state which is substantially similar to subsection (a) of this Section regardless of whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or of separate acts which the defendant knew would cause death or create a strong probability of death or great bodily harm to the murdered individual or another[.] 720 ILCS 5/9-1(b)(3) (West 1998). In People v. Albanese, 104 Ill.2d 504, 533-34, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984), we interpreted the phrase has been convicted of as used in section 9-1(b)(3) and concluded that [t]he statute speaks in terms of prior convictions, not prior offenses. We held that when a defendant, like the defendant in the case at bar, commits two murders on two separate dates and he is tried first for the murder which occurred on a later date, that conviction may be used as an aggravating factor at the trial of the other murder, which occurred earlier in time. We concluded that it was the sequence of convictions, not the sequence of conduct, which determines whether or not the multiple-murder aggravating-factor provision applies in a given case. People v. Johnson, 182 Ill.2d 96, 109, 230 Ill.Dec. 945, 695 N.E.2d 435 (1998); People v. Guest, 115 Ill.2d 72, 105, 104 Ill.Dec. 698, 503 N.E.2d 255 (1986). Our own examination of the statutory language convinces us that the statute clearly provides that a defendant will be eligible for the death penalty if it is shown that he has been convicted of murdering two or more individuals    whether the deaths occurred as the result of the same act or of several related or unrelated acts. Nothing in the statutory language suggests that a capital sentencing jury is required to make a factual determination as to the order of these convictions. The jury simply must find whether, at the time of sentencing, the defendant stands convicted of two or more first degree murders. It follows, then, that in the case at bar, the Doffyn sentencing jury made no factual determination, legally binding or otherwise, that the Moret murder was defendant's first conviction. The jury merely found that, at the time of defendant's second sentencing hearing for Doffyn's murder, defendant had another conviction for first degree murder. Thus, the jury's finding that the section 9-1(b)(3) aggravating factor was proved at defendant's retrial for the murder of Officer Doffyn has no collateral impact on the State's ability to seek the death penalty in the case at bar. Furthermore, even if defendant was correct in his premise that the Doffyn jury implicitly ruled that defendant's prior conviction for the murder of Moret was defendant's first conviction for purposes of death eligibility under section 9-1(b)(3), that prior conviction no longer exists. The slate was wiped clean when this court reversed on appeal defendant's conviction for Moret's murder. See Poland v. Arizona, 476 U.S. 147, 152, 106 S.Ct. 1749, 1753, 90 L.Ed.2d 123, 130 (1986) (the usual rule is that, when a defendant obtains reversal of his conviction on appeal, the original conviction has been nullified and the slate wiped clean); Bullington v. Missouri, 451 U.S. 430, 443, 101 S.Ct. 1852, 1860, 68 L.Ed.2d 270, 281-82 (1981). Although we reject defendant's contention that a murder conviction which occurs, chronologically, before another conviction remains the first conviction despite subsequent reversal, we recognize that there is an interdependent relationship which exists between a defendant's murder convictions when they are used to establish death eligibility pursuant to the section 9-1(b)(3). In Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), the United States Supreme Court reversed a defendant's death sentence when a prior murder conviction, which served as an aggravating factor, was reversed on appeal. The Court held: Since that conviction has been reversed, unless and until petitioner should be retried, he must be presumed innocent of that charge. Indeed, even without such a presumption, the reversal of the conviction deprives the prosecutor's sole piece of documentary evidence of any relevance to Mississippi's sentencing decision. Johnson, 486 U.S. at 585, 108 S.Ct. at 1986, 100 L.Ed.2d at 584. Similarly, the Florida Supreme Court in Oats v. State, 446 So.2d 90 (Fla.1984), when considering a situation where an aggravating circumstance of a prior conviction, valid at the time of sentencing, is subsequently reversed and vacated by an appellate court, stated: We now hold that in such a situation the vacated conviction cannot be used as an aggravating factor. Therefore, the trial court was in error in finding this aggravating circumstance present. Oats, 446 So.2d at 95. What these cases mean to the defendant here is that, had the multiple-murder aggravating factor been the only basis for finding defendant death eligible in the Doffyn case and had the jury imposed the death penalty in that case, the reversal of the Moret murder conviction might have supplied defendant with grounds for obtaining resentencing in the Doffyn case. In the case at bar, however, defendant will receive a new trial on the question of his guilt for the murder of Louis Moret. If he is found guilty, the question before the capital sentencing jury will be whether, at the time of sentencing, defendant has been convicted of committing two or more murders. If the jury finds the has been convicted of murdering two or more individuals factor to exist, defendant shall be eligible for a death sentence. The State is not precluded by collateral estoppel principles from using defendant's conviction for Officer Doffyn's murder to establish defendant's eligibility for the death sentence. Our conclusion in this case is supported by the Florida Supreme Court decision in Oats. In that case, the court noted that the defendant had subsequently received a new trial on the offenses underlying his earlier convictions which had been vacated. The new trial had resulted in convictions, which were upheld on review. The court held: Although the use of this aggravating factor was in error at the time it was found, and we therefore disallow it, were we to remand for a new penalty phase trial the jury could properly consider evidence of the later, valid conviction. Oats, 446 So.2d at 95. As a final matter, defendant's counsel, at oral argument, raised an arbitrariness argument. He contended that it would be arbitrary to allow the State to reverse or interchange the order of convictions to create death eligibility under section 9-1(b)(3) for both murders. Under Supreme Court Rule 341(e)(7), this argument is untimely and thus has been waived.",analysis
+669,1710572,1,3,"Appellant argues that the trial court erred in submitting the charge of first degree murder to the jury. He claims there was no evidence from which the jury could find that appellant deliberated prior to the murders of Julie and Robin Kerry. When reviewing a challenge to the sufficiency of the evidence, the test is whether the state presented sufficient evidence that a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Brown, 902 S.W.2d 278, 288 (Mo. banc 1995). Deliberation may be inferred from any circumstances that indicate cool reflection for any length of time no matter how brief. Id. The evidence and inferences from the evidence are viewed in the light most favorable to the verdict. State v. Storey, 901 S.W.2d 886, 895 (Mo. banc 1995). Evidence and any inferences therefrom that do not support a finding of guilt are ignored. State v. O'Brien, 857 S.W.2d 212, 216 (Mo. banc 1993). In cases of first-degree murder involving accomplice liability, the jury must find that the defendant himself deliberated. Id. at 217-218. While the act of homicide may be imputed to an accomplice, the element of deliberation may not be imputed by association. Id. Proof that a defendant merely aided another with the purpose of facilitating an intentional killing is not enough to prove first degree murder. Id. To make its case, the state must introduce evidence from which a reasonable juror could conclude beyond a reasonable doubt that the defendant (1) committed acts that aided his codefendant in killing the victims; (2) defendant's conscious purpose in committing the acts was that the victims be killed; and (3) defendant committed the acts after coolly deliberating on the victims' deaths for some amount of time, no matter how short. Id. In State v. Gray, 887 S.W.2d 369 (Mo. banc 1994), a companion case, this Court addressed the question of accessory liability. In examining the evidence, the Court noted three circumstances that appear highly relevant in determining if accomplice deliberation may be inferred. Id. at 376. The first circumstance is whether there is a statement or conduct by the defendant or by a codefendant in the presence of defendant prior to the murder indicating a purpose to kill someone. Id. Another is evidence that the murder was committed by means of a deadly weapon and the accomplice was aware that the deadly weapon was to be used in the commission of the crime. Id. at 377. Finally, evidence of deliberation will be found where it appears that the defendant either participated in the homicide or continued in the criminal enterprise even after it became apparent that a victim was to be killed. Id. In this case, there is ample evidence of statements or conduct by the defendant or in the defendant's presence indicating a purpose to kill. When the plan was first conceived, Marlin Gray announced that he felt like hurting someone. While the rapes were occurring, someone—by inference either appellant or Antonio Richardson—said to Julie Kerry: You stupid bitch, do you want to die? I'll throw you off the bridge if you don't stop fighting. [1] Appellant threw the sisters' clothes off of the bridge. After the rapes, first Richardson and then the appellant each put one of the Kerry sisters through the manhole to the platform below the bridge deck, from which the sisters were pushed to their deaths. Appellant then returned to the bridge deck where, after robbing Cummins, he discussed with Winfrey whether Cummins should live or die. Gray or Richardson could not have taken part in this discussion because Richardson was under the bridge and Gray had already started to walk off the bridge. Someone told Cummins that he had never had the pleasure of popping someone before. If appellant did not say this, it was said in his presence. Appellant then took Cummins and moved him next to the manhole, ordering him to lie down. Someone—either appellant or Winfrey—said, You're going to die, after which appellant put Cummins into the manhole, before sending Winfrey to look for Gray and following Cummins through the manhole to the platform beneath the bridge himself. Once underneath the bridge, either appellant or Richardson pushed the Kerry sisters from the bridge and ordered Cummins to jump into the river. Afterward, appellant bragged, We threw them off. Statements made by the defendant or in his presence indicated an intention to kill. Appellant continued to play an active role in the death-producing events, even after it became abundantly clear that the victims would be killed. The evidence of deliberation in this case is substantial, compelling, and without doubt. The trial court did not err in submitting the charges of first degree murder to the jury.",sufficiency of the evidence
+670,6331523,1,2,"“It is well established that a probate appeal to the Superior Court ‘is de novo in nature.’” Larkin v. Arthurs, 210 A.3d 1184, 1190 (R.I. 2019) (deletion omitted) (quoting Lett v. Giuliano, 35 A.3d 870, 876 (R.I. 2012)). On our appellate review, 5 In the Superior Court, defendant had asserted that plaintiff’s probate appeal was barred by res judicata; because the parties have not argued this issue on appeal, however, we need not address it here. -9- however, “the factual findings of a trial justice sitting without a jury are accorded great weight and will not be disturbed unless the record shows that the findings clearly are wrong or the trial justice overlooked or misconceived material evidence.” Id. (quoting In re Estate of Ross, 131 A.3d 158, 166 (R.I. 2016)). “If, in our review of the record, ‘it becomes clear to us that the record indicates that competent evidence supports the trial justice’s findings, we shall not substitute our view of the evidence for that of the trial justice even though a contrary conclusion could have been reached.’” Id. (brackets omitted) (quoting In re Estate of Ross, 131 A.3d at 166). Questions of law and statutory construction, however, we review on a de novo basis. See, e.g., In re Estate of Ross, 131 A.3d at 166. Furthermore, choice-of-law determinations are questions of law, which this Court reviews on a de novo basis. See Webster Bank, National Association v. Rosenbaum, 268 A.3d 556, 559 (R.I. 2022) (indicating that “our case law is replete with instances in which we in effect reviewed [choice-of-law issues] on a de novo basis”) (quoting Harodite Industries, Inc. v. Warren Electric Corporation, 24 A.3d 514, 529 (R.I. 2011)); King v. Huntress, Inc., 94 A.3d 467, 482 (R.I. 2014) (applying a de novo standard of review to a choice-of-law issue). - 10 - III",standard of review
+671,6324593,1,5,"[4,5] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the appeal. 7 For an appellate court to acquire jurisdiction of an appeal, there must be a final judgment or final order entered by the tribunal from which the appeal is taken. 8 Feik contends that the order appealed from is not a final order. [6,7] In probate proceedings, an appellate court applies the rubric of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) to determine whether an order is final. The relevant questions are whether the order was made during a special proceeding and affected a substantial right. 9 A proceeding under the Nebraska Probate Code is a special proceeding. 10 [8-10] We turn our attention to whether the order affected a substantial right. A substantial right is an essential legal right, not a mere technical right. 11 A substantial right is affected if an order affects the subject matter of the litigation, such as by diminishing a claim or defense that was available to an appellant before the order from which an appeal is taken. 12 Substantial rights under § 25-1902 include those legal rights that a party is entitled to enforce or defend. 13 [11] In the context of multifaceted special proceedings that are designed to administer the affairs of a person, an order that ends a discrete phase of the proceedings affects a substantial right because it finally resolves the issues raised in that 7 In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021). 8 In re Estate of Beltran, supra note 3. 9 Id. 10 See id. 11 Id. 12 Id. 13 In re Estate of Larson, supra note 7. - 988 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 phase. 14 Thus, a consideration regarding the finality of orders in probate cases is whether the order ended a discrete—that is, separate and distinct—phase of the proceedings. 15 A statute provides that “a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.” 16 Here, the probate court’s order appointing Kelly as personal representative ended a discrete phase of the probate proceeding. Moreover, the appointment order coupled with the issuance of letters of personal representative imposed fiduciary duties upon Kelly. 17 Because the order was made in a special proceeding and affected a substantial right, it was a final order. Appointment of Kelly as Personal Representative We next consider Kelly’s assignment of error alleging that the probate court “erred in appointing [her] as personal representative of the Estate because it lacked jurisdiction to make the appointment, [Kelly] objected to the appointment, and [she] did not accept the appointment as required by Nebraska Revised Statute § 30-2420.” During oral arguments, Kelly’s counsel argued in connection with this assignment that the letters were not effective. We understand Kelly’s assignment of error to encompass a challenge to the issuance of letters of personal representative to an appointee who refuses to qualify. Several probate statutes speak to qualification of a personal representative. One provides that “to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court 14 Id., citing John P. Lenich, What’s So Special About Special Proceedings? Making Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001). 15 In re Estate of Beltran, supra note 3. 16 Neb. Rev. Stat. § 30-2407(4) (Reissue 2016). 17 See Neb. Rev. Stat. § 30-2464 (Reissue 2016). - 989 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 or registrar, qualify and be issued letters.” 18 Another specifies that “the registrar . . . shall appoint the applicant subject to qualification and acceptance.” 19 Yet another states that “[p]rior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.” 20 The latter two statutes touch on another important component: acceptance. Acceptance of an appointment denotes consent to the appointment. 21 “Consent is the preliminary essential requirement for an appointment as an executor or administrator.” 22 The Utah Supreme Court addressed the necessity of consent in considering whether a court had the authority to compel an individual to serve as an administratrix against her will. 23 It found support for the requirement in its constitutional and statutory provisions: The Constitution of Utah prohibited “‘involuntary servitude,’” while a statute required that prior to issuance of letters testamentary or of administration “‘the executor, administrator or guardian must take and subscribe an oath that he will perform according to law the duties of executor, administrator or guardian, which oath must be attached to the letters.’” 24 The court explained the importance of appointing an individual willing to serve: A highly personal trust arises from an appointment as administrator and to compel one to serve against his will for the benefit of those to whom he has no obligation 18 Neb. Rev. Stat. § 30-2403 (Reissue 2016). 19 Neb. Rev. Stat. § 30-2420 (Reissue 2016). 20 Neb. Rev. Stat. § 30-2444 (Reissue 2016). 21 See “Accept,” Oxford English Dictionary Online, http://www.oed.com/ view/Entry/1006 (last visited Feb. 14, 2022) (“[t]o consent to”). 22 33 C.J.S. Executors and Administrators § 88 at 793 (2009). See Matter of Estate of Cluff, 587 P.2d 128 (Utah 1978). 23 See Matter of Estate of Cluff, supra note 22. 24 Id. at 129. - 990 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 would constitute a violation of public policy as well. It is necessary for the protection of estate heirs, creditors, and the general public that an administrator serve free from compulsion and that he only be allowed to serve when so willing. Generally speaking, only a willingness to serve is consistent with proper estate administration and the interest of the Court. 25 The Utah Supreme Court’s reasoning is persuasive. We need not discuss our own constitution, because our statute, as set forth above, requires that “a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.” 26 A consequence of acceptance is contained in a different statute: “By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person.” 27 With respect to acceptance, we find some parallels in our recent decision concerning a guardianship. 28 There, the county court directed that a ward’s parents be appointed as coguardians upon issuance of letters of guardianship and upon the parents’ filing, among other things, an acceptance of appointment. The parents never filed an acceptance. They appealed, assigning that the court erred in ordering them to serve as guardians over their objection. We agreed with the parents that “one who is not willing to serve as a private guardian cannot be compelled to accept such an appointment.” 29 And we 25 Id. at 129-30. 26 § 30-2444 (emphasis supplied). See, also, Neb. Ct. R. § 6-1446 (providing for appointment to be set aside where personal representative had been appointed but failed to qualify by filing required bond and acceptance within 60 days of appointment). 27 Neb. Rev. Stat. § 30-2445 (Reissue 2016). 28 See In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 (2021). 29 Id. at 11, 958 N.W.2d at 668. - 991 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 stated that “[o]nly after a written acceptance is filed and the guardian submits to the personal jurisdiction of the court will letters of guardianship be issued by the court.” 30 But in that case, because the parents never accepted the court’s appointment, no letters issued. In rejecting the assignment of error, we stated that “the appointment they assign as error was never completed and cannot be completed without their voluntary acceptance.” 31 The record is devoid of any statement of acceptance filed by Kelly. To the contrary, she filed an objection “as nominated personal representative” to the application for informal appointment of personal representative in intestacy and asked the court to dismiss the application. At oral argument, Feik conceded that no acceptance had been filed by Kelly. [12-14] As we stated with respect to a private guardian, it follows that one who is not willing to serve as a personal representative cannot be compelled to accept such an appointment. Without acceptance by one appointed personal representative, there can be no qualification. 32 And the Nebraska Probate Code requires qualification of a personal representative before the issuance of letters. 33 In other words, in the absence of qualification, the issuance of letters as part of the appointment proc­ ess is not authorized by statute. Here, the court issued letters to Kelly without her qualification. Because this action was not statutorily authorized, we reverse the order directing issuance of letters and the letters issued in accordance with that order, and remand the cause for further proceedings. [15] We express no opinion on the validity or effect of any actions taken in reliance upon the letters issued to Kelly. 30 Id. 31 Id. at 11-12, 958 N.W.2d at 669. 32 See § 30-2444. 33 See §§ 30-2403, 30-2420, and 30-2444. - 992 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 Such questions may well exist, but they are beyond the scope of the present probate proceeding. In the absence of an actual case or controversy requiring judicial resolution, it is not the function of the courts to render a judgment that is merely advisory. 34 And to the extent that the reasoning of the county court conveyed in an order within the probate proceeding may seem to express an opinion on matters outside the scope of the appointment proceeding itself, we reverse those portions of the probate court��s order. Statute of Limitations Kelly also argues that § 30-2408 prohibited the commencement of the appointment proceeding. The parties agree that it was commenced more than 3 years after Severson’s death and that no prior appointment or probate proceeding had occurred. But Kelly contends that no exception under § 30-2408 applies while Feik relies upon the exception in subsection (4), which states that “an informal . . . appointment proceeding may be commenced thereafter if no formal or informal proceeding for probate or proceeding concerning the succession or administration has occurred within the three-year period, but claims other than expenses of administration may not be presented against the estate.” We agree with Feik. [16] The exception applies because no such proceeding had occurred within the 3-year period. Statutory language 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 unambiguous. 35 Over a decade ago, we declared that “[§] 30-2408 clearly permits an informal appointment proceeding to be commenced more than 3 years after the decedent’s death ‘if no formal or informal proceeding for probate or proceeding concerning the succession or administration has occurred 34 State ex rel. Peterson v. Ebke, 303 Neb. 637, 930 N.W.2d 551 (2019). 35 In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007). - 993 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 within the three-year period.’” 36 Thus, a proceeding could be commenced here to appoint a personal representative. We read the clause regarding “claims other than expenses of administration” as limiting the scope of the proceeding rather than its commencement. 37 Remaining Assignments of Error [17] Because we reverse the order directing issuance of letters of personal representative and remand the cause for further proceedings, we need not consider Kelly’s other assigned errors. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 38",jurisdiction
+672,4540988,1,4,"We have two sets of appeals: those taken following the June 18, 2018, orders and those taken after the district court awarded attorney fees to the relators. The first appeals were 7 § 84-712.01(3). 8 Id. 9 Aksamit Resource Mgmt., supra note 5. 10 Id. 11 Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 N.W.2d 100 (1998). 12 See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). - 789 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 premature. 13 We dismiss those appeals for lack of jurisdiction. We have jurisdiction over the second set of appeals.",jurisdiction
+673,2429625,1,1,"When the sufficiency of the evidence is challenged, we affirm if there is substantial evidence to support the verdict. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force to compel reasonable minds to reach a conclusion that is beyond suspicion and conjecture. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). We have long held that circumstantial evidence alone may be sufficient to support a conviction. Hurvey v. State, 298 Ark. 289, 766 S.W.2d 926 (1989). Such evidence must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Pemberton v. State, 292 Ark. 405, 730 S.W.2d 889 (1987). We review the evidence in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992); Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). There is ample evidence to support the verdict in this case. Shell casings from the murder weapon were found in Smith's vehicle and a vehicle very similar to his was seen leaving the scene of the murder at a time shortly after the shots were heard. Smith's explanation for the recent wound in his leg, which he did not even mention to persons he spoke with after he allegedly shot himself, was absurd, and the jury obviously chose not to believe his story. The credibility of witnesses is a fact question for the trier of fact. The trier of fact alone determines the weight to be given the evidence, and may reject or accept any part of it. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). Credibility determinations will not be disturbed on appeal when there is substantial evidence to support the fact finder's conclusion. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).",sufficiency of the evidence
+674,2231771,3,3,"Finally, Barth relies on virtually identical arguments to argue that the jury verdict was against the manifest weight of the evidence and that his motion for judgment notwithstanding the verdict should have been granted. He correctly notes the standard of review for a ruling on a motion for judgment n.o.v. This court must determine whether the evidence, when viewed in the light most favorable to the nonmovant, so overwhelmingly favors the moving party that no other verdict based on the evidence could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967). As the factual bases for his claims, Barth cites his physical and financial condition as well as his conduct during State Farm's investigation. At the time of the fire, he was 58 years old, wheelchair-bound, and required a ventilator because he had polio in his youth. Nonetheless, Barth states he was financially stable, with a net worth of over $70,000, with $44,000 in home equity and $27,000 in liquid assets. Barth argues that State Farm offered no plausible theory for why he would have been involved in the burning of his home over disputed credit card bills under these circumstances. Barth contends instead he was victimized by two convicted felons, William Penn and William Burmeister, who misappropriated his credit cards as well as the cash he gave them to pay his bills. When he made the misstatements, he was unaware of the extent and full effect of those misappropriations. In addition, he simply forgot during his recorded statement to mention his American Express account, one of the credit cards misused by the two felons. He claims the error was timely corrected when he provided State Farm with a copy of his credit report noting the account and its balance. State Farm then deprived him of an opportunity to correct his prior omission orally by not asking about the account during his examination under oath. Similarly, Barth corrected his original statement that he could not get a cash advance the evening of the fire because he used the wrong PIN after he found out the real reason: Penn and Burmeister had overdrawn his card with fraudulent cash advances. At his first recorded statement, Barth accurately told State Farm his satellite television service had been disconnected due to nonpayment. Barth also believed at that time that his mortgage payments were current because he did not yet know that Penn had misused the money Barth had given him for the payment. Moreover, State Farm already knew from its contacts with Barth's bank that the mortgage payment was at least a month late. Barth claims that he was not required to prove who committed the arson and that State Farm did not meet the burden of proving its second affirmative defense. Based on this evidence and argument, Barth concludes that the jury's verdict was against the manifest weight of the evidence and that his motion for judgment n.o.v. the verdict should have been granted. On the merits of these issues, State Farm counters that the materiality of Barth's statements and actions are questions of fact for the jury ( Passero v. Allstate Insurance Co., 196 Ill.App.3d 602, 610, 143 Ill.Dec. 449, 554 N.E.2d 384 (1990)) and argues that additional evidence presented at trial supports the verdict. The record reveals that, at the scene of the fire, the fire investigator from the sheriff's office immediately suspected arson and approached Barth, Penn, and Burmeister, who were in Barth's car. The three men indicated that they needed to leave because they had some things to do, without identifying those things. The fire investigator described Barth as agitated and upset with somebody in the car and with everybody else around him. He did not interview Barth later due to restrictions imposed by Barth's attorney that the investigator believed were unacceptable. The bank employee working on Barth's mortgage account also testified, stating that he began calling Barth about late payments in November 2002 and made numerous calls throughout that winter and spring. At the time of the fire on June 2, 2003, Barth was two months behind on his mortgage payments. He was also behind on his utility payments. In contrast, Barth told State Farm his financial situation had stabilized by that time, after he had experienced financial problems the prior fall. Barth also misstated the status of his American Express account, opened in February 2003. He had authorized Penn to use the card for specific purchases at that time and knew Penn had not returned the card. Nonetheless, Barth did not make any payments on the account before the fire. Although American Express called him in late May about the large account balance, Barth did not mention the account in his June recorded statement. Moreover, Barth never reported any misuse of his credit cards to the police. The special verdict submitted by the jury found, in relevant part, that State Farm proved by clear and convincing evidence that: (1) Barth concealed or misrepresented a fact or circumstance, or made a false statement, relating to the insurance at issue    or misrepresented any material fact to State Farm either before or after the claim; (2) the fact concealed or misrepresented, or the subject of the false statement, was material; (3) the concealment, misrepresentation, or false statement was made to State Farm or their agents; (4) the concealment, misrepresentation, or false statement was made knowingly, willingly, and with intent to deceive State Farm.  (Emphasis added.) To reverse a jury verdict as against the manifest weight of the evidence, we must find that: (1) it is unreasonable, arbitrary, and not based on the evidence; or (2) the opposite conclusion is readily apparent. Maple v. Gustafson, 151 Ill.2d 445, 454, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992). Here, the evidence supports conflicting inferences about Barth's intentions in making the misrepresentations as well as about their materiality to State Farm's investigation. The jury is free to accept some evidence and reject others, as well as to determine the credibility of the witnesses and weigh their testimony. Maple, 151 Ill.2d at 452, 177 Ill.Dec. 438, 603 N.E.2d 508. We cannot say that the jury's determination in this case was unreasonable, arbitrary, and not based on the evidence presented or that the opposite conclusion is readily apparent. Thus, the verdict was not against the manifest weight of the evidence and was properly affirmed by the appellate majority. As for Barth's alternative argument that the trial court should have granted his motion for judgment n.o.v., we note that the test for that claim is even more stringent. Under Pedrick, a court may not grant the motion unless the evidence, when viewed in the light most favorable to the nonmovant, so overwhelmingly favors the moving party that no other verdict based on the evidence could stand. Pedrick, 37 Ill.2d at 510, 229 N.E.2d 504. Having already decided that the jury's verdict was not against the manifest weight of the evidence, we are confident that the appellate court did not err in affirming the trial court's denial of Barth's motion for judgment n.o.v.",sufficiency of the evidence
+675,2789655,1,2,"After two buyers closed on their purchase of a building that had formerly been leased as a dental clinic, they discovered that the interior doors had been removed. They sued the seller. The county court entered judgment for the buyers and awarded damages based on the cost they paid for replacement doors. The district court affirmed. Upon further appeal, we conclude that the doctrine of merger did not bar their claim and that the doors were fixtures rather than trade fixtures. We affirm.",introduction
+676,2343191,1,3,"
+Appellant was tried in August and September 1998 for conduct that he committed in October 1991. On July 15, 1998, new capital sentencing provisions of the 1998 General Assembly's omnibus crime legislation, HB 455, took effect, and a sentence of life without possibility of probation or parole (LWOP) became a sentencing option in capital cases. KRS 446.110 provides: If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. In a pretrial motion submitted by defense counsel, Appellant advised the trial court of the change in the law, stated that [t]he accused hereby consents to application of the 1998 amendments to KRS 532.030, and moved the trial court to include LWOP as a sentencing option available to the jury if the trial proceeded to a capital sentencing phase. As was the case in Furnish v. Commonwealth, Ky., 95 S.W.3d 34, 50-51 (2002), cert. denied ___ U.S. ___, 124 S.Ct. 115, 157 L.Ed.2d 80 (2003), the trial court declined to instruct the jury regarding LWOP because it concluded that the previously available capital sentencing options were not clearly mitigated by the new penalties. A majority of this Court, however, subsequently reached the opposite conclusion when certifying the law in Commonwealth v. Phon, Ky., 17 S.W.3d 106, 108 (2000) ([U]pon the unqualified consent of the defendant, a sentence of life without parole may be lawfully imposed for capital crimes committed before July 15, 1998.). The Commonwealth now argues that although the trial court identified an erroneous basis for its ruling below, it correctly declined to instruct the jury on LWOP because the record does not contain evidence of Appellant's personal and unqualified consent to an LWOP instruction. In Furnish , this Court rejected the Commonwealth's identical argument, and we do so again today. In response to the Commonwealth's suggestion that KRS 446.110 permits trial courts to exercise discretion whether to instruct on LWOP in capital cases, we recognize that such an interpretation would permit inconsistency in capital sentencing procedures that is incompatible with due process. Accordingly, we hold that Appellant's motion satisfied the `unqualified consent' requirement we established in Phon, and he was entitled to receive an instruction on life without parole. Furnish, 95 S.W.3d at 51. Compare Garland v. Commonwealth, Ky., 127 S.W.3d 529, 537-38 (2003) (where the defendant made no request for an LWOP instruction). We find no merit in the Commonwealth's contention in its brief that the instructional error in this case was harmless. Accordingly, we reverse Appellant's death sentence and remand this case to the trial court for a new capital sentencing phase. Our reversal of Appellant's death sentence and remand for a new capital sentencing phase renders moot or partially moot several of Appellant's allegations of error. Accordingly, this opinion will not address Appellant's boiler-plate objections to the death penalty, i.e., # 53 (Death Sentence Disproportionate to Co-Indictee's Sentence), # 54 (Kentucky's Disproportionality Review is Unconstitutional), # 55 (Residual Doubt Bars Death Sentence), # 56 (Constitutional Challenges to Death Penalty), and # 58 (No Access to Data), which Appellant may assert upon remand and then pursue upon appeal if he again receives a death sentence. Nor will we address other allegations of error that we would characterize as unique to the capital sentencing phase at Appellant's previous trial, i.e., # 9 (Immediate Sentencing of St. Clair), # 10 (Exclusion of Sentencing Hearing Avowals), portions of # 27 (Improper Penalty Phase Closing Argument), # 32 (Denial of Motion to Recuse), # 49 (Commonwealth Hugging Victim's Family After Guilty Verdict), and # 52 (Coerced Death Sentence). We address each of Appellant's remaining allegations of error, but address the ones that relate exclusively to capital sentencing only to the extent that they may be relevant to proceedings upon remand. Although we will identify each argument by both subject matter and number, we have reorganized Appellant's claims according to the nature of the asserted error rather than its sequential place in Appellant's brief, and we will address the allegations in our reorganized order.
+
+Appellant was indicted in February 1992 and was extradited from Oklahoma to Kentucky to stand trial under this indictment in May 1995. Appellant's trial did not begin, however, until August 18, 1998. Appellant argues that the Commonwealth of Kentucky's delay in bringing him to trial violated both: (1) statutory provisions of the Interstate Agreement on Detainers (I.A.D.), KRS 440.450, and (2) his federal and state constitutional rights to a speedy trial. Appellant thus argues that this Court should reverse his conviction and remand this case to the trial court with instructions to dismiss the indictment. KRS 440.450(Art. IV(3)) provides: In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. (Emphasis added). Thus, [i]f the prosecuting authority initiates proceedings, the prisoner must be tried within 120 days after his arrival in the jurisdiction seeking to try him[,] Roberson v. Commonwealth, Ky., 913 S.W.2d 310, 312 (1994), and if the time limitations are violated, the trial court is compelled to dismiss the charges with prejudice. Id. at 313; Lovitt v. Commonwealth, Ky., 592 S.W.2d 133 (1979). In this case, however, we agree with the Commonwealth that the I.A.D.'s 120-day clock provision was inapplicable to this indictment. Kentucky did not utilize the I.A.D. to obtain custody of Appellant. Instead, Kentucky obtained custody of Appellant by extraditing him pursuant to an executive agreement authorized by the Uniform Criminal Extradition Act (U.C.E.A.). See KRS 440.200(1). Appellant correctly observes that the I.A.D.'s 120-day clock may govern even in cases where the receiving state ultimately obtains custody of the accused through means other than the I.A.D. because the United States Supreme Court has held that the I.A.D.'s time limit applies whenever a requesting state initiates the disposition of charges underlying a detainer it has previously lodged against a state prisoner[,] United States v. Mauro, 436 U.S. 340, 364, 98 S.Ct. 1834, 56 L.Ed.2d 329, 349 (1978). However, given that Appellant has not cited us to any evidence in the record to show that the Commonwealth of Kentucky ever filed a detainer [3] with Oklahoma authorities, we hold that the I.A.D.'s 120-day clock was inapplicable to this indictment. The Sixth Amendment to the United States Constitution guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.] Section Eleven of the Kentucky Constitution likewise provides that an accused shall have a speedy public trial by an impartial jury of the vicinage. This Court analyzes allegations of speedy trial right violations under the four-factor test outlined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which requires an examination of: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the defendant caused by the delay. This Court has observed, however, that [n]o single one of these factors is ultimately determinative by itself, Gabow v. Commonwealth, Ky., 34 S.W.3d 63, 70 (2000), and can be determined only on an ad hoc balancing basis[.] Id. (quoting Barker v. Wingo, 407 U.S. at 514, 92 S.Ct. at 2184). We conclude that the delay in bringing Appellant to trial did not violate his rights to a speedy trial. The first factor of the inquiry requires a showing of a presumptively prejudical delay, and we conclude that the approximately six and one-half (6 1/2) years between indictment and trial in this case is sufficient to trigger further inquiry. See Barker v. Wingo (holding that a five (5) year delay in a murder prosecution was presumptively prejudicial); Gabow (thirty-four (34) month delay in murder case). And, jumping ahead slightly to the third factor, it is clear that, after he was extradited to Kentucky — but, significantly, not before — Appellant affirmatively and repeatedly asserted his right to a speedy trial in the trial court. Although Appellant's assertions of his rights are `entitled to strong evidentiary weight' in deciding whether the defendant's rights were violated, Dunaway v. Commonwealth, 60 S.W.3d at 571 (quoting Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117), we find no speedy trial violation under the facts presented because: (1) the majority of the delay occurred while Appellant was incarcerated in Oklahoma and prior to any assertion by Appellant of his right to a speedy trial; (2) the lion's share of the remaining delay was attributable to defense-requested continuances; and (3) Appellant's unwarranted assertions fail to demonstrate that he suffered prejudice as a result of this additional delay. Just over seventy-eight (78) months passed between the time Appellant was indicted in February 1992 and the time his trial commenced in August 1998. Fully half of this time — thirty-nine months (39) — elapsed before Appellant was extradited from Oklahoma to Kentucky. During the remaining thirty-nine (39) months, five (5) trial dates were rescheduled — four (4) at the request of the defense and one (1) at the request of the Commonwealth: •The originally scheduled trial date of August 14, 1995 was rescheduled for May 7, 1996 after Appellant's initial trial attorneys, Ray Clooney and Richard Receveur, filed a motion to withdraw as counsel of record less than a week prior to the scheduled trial date because of a Department of Public Advocacy Policy that prevented it from contracting with Clooney for his services because he had filed to run for public office and substitute counsel Ronald Riggs informed the trial court that he required at least six months to obtain mitigation evidence from Oklahoma. •The May 7, 1996 trial date was rescheduled for January 1, 1997 after Riggs filed a motion to withdraw (citing a total, complete, and severe breakdown of communications between counsel and the Defendant) and substitute counsel, Catherine Rao-Kamenish and Mary Jo Wicker, advised the court that their schedules would not permit a death penalty trial until December or the following year. •The January 14, 1997 trial date was rescheduled for August 12, 1997, without objection from the defense, on the Commonwealth's motion to continue because the lead prosecuting attorney had recently left the Office of the Attorney General to accept a position as an Assistant United States Attorney. •The August 12, 1997 trial date was rescheduled for April 21, 1998 without objection from the defense after Rao-Kamenish and Wicker moved to withdraw because Appellant had begun treating the attorney-client relationship as amorous, e.g. , composing poems which professed his romantic intentions towards his counsel and sending them artwork that depicted naked women. •The April 21, 1998 trial date was rescheduled to August 18, 1998 at the defense's request to allow it to investigate an incriminating statement allegedly made by Appellant to Kincaid while Appellant was incarcerated in Oklahoma. Appellant's trial ultimately began on August 18, 1998. Appellant argues that the Commonwealth bears the responsibility for the majority of the post-indictment delay, specifically: (1) the thirty-nine (39) months that Appellant remained incarcerated in Oklahoma before the Commonwealth obtained custody of him; (2) the postponement of the original trial date, which Appellant contends was unnecessary; (3) the postponement of the January 14, 1997 trial date at the request of the Commonwealth; and (4) the postponement of the April 21, 1998 trial date, which Appellant contends was made necessary by the Commonwealth's failure to provide timely discovery. When a person under indictment is incarcerated in another jurisdiction,  [u]pon ... demand [the Commonwealth has] a constitutional duty to make a diligent, good-faith effort to obtain custody of that person for purposes of trial. Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 579-80, 21 L.Ed.2d 607, 614 (1969) (emphasis added). See also Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). Appellant, however, not only failed to make such a demand upon the Kentucky authorities, but actively resisted extradition by filing a habeas corpus action. It is clear from the record in this case that Appellant raised no issue with respect to his speedy trial rights until after he was extradited to Kentucky. Additionally, the Commonwealth's capital sentencing phase evidence demonstrates that, before the extradition agreement was signed, the State of Oklahoma tried Appellant on two (2) outstanding murder charges in February 1994, which suggests that the delay in obtaining custody of Appellant may not have been solely attributable to a lack of effort on the part of the Commonwealth of Kentucky. Accordingly, Appellant's speedy trial claim hinges on the thirty-nine (39) months of delay that occurred after he was returned to Kentucky. We observe that a substantial portion of those delays were at the request of or with the tacit consent of the defense. Even if we were to resolve every whose responsibility? dispute as to the post-extradition delays in Appellant's favor, however, it is clear that Appellant has failed to demonstrate prejudice from this post-extradition delay. And, if not incarcerated pending trial in Kentucky, Appellant would have been incarcerated in Oklahoma under his life sentences without possibility of parole, and we find no merit in Appellant's unsupported allegations that the conditions of his imprisonment in Kentucky demonstrate prejudice associated with the delay. We find equally unpersuasive Appellant's conclusory assertion that he suffered anxiety from the delay in a resolution of his case. See Preston v. Commonwealth, Ky.App., 898 S.W.2d 504, 507 (1995). Although Appellant argues that his ability to mount a defense was impaired by the delay, we have examined each of Appellant's specific complaints and have determined that they fail to demonstrate any identifiable prejudice from the additional delay that occurred after he was transported to Kentucky. Accordingly, [w]e conclude that the delay in bringing this case to trial does not justify `the unsatisfactory severe remedy of dismissal.' Gabow, 34 S.W.3d at 70 (quoting Barker v. Wingo, 407 U.S. at 522, 92 S.Ct. at 2188).
+Appellant argues that his ability to communicate confidentially with his trial counsel on a regular basis was impeded by his pretrial incarceration in facilities first in the Jefferson County Jail and then the Kentucky State Penitentiary, where he was transferred some time between October 17, 1997 and March 1998 apparently without a court order and, in fact, in contravention of the trial court's order directing that Appellant be transferred to the nearby Hardin County Detention Center as soon as space was available. Appellant's brief identifies no motion for relief with respect to this issue that was denied by the trial court. In fact, the record reflects that, three (3) weeks before trial, when Appellant's trial counsel moved the trial court to order Appellant's transfer to the Hardin County Detention Center, the trial court granted the motion with no objection from the Commonwealth, Accordingly, [t]he trial judge responded in a reasonable fashion to defense requests, Epperson v. Commonwealth, Ky., 809 S.W.2d 835, 841 (1990), and [t]here was no deficiency ... compromising the right of ... appellant to effective counsel. Id. We hold that the trial court properly addressed the concerns raised by Appellant, and we find no error.
+The trial court properly denied Appellant's request for funds to retain an independent psychiatrist because Appellant failed to demonstrate that such funds were reasonably necessary to the defense. Appellant's motion for funds contained only conclusory assertions that [e]mployment of a forensic psychiatrist is an absolute necessity because this Defendant has already been convicted in the state of Oklahoma of four murders and that it would be ineffective assistance of counsel not to have this Defendant ... evaluated by a competent Forensic Psychiatrist in order to determine the mental health defenses, including mental illness and the IQ of the Defendant. When the motion came before the court for a hearing, Appellant's trial counsel stated that he had spoken with a psychologist in Oklahoma that did the work-up on Mr. St. Clair, but counsel gave no indication of the substance of that conversation — either at that time or subsequently. In denying the request for funds, the trial court observed that you're telling me that you believe you need one but don't know why you need one and indicated that if you can convince me of a need ... I'll reconsider. The trial court's ruling was correct. [O]ur review of a trial court's denial of funds pursuant to KRS 31.110 is limited to the reasons actually presented to the trial court. Dillingham v. Commonwealth, Ky., 995 S.W.2d 377, 381 (1999). Appellant had no right to a psychiatric fishing expedition at public expense, Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384, 387 (1985). There is no violation of due process in the refusal to provide for expert witnesses when the defendant offers little more than an undeveloped assertion that the requested assistance would be beneficial. Simmons v. Commonwealth, Ky., 746 S.W.2d 393, 395 (1988) (citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)). See also McKinney v. Commonwealth, Ky., 60 S.W.3d 499, 505 (2001).
+We find no merit in Appellant's unpreserved allegation that the Office of the Attorney General improperly prosecuted his indictment. Section 93 of the Kentucky Constitution provides that the duties and responsibilities of Constitutional State Officers, including the Attorney General, shall be prescribed by law. Accordingly, our statutes make the Attorney General the chief law officer of the Commonwealth[.] KRS 15.020. And, [t]o encourage cooperation among law enforcement officers [,] ... to provide for the general supervision of criminal justice [,] ... and ... to maintain uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the Commonwealth, Commonwealth v. Wilson, Ky., 622 S.W.2d 912, 914 (1981), the General Assembly has enacted KRS 15.700, which establishes a unified integrated prosecutor system in Kentucky with the Attorney General as chief prosecutor of the Commonwealth. Given that the Attorney General may act as prosecutor ... when so directed by statute, Graham v. Mills, Ky., 694 S.W.2d 698, 701 (1985), the General Assembly has enacted a number of statutory provisions that authorize the Attorney General to prosecute criminal actions under certain circumstances. See, e.g. KRS 15.190 (when requested to do so in writing by a County or Commonwealth Attorney); KRS 15.200 (when requested to do so in writing by other identified officers); KRS 15.225 (prosecution of county financial administration); KRS 15.231 (theft of identity and trafficking in stolen identity cases); KRS 15.240 (violations by abortion facilities); KRS 15.242-15.243 (enforcement of election laws); KRS 15.715 (when authorized to do so by the Prosecutors' Advisory Council). By authorizing the Attorney general to direct the investigation and prosecution of criminal actions only in given, limited situation[s], Hancock v. Schroering, Ky., 481 S.W.2d 57, 61 (1972), [t]he legislature has provided a check to prevent the Attorney General from usurping and pre-empting the office of Commonwealth's attorney[.] Id. Although Appellant is correct that the record in this case does not demonstrate the means by which the Attorney General assumed the prosecution of this indictment, the record is equally clear that neither Appellant nor any local prosecuting authority raised any objection to the Attorney General's role in this prosecution. Of course, the issue concerns the Attorney General's authority to prosecute this indictment would have been resolved conclusively in the trial court if Appellant had voiced any objection because the Attorney General's office could have identified its authority on the record (and, if prosecution was assumed pursuant to KRS 15.190 or KRS 15.200, included within the record the written request that they do so). Accordingly, while we observe that in future cases where the Attorney General assumes the role as lead prosecutor it would be a better practice for the Attorney General's office to make a record of its authority to prosecute an indictment, we hold that a presumption of regularity attaches in such cases — particularly when no objection is raised — and we are unwilling to assume wrongdoing from the silent record in this case. As such, we hold that the office of the Attorney General properly prosecuted this case against Appellant.
+
+The trial court ruled consistently with this Court's prior precedent, Sanborn v. Commonwealth, Ky., 754 S.W.2d 534, 546 (1988) and was well within the scope of his discretion to control the scope of voir dire examination, Jacobs v. Commonwealth, Ky., 58 S.W.3d 435, 444 (2001), when it denied Appellant's request that all prospective jurors be required to complete a four (4) page, forty-one (41) question Juror's Personal Data Questionnaire.
+Appellant argues that the trial court violated RCr 9.70 and committed reversible error at the beginning of individual voir dire when, before dividing the prospective jurors into groups scheduled to return on later days for individual voir dire, it failed to admonish them not to read about the case. According to Appellant, on the second day of individual voir dire, a local newspaper, The Pioneer News, ran an editorial regarding the trial that addressed the additional security precautions involved. The individual voir dire examination revealed that a number of the prospective jurors had either read the article or overheard others talking about it. Appellant raised no objection at the times he claims the admonition should have been given, but moved the trial court for a mistrial and asked it to strike the jury panel when prospective jurors revealed during individual voir dire that they were aware of the article. RCr 9.70 provides: The jurors, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit anyone to speak to, or communicate with, them on any subject connected with the trial, and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, nor form, nor express any opinion thereon, until the cause be finally submitted to them. This admonition must be given or referred to by the court at each adjournment. Although trial courts have the discretion to admonish prospective jurors on these subjects early in the voir dire process, and we believe it would be the better practice to do so, we agree with the Commonwealth that RCr 9.70 requires this admonition only after the jury has been selected and sworn to try the case. The term jurors as utilized in RCr 9.70 refers to the members of a selected and sworn jury. Compare RCr 9.36(2) (referring to prospective jurors in context of challenges for cause); RCr 9.38 (referring to prospective jurors in context of voir dire examination). In fact, the Administrative Procedures of the Court of Justice (Ad.Proc.) Part II, § 31 require this admonition [i]f the jury is permitted to separate [.] (emphasis added). To the extent that Schweinefuss v. Commonwealth, Ky., 395 S.W.2d 370, 375 (1965), suggests that an RCr 9.70 admonishment is required at this stage of the proceedings, it is hereby overruled. Accordingly, we hold that the trial court was not required to give the RCr 9.70 admonishment to the prospective jurors at the conclusion of the first day of voir dire — or at any time before the jury was sworn — and the trial court thus properly denied Appellant's motion for a mistrial and to strike the jury panel, which were premised on the trial court's failure to give the admonishment. In any event, we agree with the Commonwealth that, under the facts of this case, Appellant has the burden to show actual jury prejudice, Byrd v. Commonwealth, Ky., 825 S.W.2d 272, 274-75 (1992), and that Appellant has failed to demonstrate how he was prejudiced from either the trial court's failure to admonish the jury not to read about the case or the fact that certain jurors apparently were exposed to media coverage. The trial court, the prosecution, and defense counsel each conducted extensive individual voir dire in part to determine whether any press accounts to which prospective jurors may have been exposed might influence their decisions in the case. In Part III(C)(4), infra , we address Appellant's arguments as to the jurors and prospective jurors whom Appellant asserts the trial court should have excused because of their exposure to pretrial publicity. With regard to Appellant's speculative allegation that other prospective or actual jurors might have been exposed to the publicity but weren't discovered, we find no actual prejudice. The trial court did not err when it denied Appellant's request to question an undefined number of deputy sheriffs under oath about an incident that involved a television news reporter who was speaking with a deputy sheriff in the presence of prospective jurors, which allegedly occurred during the first afternoon of individual voir dire. Appellant was allowed to voir dire each member of the jury as to whether they had read about the case in the newspaper, seen television news coverage about it, or overheard other people discussing it. We hold that this voir dire was a more-than-sufficient mechanism to ferret out prospective jurors whose impartiality may have been compromised by the publicity they encountered.
+Although Appellant raised no objection at the time of trial, he argues on appeal that the trial court violated his fundamental constitutional guarantees when it excused prospective jurors whose personal beliefs prevented them from imposing a sentence of death. This argument, which we see raised in virtually every capital case appealed to us, has been consistently rejected by the United States Supreme Court, Hodge v. Commonwealth, Ky., 17 S.W.3d 824, 838 (2000) (collecting cases), and by this Court, which has repeatedly and consistently held [it] to be without merit. McKinney, 60 S.W.3d at 512. It is a fully adequate response to Appellant's argument to state simply that: [d]eath qualification of jurors is not unconstitutional. Caudill v. Commonwealth, 120 S.W.3d 635, 678 (2003). Appellant also argues that the trial court erroneously limited the scope of individual voir dire examination. We find the scope of voir dire in this case constitutionally adequate. The trial judge has broad discretion in the area of questioning on voir dire[,] Woodall v. Commonwealth, Ky., 63 S.W.3d 104, 116 (2001) (citing Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985)), cert. denied, 537 U.S. 835, 123 S.Ct. 145, 154 L.Ed.2d 54 (2002), and, in particular, [t]he extent of direct questioning by counsel during voir dire is a matter within the discretion of the trial court. Furnish, 95 S.W.3d at 44. During individual voir dire, the trial court asked the following questions, with slight variations from time to time and follow-up questions as necessary, of each prospective juror: If the Defendant is found guilty of Murder as charged and of certain aggravating circumstances the Commonwealth intends to seek the death penalty. However, there are a range of penalties the jury may consider. They include the death penalty, imprisonment for life without the benefit of parole for twenty-five years, imprisonment for life, and a term of imprisonment of not less than twenty years. Would your personal beliefs prevent you from imposing any of those four punishments, if the court instructed you to consider then and if warranted by the evidence? Would you automatically vote either for or against: Death? Life without the possibility of consideration of parole for at least 25 years? Life imprisonment? A term of not less than 20 years in prison? Mitigation is evidence about a person's character, background, or circumstances that may be considered as a reason for imposing a less severe punishment than otherwise would be imposed. A mitigating circumstance is the opposite of an aggravating circumstance, which may be a reason for imposing a more severe punishment than otherwise would be imposed. Would you consider any evidence offered to you in mitigation of punishment, if instructed to do so by the court? Would you consider any evidence offered in aggravation of punishment, if instructed to do so by the court? Have you read or heard anything about this case before today? Has anything you may have read or heard caused you to form an opinion concerning this case? Are you able and willing to disregard anything you may have read or heard, and decide this case solely on the evidence introduced during the trial? Appellant submits a list of topics upon which he attempted to question prospective jurors but was prevented from doing so when the trial court sustained objections from the Commonwealth. We find that the trial court properly curtailed questions that were not proper and only confused the panel. Furnish, 95 S.W.3d at 44. The trial court was well within its discretion to prohibit Appellant from repeating questions already posed by the trial court, Woodall, 63 S.W.3d at 118, inquiring generally how prospective jurors felt about the death penalty, Id. at 117, what they considered a proper case for the death penalty, Hodge, 17 S.W.3d at 839, and whether they believed fewer heinous crimes would occur if the death penalty were employed more often. Woodall, 63 S.W.3d at 117. The mere fact that more detailed questioning might have somehow helped the accused in exercising peremptory challenges does not suffice to show abuse of the discretion in conducting the examination. Id. at 116. Here, [b]oth parties were able to thoroughly voir dire the panel[,] Furnish, 95 S.W.3d at 44, and we find no error in the trial court's rulings as to the scope of individual voir dire questioning.
+Appellant argues that erroneous rulings on his challenges for cause denied him the full use of his peremptory challenges. Appellant identifies ten (10) prospective jurors that he argues the trial court should have excused because of their alleged exposure to pretrial publicity or their inability to consider the full range of authorized punishments, mitigation evidence, or to focus their full attentions on the case. We have examined the transcript of general and individual voir dire, and considering the voir dire as a whole, we conclude that the trial court did not abuse its discretion in overruling Appellant's challenges for cause. The question of whether a juror should be excused for cause is a matter within the sound discretion of the trial court. Thompson v. Commonwealth, Ky., 862 S.W.2d 871, 874 (1993). And, because the trial court occupies a superior position to evaluate whether, in light of all of the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict, Mabe v. Commonwealth, Ky., 884 S.W.2d 668, 671 (1994), a trial court's rulings on challenges for cause will not be reversed on appeal unless ... clearly erroneous. Foley v. Commonwealth, Ky., 953 S.W.2d 924, 932 (1997). See also Stopher v. Commonwealth, Ky., 57 S.W.3d 787, 797 (2001) (Giving due deference to the opportunity of the trial court to observe the demeanor of the prospective jurors and understand the substance of their answers to voir dire questions .... ), cert. denied, 535 U.S. 1059, 122 S.Ct. 1921, 152 L.Ed.2d 829 (2002); Mabe, 884 S.W.2d at 671. From our review of the record, we find no abuse of discretion in the trial court's rulings. The record here demonstrates a thorough voir dire examination by the court and counsel and carefully considered rulings on appellant's challenges for cause.... [W]e find no error in the court's rulings. Id.
+Appellant's contention that the Kentucky Rules of Criminal Procedure entitled him to one (1) more peremptory challenge than the Commonwealth received is simply incorrect. Because Appellant was the only defendant at trial and the trial court seated alternate jurors, the trial court properly permitted Appellant and the Commonwealth to exercise nine (9) peremptory challenges each. RCr 9.40; Furnish, 95 S.W.3d at 45-46; Stopher, 57 S.W.3d at 798. The trial court did not abuse its discretion when it declined Appellant's request for bonus challenges and allocated peremptory challenges in accordance with RCr 9.40. Furnish, 95 S.W.3d at 46; Stopher, 57 S.W.3d at 798.
+
+Appellant complains that much of the Commonwealth's evidence at trial was inadmissible evidence of bad character that demonstrated nothing more than Appellant's propensity towards criminal activity. Appellant primarily focuses upon the testimony as to his jail escape, burglary, and vehicle theft in Oklahoma and the ensuing manhunt, a kidnapping and vehicle theft in Colorado and a murder in New Mexico, and the shooting incident involving Trooper Bennett. We hold that no reversible error occurred from the introduction of any of the evidence identified in Appellant's brief. On appeal, the applicable standard of review is whether the trial court was clearly erroneous in its factual findings that permitted the Commonwealth to introduce the evidence. KRE 104(a). Cf. Parker v. Commonwealth, Ky., 952 S.W.2d 209 (1997). Here, the trial court properly permitted the Commonwealth to introduce evidence of Appellant's prior crimes and bad acts that were part of a continuous course of conduct in the form of a crime spree that began with Appellant's escape from an Oklahoma jail and ended with his flight from Trooper Bennett. KRE 404(b) provides: Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible: (1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or (2) If so inextricably intertwined with other evidence essential to the case that separation of the two could not be accomplished without serious adverse effect on the offering party. The trial court correctly ruled that testimony as to Appellant's criminal conduct in Oklahoma, Colorado, and New Mexico prior to his Murder of Brady as well as his post-murder shooting at and flight from Trooper Bennett was relevant and admissible under both KRS 404(b)(1) & (2). [I]dentification of the defendant as the perpetrator of the crime charged is an essential element in any criminal prosecution. Sanders v. Commonwealth, Ky., 801 S.W.2d 665, 674 (1990). In this case, the evidence concerning Appellant's crime spree, among other things: (1) proved how Appellant came into possession of the murder weapon, see Stanford v. Commonwealth, Ky., 793 S.W.2d 112, 116 (1990) (Appellant's theft of the gun used to commit the crimes charged and theft of the automobile to transport the victim to the point of the murder are so interwoven with the Commonwealth's proof as to render this evidence admissible despite the fact that it tended to prove collateral uncharged criminal conduct.); (2) demonstrated a motive for his abduction of Brady by illustrating Appellant's penchant for late-model small pickup trucks; (3) linked the items found in Brady's abandoned truck to Appellant; and (4) suggested similarities between the execution-style killings of Keeling in New Mexico and Brady in Kentucky that created a reasonable inference that Appellant had committed both murders. See Sanders, 801 S.W.2d at 674 (The record discloses a remarkable similarity between the respective crimes[.]) As such, [i]t is difficult to ignore that after his escape... appellant went on a crime spree and along the way murdered two victims. We have found no basis to disturb the trial court's rulings on the admission of the challenged evidence. Haight v. Commonwealth, Ky., 938 S.W.2d 243, 252 (1996). Nor do we agree with Appellant's contention that the Commonwealth committed overkill by presenting this other bad acts evidence in excess detail. If evidence of other crimes is admissible to show intent or identity or a common scheme or plan, the jury must weigh such evidence for what it is worth[.] Sanders, 801 S.W.2d at 675 (1990).
+Although we agree with Appellant's contention that the trial court erred when it permitted the Commonwealth to introduce a transcript of Stephens's testimony in a March 1992 preliminary hearing as to escape charges brought in Oklahoma against Appellant and Reese, we find the error harmless in this case because Appellant himself testified at trial to the same significant facts. At that preliminary hearing, Stephens testified that, on September 20, 1991:(1) he was laying there on the couch, watching the Michael Landon story on T.V. when he got up to turn the stove down and [Appellant] just come in right on top of me and knocked me flat in the floor; (2) Appellant then took a .357 Ruger off the end of the couch and held Stephens and his mother at gunpoint and [t]old me that if he had to he would blow my head off. That he didn't want to hurt me, but he would; (3) Appellant held the handgun pointed [r]ight square in my face and cocked the hammer on it several times; and (4) Reese and Appellant subsequently took the keys to a pickup truck from Stephens's mother and left in the pickup — with Reese driving and Appellant on the passenger side. The record reflects that Stephens died before Appellant's case came to trial, and it is thus likely that his prior sworn testimony would be admissible under the former testimony exception to the hearsay rule, KRE 804(b)(1). We need not address that question, however, because Appellant's crime was committed prior to the July 1, 1992 effective date of the Kentucky Rules of Evidence, and the transcript was thus not admissible at Appellant's trial unless it would have been admissible under evidence principles in existence prior to the adoption of [the Kentucky Rules of Evidence] KRE 107(b). See also Hodge, 17 S.W.3d at 842. And, under pre-KRE law, former testimony was not admissible at a criminal trial unless the testimony was given at a previous trial of the same offense ... on the same charge[.] RCr 7.22. See also Commonwealth v. Bugg, Ky., 514 S.W.2d 119, 121 (1974); Commonwealth v. Howard, Ky.App., 665 S.W.2d 320, 323 (1984). Accordingly, the trial court erred when it permitted the Commonwealth to introduce the transcript. To support his claim that he was prejudiced by the introduction of Stephens's former testimony, Appellant references the Commonwealth's trial court description of it as obviously a critical and key item of evidence in this matter. We find it clear from the context of the Commonwealth's statement that it believed the evidence to be significant because it placed the murder weapon in Appellant's hands. From our review of the record, however, we conclude that, regardless of whether the Commonwealth believed that the transcript was critical evidence at some point in the proceedings, the transcript became far less critical, if not insignificant, after Appellant himself took the stand and admitted that he had taken the handgun from Stephens's home. While Appellant described himself as somewhat of a reluctant participant in the events, he admitted that he had pushed Stephens down, grabbed the handgun, threatened Stephens with it, and left with it in his possession, and he further admitted that the testimony of Reese and Stephens to those same facts was accurate. In fact, Appellant's trial counsel had conceded as much during his opening statement in stating: There are some other facts that there is no dispute about.... They went to Texas together after stealing some items from a man named Stephens. From that point on there is going to be plenty of dispute. And the defense's culpability-phase closing argument closes the door on Appellant's suggestion that there was a substantial dispute at trial as to what had occurred at Stephens's home: We heard about the Stephens' house. No question Michael St. Clair and Dennis Reese burglarized that house. Broke in on Mr. Stephens and his mother. No question. No question Michael grabbed the gun and held Mr. Stephens at gun point. No question that they left out of there with a .357 Ruger and a green pickup truck that belonged to the Stephens[.] It is worthy of note that the only reference to Stephens's former testimony in the Commonwealth's culpability-phase summation concerned Appellant's possession of Stephens's handgun and the Commonwealth's argument further demonstrates the complete lack of factual dispute on that question: Let's look at the gun. Dennis Reese said the gun was in St. Clair's hand at the moment of the burglary; .357 Ruger Black Hawk. Vernon Stephens said that. Why Michael St. Clair even said that. Although Appellant's account of the events was not identical to Stephens's former testimony, the men agreed on the significant facts — e.g., that Appellant left in a pickup truck with Stephens's .357 Ruger Black Hawk handgun. In contrast, the differences in their accounts were minor and inconsequential. In his brief, Appellant fails to mention his own testimony regarding the crimes he committed at Stephens's home, and Appellant thus offers no indication of how he was prejudiced by the erroneous introduction of Stephens's former testimony. We discern no prejudice and find the error harmless. RCr 9.24.
+The trial court ruled that the Commonwealth could introduce Exhibits 37-A and 37-B (an enlargement of Exhibit 37-A), which were computer printouts from telecommunications provider General Telephone Company (GTE) that showed eleven (11) telephone calls made from a payphone at the Glendale Truck Stop in Glendale, Kentucky to Appellant's friends and family in Oklahoma. Special Agent Robert Chatham of the Security Services Division of GTE, testified that in order to determine call volume and to track income at coin-operated telephones GTE maintains computer records on calls made from pay telephones in its regular course of business from which we can ... specify what information we want and extract it in a more timely manner. Exhibits 37-A and 37-B represented an assist run from our local switch in the Elizabethtown office denoting long distance telephone calls to Oklahoma. Special Agent Chatham testified that he was the official custodian of records for GTE and explained that although the exhibits themselves were generated in response to a subpoena from the Commonwealth of Kentucky, all of the call information on here would have been available in one report or in one form or another within GTE. KRE 803(6) provides: The following are not excluded by the hearsay rules, even though the declarant is available as a witness: .... (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness.... Appellant argues that the exhibits were not admissible as business records because the exhibits themselves were not prepared in the regular course of GTE's business but were instead prepared in response to a subpoena. Accordingly, Appellant maintains that the fact that the exhibits were prepared in anticipation of litigation demonstrates that the method or circumstance of preparation indicate lack of trustworthiness. However, [t]his argument misconstrues the essence of Rule 803(6): so long as the original computer data compilation was prepared pursuant to a business duty in accordance with regular business practice, the fact that the hard copy offered as evidence was printed for purposes of litigation does not affect its admissibility. United States v. Hernandez, 913 F.2d 1506, 1512-1513 (10th Cir.1990). See also United States v. Fujii, 301 F.3d 535, 539 (7th Cir.2002) (airline check-in and reservation records compiled and presented in computer printouts prepared specifically for trial were admissible under FRE 803(6) because underlying records were compiled and maintained in ordinary course of business). Accordingly, the trial court did not abuse its discretion when it permitted the Commonwealth to introduce exhibits 37-A and 37-B.
+Five (5) days before trial, the Commonwealth moved the trial court to allow it to take the deposition of Appellant's ex-wife, Bylynn Van Zandt, for use at trial. According to the Commonwealth, Ms. Van Zandt, a resident of Oklahoma, was unable to travel to Kentucky for the trial because of complications with her pregnancy. Over Appellant's objection, the trial court granted the Commonwealth's motion, and counsel for both the Commonwealth and Appellant traveled to Oklahoma and took Ms. Van Zandt's deposition via video. Ms. Van Zandt testified that she had met up with Appellant and Reese in Texas shortly after their escape and had brought Appellant money and certain items — handcuffs, music tapes, and clothing. The Commonwealth used Ms. Van Zandt's testimony to link Appellant to the items found in Brady's pickup truck and thereby discredit Appellant's defense that he was not in Kentucky. At trial, the video was played twice for the jury — once during the Commonwealth's case-in-chief and again during the jury deliberations at the jury's request. Appellant raises a series of arguments with respect to Ms. Van Zandt's testimony, specifically: (a) the trial court erred by allowing the Commonwealth to introduce the video deposition without proving that Ms. Van Zandt was constitutionally unavailable to testify; (b) the Commonwealth's discovery violations in connection with Ms. Van Zandt's video deposition warrant a new trial; and (c) the trial court erred when it replayed Ms. Van Zandt's testimony during the jury's deliberations, but allegedly discouraged the jury from rehearing other witnesses' testimony. We find none of Appellant's arguments persuasive and we find no error in the trial court's rulings. As to Appellant's first argument, we observe that RCr 7.20(1) permits the introduction of deposition testimony at a criminal trial under certain circumstances: At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears: that the witness is dead; or that the witness is out of the Commonwealth of Kentucky, unless it appears that the absence of the witness was procured by the party offering the deposition; or that the witness is unable to attend or testify because of sickness or infirmity, or that the party offering the deposition had been unable to procure the attendance of the witness by subpoena.... While RCr 7.20(1) permits the introduction of deposition testimony if it appears ... that the witness is out of the Commonwealth of Kentucky, the United States Supreme Court held in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), that a witness's mere absence from the jurisdiction does not make that witness unavailable for trial. Id., 390 U.S. at 723, 88 S.Ct. at 1321, 20 L.Ed.2d at 259. Consequently, [r]eliance upon [RCr 7.20(1)] ... is not conclusive when a defendant claims a denial of his Sixth Amendment right of confrontation. Lovett v. Commonwealth, Ky., 103 S.W.3d 72, 82 (2003). See also id. at 84. In short, a witness is not `unavailable' for purposes of ... the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. Barber, 390 U.S. at 724-5, 88 S.Ct. at 1321-22, 20 L.Ed.2d at 260. This constitutional dimension of witness unavailability is reflected in the Kentucky Rules of Evidence. See Robert G. Lawson, The Kentucky Evidence Law Handbook, § 8.45(IV) at 433 (3d ed. Michie 1993) (A showing that would meet the requirements of [KRE 804] would simultaneously satisfy the constitutional dictates of the Confrontation Clause.) The Commonwealth argues that Ms. Van Zandt was unavailable to testify in person at Appellant's trial because of complications associated with her pregnancy at the time. KRE 804(a)(4) provides: `Unavailability as a witness' includes situations in which the declarant — (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity[.] At a hearing on the Commonwealth's motion seeking the trial court's authorization to take Ms. Van Zandt's deposition for presentation at trial, the Commonwealth explained that Ms. Van Zandt's attorney had contacted them regarding his client's medical condition and that Ms. Van Zandt's physician subsequently faxed a letter showing that she's not able — medically able to travel. The record reflects that the Commonwealth handed the physician's letter to Appellant's trial counsel. In a subsequent pleading, the Commonwealth explained that: [T]he witness is unable to travel to Kentucky for medical reasons. During the 2:30 p.m. August 13, 1998 telephone conference call, the Commonwealth stated that the information precipitating the request for a deposition had been received that same day. The Commonwealth had been informed that the witness is approximately 5½ months pregnant. She was reported to have been hospitalized that day for surgery associated with her pregnancy and, for the duration of trial, she is under a doctor's order not to travel.... The accuracy of this reported information can be explored during the deposition itself. The trial court's findings in its written order for Appellant's transport to the deposition in Oklahoma reflect that the trial court accepted the Commonwealth's proof as to Van Zandt's unavailability: it further appearing that it is necessary due to the medical condition of an essential witness to take the out of state deposition of said witness, Bylynn Van Zandt, and it further appearing that to adequately protect the defendant Michael Dale St. Clair's Sixth Amendment right of confrontation his appearance at that deposition is necessary.... Appellant argues that the failure of the Commonwealth to produce any sworn testimony as to Van Zandt's unavailability to testify at trial made the introduction of her deposition improper. It is black-letter law that [t]he ultimate question is whether the witness was unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness [and] ... the prosecution bears the burden of establishing that predicate, Ohio v. Roberts, 448 U.S. 56, 74-5, 100 S.Ct. 2531, 2543-44, 65 L.Ed.2d 597, 613 (1980). Cf. Justice v. Commonwealth, Ky., 987 S.W.2d 306, 313 (1998) (put [ting] the onus on the party offering evidence under KRE 804(b) to show that the witness was unavailable). However, the KRE 104(a) & (b) preliminary determination of [w]hether a witness is `unavailable,' ... is a matter committed to the sound discretion of the trial judge whose decision will not be reversed unless it is clearly unreasonable. Lovett, 103 S.W.3d at 83. See also Brooks v. Commonwealth, Ky., 114 S.W.3d 818, 821-22 (2003). And, the trial judge has the discretion to determine the sufficiency of the showing which would justify the reading of an absent witness'[s] testimony [.] Bruce v. Commonwealth, Ky., 441 S.W.2d 435, 437 (1969). Although the Commonwealth could have made a much cleaner record in this regard by tendering the letter from Ms. Van Zandt's physician to the court, filing with the Court an affidavit from either the physician or the prosecutor himself, see Brooks, 114 S.W.3d at 821, or questioning Ms. Van Zandt as to her physician's orders during the video deposition, the trial court did not abuse its discretion in finding Ms. Van Zandt unavailable on the basis of the Commonwealth's assurances. See Ruppee v. Commonwealth, Ky., 821 S.W.2d 484, 486 (1991); Bruce, 441 S.W.2d at 437. Appellant raises three (3) allegations of error concerning alleged discovery violations in connection with Ms. Van Zandt's testimony. As to the first, we agree with Appellant that the trial court should have sustained Appellant's objection to Ms. Van Zandt's testimony that Appellant had told her about breaking into this old man's house because the Commonwealth had not complied with RCr 7.24(1) by disclosing the substance of this oral incriminating statement known by the attorney for the Commonwealth to have been made by Appellant to Ms. Van Zandt. For the reasons outlined above in Part III(D)(2), however, Appellant's own subsequent testimony as to his crimes at Stephens's home makes the error harmless. We find Appellant's other arguments, which allege that the Commonwealth failed to disclose exculpatory evidence, unpersuasive. Prior to the video deposition and outside the presence of Appellant and his counsel, the Commonwealth asked Ms. Van Zandt to identify the clothing found in Brady's vehicle, and Ms. Van Zandt told the prosecution that the blue jeans and army jacket were not the clothes she had brought to her husband when she met him in Texas. Appellant asserts that the Commonwealth's failure to disclose this allegedly exculpatory evidence to the defense in a timely fashion, i.e., prior to or during the video deposition when Appellant's trial counsel would have an opportunity to preserve testimony to that effect for presentation at trial, violated the Commonwealth's duties as established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady , the United States Supreme Court held that the suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id., 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. It is fundamental, however, that the materiality of a failure to disclose favorable evidence must be evaluated in the context of the entire record. United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). And the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome does not establish materiality in the constitutional sense. Id., 427 U.S. at 112 n. 20, 96 S.Ct. at 2401-02, 49 L.Ed.2d at 354 n. 20. Because we find no reasonable probability that Ms. Van Zandt's statement as to the clothing found in Brady's pickup would have changed the verdict in this case if disclosed to the defense and introduced at trial, we find no Brady violation in the Commonwealth's failure to disclose it. Because there is no evidence whatsoever that the Commonwealth gave or promised Ms. Van Zandt anything in exchange for her testimony, we find no merit in Appellant's contention that the Commonwealth violated its Brady duties by failing to disclose an agreement, deal, or understanding that, from all indications, did not exist. Appellant's trial counsel vigorously cross-examined Ms. Van Zandt as to her motivations for testifying and her concerns that she could be charged as a co-conspirator for assisting Appellant after his escape. As to Appellant's final allegation of error concerning Ms. Van Zandt's testimony, we observe that [a]ny decision to allow the jury to have testimony replayed during its deliberations is within the sound discretion of the trial judge. Baze v. Commonwealth, Ky., 965 S.W.2d 817, 825 (1997). The trial judge in this case did not abuse that discretion when it replayed Ms. Van Zandt's videotaped deposition over Appellant's objection that doing so would improperly highlight her testimony. Both times the videotaped deposition was played, the trial court admonished the jury to give the witness the same credence... that you would give her if she were here to testify in person. We disagree with Appellant's contention that the trial court, in its response to a juror's inquiry whether it was possible to review transcripts of the witness' [sic] testimony ... back in the jury room, limited or chilled the jurors' ability to request that additional testimony be read back to them. The trial court correctly answered [y]ou cannot review transcripts back in the jury room. see RCr 9.74, and explained [i]f you want a particular witness' [sic] testimony read back to you by the reporter the Court will consider that request. Given that the trial court had the discretion as to whether and to what extent trial testimony would be re-read at the jury's request, the court's additional commentary — [b]earing in mind that we don't want to read back the whole trial that's been going on for three weeks — did not deprive Appellant of due process.
+Reese testified for the better part of two (2) days during the Commonwealth's case-in-chief as to the events beginning with his escape with Appellant from jail in Durant, Oklahoma and continuing through Brady's kidnapping and murder. The Commonwealth's theory of the case was premised largely upon Reese's testimony, which fingered Appellant as the person who killed Brady. As a result, Appellant raises several allegations of error that address the trial court's rulings on matters relevant to Reese's testimony and Appellant's ability to impeach and otherwise discredit that testimony. We find no grounds for reversal in any of Appellant's allegations. Appellant sought to attack Reese's credibility with evidence that he suffered from Dissociative Identity Disorder (DID) — a condition that the defense argued prevented Reese from having the ability to accurately recall and relate events and would lead him to confabulate events. After he learned that Reese had been previously diagnosed with DID by a Dr. Joann Ondrovik, who examined Reese in 1993 in connection with a criminal prosecution for murder in Oklahoma, Appellant sought an order directing that [Reese] be subjected to a comprehensive forensic mental health evaluation, with particular focus on the diagnosis of Dissociative Identity Disorder (DID), by a professional who is specially qualified in the field, prior to testifying against the accused herein[.] The trial court denied Appellant's motion, but stated that it would reconsider its ruling [i]f information is obtained that the defendant feels would be appropriate to bring this motion in the future. Appellant subsequently unsuccessfully moved the trial court to reconsider the prior ruling, but Appellant submitted no additional relevant information at that time for the court's consideration. Appellant argues on appeal that the trial court should have ordered the examination he sought pursuant to CR 35.01 as well as principles of due process and fundamental fairness. We find no error. CR 35.01, which is applicable to criminal proceedings by virtue of RCr 13.04, provides: When the mental ... condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a ... mental examination by a physician ... or appropriate health care expert, or to produce for examination the person in his custody or legal control. (Emphasis added) Although Reese was Appellant's co-indictee, he plead guilty three (3) years before Appellant's case came to trial and thus was not a party to the action at the time of Appellant's motion. Appellant provides no warrant for his assertion that Reese was in the custody or under the legal control of a party, namely the Commonwealth. To the contrary, Reese's trial testimony demonstrated that his permanent home was the Oklahoma State Prison. It thus appears that Reese was on loan from Oklahoma in order to testify at Appellant's trial, but was not in the custody or under the legal control of a party within the contemplation of CR 35.01. Accordingly, CR 35.01 provides no basis for ... an independent examination. Bart v. Commonwealth, Ky., 951 S.W.2d 576, 578 (1997). While we recognize that this Court has held that due process and fundamental fairness may, depending on the circumstances, entitle the defendant to have the alleged victim examined by an independent expert, Mack v. Commonwealth, Ky., 860 S.W.2d 275, 277 (1993) (emphasis added), the critical question is whether the evidence sought by the appellant is of such importance to his defense that it outweighs the potential for harm. Turner v. Commonwealth, Ky., 767 S.W.2d 557, 559 (1988). And, [w]e must be vigilant not to open the door to the opportunity for a defendant in a criminal case to invade the privacy ... or to harass the witness. Id. at 559. In this case, Dr. Ondrovik testified for the defense at trial regarding her diagnosis of Reese, and Appellant was able to present this evidence to the jury notwithstanding the trial court's denial of his motion for an evaluation, which effectively denied Appellant only a more recent diagnosis to present to the jury. The trial court appropriately denied Appellant's request for additional psychological testing because Appellant failed to demonstrate that the evidence sought was sufficiently important to outweigh the potential for harm. In a related allegation of error, Appellant argues that the trial court improperly denied his motion for an order that would have required the Commonwealth to provide Appellant with copies of any and all mental health records concerning... Reese, in the custody and control of any agent of the Commonwealth of Kentucky, or of the State of Oklahoma, or known by either such agency to exist, or in the custody and control of any current or former agent of, or attorney or mental health professional employed by or on behalf of, Dennis Reese[.] We observe that Eldred v. Commonwealth, Ky., 906 S.W.2d 694 (1994), defined the Commonwealth's obligations with respect to mental health records much more narrowly: [t]he Commonwealth's obligation includes records actually in the hands of the prosecutor, its investigator, and other agencies of the state. Id. at 702 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 58-59, 107 S.Ct. 989, 1001-02, 94 L.Ed.2d 40, 58 (1987)). Significantly, when his motion was heard by the trial court, Appellant's trial counsel conceded that the Commonwealth was not required to serve as Appellant's investigator: The Commonwealth's position appears to be that they don't have any obligation to obtain this stuff that is not in their possession, we can obtain it by subpoena. And that's okay. We will proceed to get subpoenas and obtain those records as best we can so long as the Commonwealth asserts that it has complied or turned over to us every record which is in its control, which is within the control of its agents, or which it has knowledge of and the ability to obtain control over. And so long as the Commonwealth is aware of its obligation... and asserts that it is complying with that, that's okay. As far as the remainder of the record, we will obtain them by subpoena with the Court's cooperation. After the Commonwealth explained that it had turned over the one and only report that had come into our possession, the trial court denied Appellant's motion to require the Commonwealth to accumulate Reese's mental health records, but expressly permitted Appellant to subpoena the records himself. And it is clear from the record in this case that the trial court subsequently issued a subpoena duces tecum for Dr. Ondrovik to provide records upon which she based her diagnosis and that Appellant received additional psychological records as a result. Appellant's brief identifies no coherent claim of error. Shortly before Dr. Ondrovik testified at trial, she learned that her mother had just suffered a stroke. During Appellant's direct examination of her, he first solicited testimony concerning her name, address, occupation, and employment. Then Appellant's trial counsel asked: Doctor, before we go any further, I just want to let the jury know if you appear nervous or upset, it is not about testifying here, is it? Simultaneously, Dr. Ondrovik replied no, my, and the Commonwealth objected. The trial court sustained the objection. Appellant argues that the trial court's ruling prevented him from communicating to the jury that the trial proceedings were running later than usual that day because Dr. Ondrovik needed to get on her way because of a family emergency and thereby abridged his right to present a defense, denied him due process of law, a fair trial, and reliable capital sentencing. We find no merit to this assertion. The trial court correctly sniffed this out as an attempt to introduce evidence that, while clearly irrelevant, could engender sympathy for the witness. The trial court thus properly sustained the Commonwealth's objection. Even if the trial court had the discretion to prohibit attorneys from communicating with their witnesses during mid-testimony recesses, compare Perry v. Leeke, 488 U.S. 272, 283-4, 109 S.Ct. 594, 601-2, 102 L.Ed.2d 624, 635 (1989) ([T]he judge must also have the power to maintain the status quo during a brief recess in which there is a virtual certainty that any conversation between the witness and the lawyer would relate to the ongoing testimony) with Reams v. Stutler, Ky., 642 S.W.2d 586, 589 (1982) (characterizing a trial court's admonition that prohibited counsel from conferring with his own witness ... when a recess was called as an abuse of discretion), it did not abuse that discretion when it denied Appellant's motion for an order prohibiting the Commonwealth from communicating with Reese during any trial recesses that occurred in the course of his testimony. Although it is ordinarily improper for the Commonwealth to show during its case-in-chief that a co-indictee has already been convicted under the indictment, see Tipton v. Commonwealth, Ky., 640 S.W.2d 818, 820 (1982); Parido v. Commonwealth, Ky., 547 S.W.2d 125, 127 (1977), we find no reversible error in Appellant's unpreserved and improperly-preserved claims regarding the Commonwealth's introduction of such evidence in this case. Appellant's trial counsel's opening statement included the following: Another fact: Dennis Reese was present and played a role in Frank Brady's murder. You'll hear a lot of different versions most of them coming from Dennis Reese as to what role he played. But the fact is he was there. He played a role in it. And he has confessed before this Court to the murder of Frank Brady. ... Dennis Reese, I will remind you again, the man who stood in this very courtroom in front of this very judge and confessed and pleaded guilty to the murder of Frank Brady. The very first question asked during the defense's cross-examination of Reese zeroed-in on the fact that Reese had entered a negotiated plea of guilty, and subsequent cross-examination demonstrated to the jury that, by pleading guilty to the Kentucky charges, Reese had avoided the death penalty without really losing anything, because he was already facing consecutive sentences in Oklahoma of life without possibility of parole and one-hundred sixty (160) years. Appellant, of course, raised no objection to the Commonwealth's similar questioning during its direct examination of Reese, and it is apparent that the holdings of Tipton and Parido are inapplicable here because this case illustrates the exception to the rule... when the defendant permits the introduction of such evidence without objection for the purpose of trial strategy. Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 33 (1998). Having employed that strategy, Appellant cannot be heard to complain after the strategy failed. Id. We additionally hold that the Commonwealth's introduction, through the Bullitt Circuit Court Clerk, of portions of Reese's plea colloquy was permissible in this case to rebut the defense's opening statement characterization of that plea as a confession to the murder of Frank Brady, which created an inference that Reese had stated during his plea that he had personally shot and killed Brady. Cf. Commonwealth v. Gaines, Ky., 13 S.W.3d 923, 924 (2000) (defense opened door to testimony about co-defendant's plea during its cross-examination of co-defendant). In its opening statement, the Commonwealth informed the jury that it would hear what Michael St. Clair said to Dennis Reese about murdering Keeling, the man who Appellant killed in New Mexico after abducting him and stealing his pickup truck in Colorado. Reese testified that he remembered that the murder took place in New Mexico approximately seven (7) miles before they reached the Texas border because Appellant made a statement to the effect that they enforce the death penalty in Texas. According to Reese, after Appellant killed Keeling, he then went through [Keeling's] wallet and tore the picture up of his little girl and thr[ew] it out the window. Appellant objected to these portions of Reese's testimony on the grounds that the Commonwealth had failed to comply with its RCr 7.24(1) discovery obligation by failing to disclose the substance of this testimony, which he alleges involved Appellant's oral incriminating statements. The trial court sustained Appellant objection to his they enforce the death penalty in Texas statement and ordered it stricken from the record. Although Appellant alleges that the introduction of this evidence necessitated a mistrial, the record does not demonstrate a manifest necessity ... or an urgent or real necessity, Skaggs v. Commonwealth, Ky., 694 S.W.2d 672, 678 (1985), for a mistrial, and the trial court therefore did not abuse its discretion when it denied Appellant's motion. Jones v. Commonwealth, Ky.App., 662 S.W.2d 483, 484 (1983) ([W]e must rely on the good sense of the trial court in not declaring a mistrial[.]). Because Reese's testimony concerning Appellant's destruction of Keeling's child's picture did not involve any statement by Appellant, the Commonwealth had no obligation under RCr 7.24(1) to inform Appellant of it, and the trial court correctly overruled Appellant's objection, which was premised exclusively on an alleged breach of RCr 7.24(1). Appellant is correct that the trial court erroneously overruled his hearsay objection to Reese's testimony that he had spoken with Kincaid, see infra Part III(D)(6), regarding Kincaid's testimony and that [h]e [Kincaid] told me [Reese] what Michael had told him at one point andI — asked me if it was true and I told him yes and I told him he should write —. Given that Kincaid subsequently testified to what Michael had told him, and Reese's testimony made it abundantly clear that, from his perspective, Kincaid's account, which identified Appellant as Brady's murderer, was true, the error was harmless in this case. See Garland, 127 S.W.3d at 540. Appellant's final allegation of error in connection with Reese's testimony involves issues of privilege and waiver, and this allegation requires a more extensive factual explanation than some of the prior allegations. In its attempts to impeach Reese's credibility as a witness, the defense: (1) argued that Reese had utilized discovery materials that were provided to him to fill in the gaps and to supply details in his testimony that were consistent with the Commonwealth's other evidence; and (2) suggested that Reese had a motive to lie because he had agreed to testify against Appellant in exchange for the plea agreement that spared his life. During its direct examination of Reese, the Commonwealth sought to rebut these claims: Comm.: I want to make this clear. At any time when I have spoken to you — when any representative of the Commonwealth has spoken to you, have they ever handed you your statements and told you to keep them? Reese: No, sir. Comm.: Have they ever let you read your statements? Reese: No, sir. Comm.: Have they ever let you listen to tape recordings that you may have made? Reese: No, sir. ... Comm.: Are you expecting any benefit or has it been suggested to you from anybody that you would receive a benefit for testifying here today? Reese: No, sir. Comm.: Did you ever sign an agreement that you would testify? Reese: No, sir. During its cross-examination of Reese, Appellant's trial counsel explored Reese's expectations at the time of his plea as to whether he would be asked to testify against Appellant: Defense: Now, when you were back here and entered your guilty plea you sort of expected this day would come, didn't you? Reese: Yes, sir. Defense: All right. You knew when you entered that plea that if Michael St. Clair ever went to trial here you would be called to testify against him. Reese: I suspected that. Defense: You talked about it? Reese: I don't remember talking about it. Defense: You don't remember talking to your attorneys about it? Reese: We may have. Defense: Did it seem important? Reese: I was concerned about the plea bargain that I was signing. Defense: My question is: Do you remember any discussion about whether or not you're going to have to testify against Michael St. Clair if he went to trial as he is now? Reese: Yes, sir. Defense: You do remember that? Reese: Yes, sir. Defense: And the answer was if they called you, you would have to come testify. Right? Reese: If I didn't have no appeal pending. To provide further evidence relevant to these topics of impeachment, Appellant informed the trial court of its intention to call Rebecca Murrell, an attorney who represented Reese on his Kentucky charges, to testify as to whether she recalls providing him with copies of his discovery and whether the likelihood of his being required to testify against St. Clair if he entered that plea was in fact something that was discussed between them. At a bench conference, Murrell explained that Appellant's trial counsel had informed her of the questions he intended to ask her, that she had discussed this with Reese, and that Reese had told her he does not wish to waive the attorney[-]client privilege and does not wish either myself or [co-counsel] Ms. Schmidt as his counsel in connection with this case, to testify concerning any matters pursuant to client communication. Appellant argued that: (1) the attorney-client privilege was not relevant to Appellant's proposed question as to whether Reese's attorney had provided him with discovery materials; and (2) by testifying himself about discussions concerning whether his plea agreement would require him to testify, Reese had waived his attorney-client privilege with respect to any confidential communications concerning that topic. The trial court ruled that it would not require Murrell to answer the questions that Appellant's trial counsel had identified, but would permit Appellant to ask whether or not it was [Murrell's] usual and customary practice to furnish items of discovery furnished to her by the Commonwealth to her clients. Appellant called Murrell as a witness and, after establishing that she had represented Reese in her capacity as public defender, asked: Defense: Ms. Murrell, tell the jury what is meant by discovery in a criminal law context? Murrell: In laymen's terms discovery would be that process by which a defendant, through counsel, is furnished with information relating to the case, it is a process that is governed by applicable rules and statutory provisions. Defense: Do those rules provide that if the prosecution is in possession of a statement, whether written or taped, that they must provide it to you in discovery? Murrell: Yes, sir. Defense: Do those rules provide that other items of evidence, reports, photographs, so on, are provided to you in discovery? Murrell: Yes, sir. Defense: And once they are provided to you, is it your professional practice to copy those materials and provide them to your client? Murrell: Yes, sir. Defense: Is that something you make a point to do? Murrell: It is my professional practice to do that. Yes, sir. Appellant argues that the trial court erred when it would not allow him to ask the questions that he proposed to ask of Murrell, i.e. , whether she and Reese discussed the possibility that he would have to testify against Appellant and whether she had provided him with discovery materials. We agree with Appellant's contention that the trial court's rulings were erroneous, but find the errors harmless in this case. KRE 503(b) provides that: A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client (i) between the client or a representative of the client and the client's lawyer or a representative of the lawyer.... KRE 503(a)(5) states that [a] communication is `confidential' if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Appellant's proposed question as to whether Murrell had furnished Reese with the discovery materials turned over to her by the Commonwealth did not implicate the KRE 503 privilege. Attorneys may testify as to matters affecting a client so long as such matters do not relate to confidential communications. Futrell v. Shadoan, Ky., 828 S.W.2d 649, 651 (1992) (citing Hyden v. Grissom, 306 Ky. 261, 206 S.W.2d 960, 963 (1947) (An attorney may testify as to matters affecting the client, except as to confidential communications.)). If Murrell had testified that she had furnished discovery materials to Appellant, her testimony would have been a revelation of an act in which [s]he participated, not of a confidential disclosure, United States v. Freeman, 619 F.2d 1112, 1119-1120 (5th Cir.1980), and the Kentucky Evidence Rules Study Commission's commentary to KRE 503 states that [t]he privilege does not extend to ... non-communicative acts. (emphasis in original). Because [c]ommunications from attorney to client are privileged only if they constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence, Robert G. Lawson, The Kentucky Evidence Law Handbook, § 5.10 at 233 (3d Ed.1993) (quoting United States v. Defazio, 899 F.2d 626, 635 (7th Cir.1990)), any vestige of communicative intent represented by a bundle of the opposing party's discovery materials that have been duplicated by an attorney for his or her client falls outside the scope of KRE 503. The trial court's erroneous ruling on this proposed question was harmless error in this case, however, because the record from the bench conference makes it clear that Murrell had no specific knowledge of whether she had furnished Reese with discovery materials and that her case file, which presumably might have refreshed her memory, had been destroyed in a flood. In fact, Appellant's trial counsel stated to Murrell during this bench conference that I know from our discussions, that even if you were to answer that question, your answer would have to be you don't know because the file was destroyed in the flood. Thus, even if the trial court had permitted Appellant to ask the question, Murrell's answer would not have been probative. And, by permitting Appellant to introduce evidence of Murrell's professional practice (a.k.a. her habit) of providing discovery to her clients, the trial court more than accommodated the defense by allowing it to introduce evidence that is inadmissible in Kentucky. See Burchett v. Commonwealth, Ky., 98 S.W.3d 492 (2003). We agree with Appellant's argument that Reese's testimony concerning discussions with his attorneys as to whether he would be required to testify against Appellant waived any privilege as to those communications under KRE 503. In response to questions posed to him on cross-examination, Reese testified at trial that he recalled discussions with his attorneys about whether he would have to testify and that the answer was that he would have to come testify unless he had an appeal pending. KRE 509 provides that [a] person upon whom these rules confer a privilege against disclosure waives the privilege if he ... voluntarily discloses or consents to disclosure of any significant part of the privileged matter. Having disclosed the substance of his communications with his attorneys, Reese could not assert the KRE 503 privilege as a bar to testimony from his attorney as to those same communications. Given that Reese testified that it was his understanding that he would be required to testify, however, the trial court's erroneous ruling was harmless because, in the best case scenario for Appellant, Murrell's testimony would have been merely cumulative.
+The trial court found that the Commonwealth had inadvertently breached its discovery obligations under RCr 7.24(1) and 7.26(1) by failing to produce for the defense — until the day that Scott Kincaid, an inmate at the Oklahoma State Prison testified — a letter that Kincaid had written to the Commonwealth in February 1996 — approximately two and a half (2 1/2) years prior to trial. Although the Commonwealth had previously disclosed to the defense that the substance of Kincaid's testimony was that Appellant had confessed to murdering Brady, the letter contained substantial detail regarding Appellant's incriminating statement to Kincaid that had not been previously disclosed to the defense, i.e. , he admitted to me that he himself killed Frank Brady their [sic] in Kentucky by shooting him twice with a .357 while he was handcuffed. (In front) and also admitted he shot at a K.S. trooper trying to kill him. St. Clair also told me the [sic] he was going to denie [sic] being in Kentucky and that he was going to blame it on Reese. Accordingly, pursuant to the discretion that the Rules of Criminal Procedure grant Kentucky trial courts to remedy discovery violations, see RCr 7.24(9), the trial court ruled that Kincaid could relate the fact that Mr. St. Clair informed him that he murdered Mr. Brady, but that it would not `allow this witness to relate the other information contained in this letter' because the Commonwealth had not timely provided it to the defense. Kincaid testified that Michael admitted to me to killing Mr. Frank Brady and that, in the course of that conversation, Appellant had admitted to personally shooting Brady. Appellant argues that the trial court should have prevented the Commonwealth from soliciting any testimony from Kincaid about Appellant's confession to him. RCr 7.24(9) states that: If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or an order issued pursuant thereto, the court may direct such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as may be just under the circumstances. Here, the trial court prohibited the Commonwealth from introducing in evidence the material not disclosed, and we find no abuse of discretion in the trial court's choice of remedy for the Commonwealth's discovery violation. See Hodge, 17 S.W.3d at 849-50.
+Appellant maintains that a suggestive photographic show up procedure employed in this case rendered Trooper Bennett's identification of Appellant unreliable. Consequently, Appellant contends that the trial court should have: (1) suppressed all testimony concerning Trooper Bennett's out-of-court identification; and (2) prohibited Trooper Bennett from identifying Appellant at trial as the man who stepped out of the passenger side of Brady's pickup truck on October 7, 1991 and fired shots in his direction. The trial court conducted an evidentiary hearing on Appellant's motion at which Trooper Bennett and FBI Special Agent Phillip Lewzader testified. Following the hearing, the trial court entered a written order denying Appellant's motion to suppress in which it accurately outlined the facts as demonstrated at the hearing: On October 7, 1991, Bennett was dispatched to investigate a report of a truck on fire on Flint Hill Road. He arrived around midnight, or shortly thereafter, and observed a burned pick-up truck still smoldering. The fire department had preceded him and apparently extinguished the fire. A witness informed Bennett that a maroon or dark brown Ranger was seen in the area. Bennett left after approximately 45 minutes and returned to normal patrol. During the course of the evening, in Sonora, Kentucky at the Union 76 Truck Stop, he observed a Ranger pick-up truck in the parking lot matching the description given to him by the witness. He passed the parking lot, turned around, and observed that the Ranger was now in another location in the parking lot. As the Ranger left the parking lot Bennett observed two white males in the vehicle. He ran a check on the license plate and then proceeded to follow the Ranger onto Interstate 65 headed north for a distance of approximately two miles. When he activated his blue lights the Ranger abruptly pulled to the right and stopped in the emergency lane. Bennett pulled his cruiser into the emergency lane and while his cruiser was still rolling he observed someone exiting from the passenger's side. Bennett stopped his cruiser about two car lengths behind the rear of the Ranger. At that time the passenger was standing behind the truck behind the right rear wheel. The weather was clear and cold and Bennett related that he does not wear glasses. Bennett trained his spot light directly on the passenger. The passenger raised a handgun and fired two shots directed toward Bennett. Bennett ducked behind the dash board of his cruiser and when he raised up the Ranger was exiting the emergency lane and proceeding north on Interstate 65. Bennett related that he made a positive identification of the person who fired the handgun and that he was a white male, 5' 10, 180 pounds, brown or black hair (Bennett says this was a typo — it should have been brown or blond hair) and a scruffy bead. Later in the evening on October 8, 1991, Bennett, while at home, was informed by dispatch that an FBI agent wanted to talk to him. He went to the State Police Post in Elizabethtown and met with Phillip Lewzader, a Special Agent with the Federal Bureau of Investigation. Lewzader exhibited to Bennett two photographs (mug shots). Bennett made a positive identification of the photo depicting the Defendant, Michael Dale St. Clair, as having been the person who fired two shots at him with a handgun; however, could not identify the second photograph. Agent Lewzader did not identify the name of either individual portrayed in the photographs. Trooper Bennett initially testified that he had received training in identifying suspects at the Kentucky State Police Academy and an additional 40 hours of training per year and had made thousands of vehicle stops in the 23 years that he had been with the Kentucky State Police. The trial court's order then identified the controlling precedent, applied that precedent to the facts of the case, and concluded that Trooper Bennett's identification was reliable: Considering the totality of the circumstances of this case, when reviewed in light of the criteria set forth in Neil v. Biggers, 409 U.S. 188, 196-7, [93 S.Ct. 375, 34 L.Ed.2d 401 (1972)] the Court finds the photos were not misleading as to require suppression of Bennett's pretrial identification of the Defendant.... Applying [the Neil v. Biggers ] factors to the facts of this case, the Court concludes that the identification made by Bennett of the Defendant's photograph was reliable. The Court finds that the procedure utilized by Special Agent Lewzader did not create a situation in which there was a substantial likelihood of irreparable misidentification. At trial, the Commonwealth introduced evidence of Trooper Bennett's October 8, 1991, identification of Appellant from the photograph presented to him by Special Agent Lewzader. In addition, Trooper Bennett identified Appellant in court. We agree with the trial court's ruling on Appellant's motion to suppress this testimony. The relevant United States Supreme Court precedent, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), establishes a two-prong due process test, Wilson v. Commonwealth, Ky., 695 S.W.2d 854, 857 (1985), under which the court must first determine whether the confrontation procedures employed by the police were `suggestive' [and then] [i]f [it] conclude[s] that they were suggestive, [it] then must assess the probability that the witness would make an irreparable misidentification, based on the totality of the circumstances[.] Id. Although Appellant correctly observes that this Court has held that the display ... of a single mug shot ... unaccompanied by any other pictures, was unnecessarily suggestive, Moore v. Commonwealth, Ky., 569 S.W.2d 150, 153 (1978) (citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)), we held in the same case that, despite the suggestive procedure, [t]he crucial question ... is whether [the] in-court identification of appellants was reliable despite this suggestiveness, i.e., whether [the witness] likely would have been able to identify [the suspects] even if a proper photographic identification procedure had been utilized. Moore, 569 S.W.2d at 153. Because the photographic show-up procedure employed in the case at bar was sufficiently suggestive to satisfy the first prong of the Neil v. Biggers analysis, the relevant inquiry is thus whether, under the `totality of the circumstances,' the identification was reliable even though the confrontation procedure was suggestive. Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. at 382. The United States Supreme Court has identified five (5) factors to be considered in evaluating the likelihood of misidentification: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the time of identification; and (5) the length of time between the crime and the confrontation. Id., 409 U.S. at 199-200, 93 S.Ct. at 382. In addition to these five (5) factors, this Court has also considered whether other evidence tends to corroborate the witness's identification. See Merriweather v. Commonwealth, Ky., 99 S.W.3d 448, 452 (2003); Roark v. Commonwealth, Ky. 90 S.W.3d 24, 29 (2002). In applying these factors to Trooper Bennett's identification, we find it to be reliable despite the suggestive photographic lineup procedure. Because of the position of his cruiser and the fact that his spotlight illuminated Appellant, Trooper Bennett had ample opportunity to view him. Trooper Bennett's attention was sufficiently attuned to Appellant, who was, after all, firing a handgun in his direction at the time. While not perfect, Trooper Bennett's prior description was a fair representation of Appellant. At the suppression hearing, Trooper Bennett testified that, when he identified Appellant from the photograph presented to him I was sure. I mean, sure is sure and Special Agent Lewzader testified that Trooper Bennett was absolutely certain of his identification, which came less than twenty-four (24) hours after the shooting incident. In addition, Trooper Bennett's identification of Appellant is corroborated by Reese's testimony and significant circumstantial and forensic evidence. [T]he totality of the circumstances indicate that Appellant's due process rights were not violated, Merriweather, 99 S.W.3d at 451.
+At trial, the trial court permitted the Commonwealth to introduce fourteen (14) pictures of the victim's body — four (4) of which depicted the body at the crime scene and ten (10) of which were taken at an autopsy. The trial court specifically found that the photographs in question ... will assist the jury in making a determination as to the cause of death in this case and thus concluded that the probative value of this evidence outweighs any possible prejudice to the defendant. Appellant argues that the photographs, which he describes as gruesome and repetitive should have been excluded from evidence as substantially more prejudicial than probative. KRE 403. [R]elevant pictures are not rendered inadmissible because they are gruesome and the crime heinous. Clark v. Commonwealth, Ky., 833 S.W.2d 793, 794 (1991). See also Epperson, 809 S.W.2d at 843 ([E]ven gruesome photographs are admissible if they have probative value.). The trial court did not abuse its broad discretion when it permitted the Commonwealth to introduce these photographs. See Woodall, Ky., 63 S.W.3d at 130.
+Appellant argues that the trial court should have excluded the Commonwealth's fingerprint evidence at trial because he was denied an opportunity to conduct independent testing when the Commonwealth released Brady's and Keeling's trucks after it processed the vehicles for latent fingerprints. However, [t]o warrant any relief, Appellant was required to demonstrate bad faith on the part of the police. Crowe v. Commonwealth, Ky., 38 S.W.3d 379, 385 (2001) (citing Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281, 289 (1988)). See also Kirk v. Commonwealth, Ky., 6 S.W.3d 823, 826 (1999) (Absent a showing of bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of the due process of law.); Allen v. Commonwealth, Ky.App., 817 S.W.2d 458, 462 (1991). Cf. Estep v. Commonwealth, Ky., 64 S.W.3d 805, 811 (2002) ([T]he Due Process Clause is implicated only when the failure to preserve ... evidence was intentional and the potential exculpatory nature of the evidence was apparent at the time it was lost or destroyed.) In the case at bar, the Commonwealth explained in its response to Appellant's motion that it is normal police procedure to release motor vehicles to their lawful owners after the vehicles have been processed for latent fingerprints. To retain custody is of little utility, since the latent fingerprints on the vehicle are often completely removed by the lifting process, and continued retention may be very burdensome to the lawful owners of vehicles seized. Appellant points us to nothing in the record to support a different conclusion. Kirk, 6 S.W.3d at 826. We further observe that the Commonwealth provided Appellant with the information and notes incident to the lifting of the latent fingerprints, including the investigative reports from the officers who lifted the prints, photographs of the vehicle in question, and examination of the latent impressions, which distinguishes this case from Green v. Commonwealth, Ky.App., 684 S.W.2d 13, 16 (1984), the authority upon which Appellant relies. In past cases where evidence of bad faith is lacking and the notes and other information incident to the Commonwealth's testing is provided to the defense, we have found no merit in challenges to the admissibility of evidence collected from automobiles premised upon the Commonwealth's release of automobiles before the defense could pursue independent testing. Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 159 (1995); Johnson v. Commonwealth, Ky., 892 S.W.2d 558, 560-561 (1994). Appellant has failed to demonstrate ... bad faith under the standard recognized in this Commonwealth, [and][t]hus we cannot conclude that Appellant was denied due process of law. Collins v. Commonwealth, Ky., 951 S.W.2d 569, 573 (1997).",analysis
+677,1290451,1,2,The only issues to which we may properly address our attention are: 1. Is there substantial evidence to support the verdict? and 2. Was error committed in refusing an instruction proffered by the defendant?,issues
+678,1779301,1,2,"¶ 15. For the foregoing reasons, we reverse the circuit court's order denying the motion to compel arbitration, and we remand this case to the circuit court for entry of an appropriate order referring this case to arbitration in accordance with the agreement. ¶ 16. REVERSED AND REMANDED. WALLER AND COBB, P.JJ., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. DIAZ, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.",conclusion
+679,2826102,1,4,"[¶16] Before considering the substantive issues in this case, we must first address the threshold question of subject matter jurisdiction. While the parties have not briefed jurisdiction in this Court, whether it exists “may be asserted at any time by any interested party or sua sponte by the court at the trial or appellate level.” In re AGS, 2014 WY 143, ¶ 15, 337 P.3d 470, 476 (Wyo. 2014) (citation and quotation marks omitted). “The existence of subject matter jurisdiction is a question of law that we review de novo.” Harmon v. Star Valley Med. Ctr., 2014 WY 90, ¶ 14, 331 P.3d 1174, 1178 (Wyo. 2014) (citation and quotation marks omitted). [¶17] In her complaint, Holloway sought to invoke subject matter jurisdiction pursuant to Wyo. Stat. Ann. §§ 22-23-101 and 22-24-122.5 The former, which resides in the chapter on municipal elections, states that “[u]nless otherwise specifically provided, a municipal election shall be governed by laws regulating statewide elections.” Wyo. Stat. Ann. § 22-23-101. Based upon this provision, she asserted that the statute providing for judicial review of determinations relating to statewide initiatives and referenda conferred jurisdiction to consider her case: 5 In their answer, Appellants included as an affirmative defense that the district court lacked subject matter jurisdiction to consider the case. 5 Any person aggrieved by any determination made under this article, by the secretary of state or by the attorney general, may bring an action in the district court of Laramie county to have the determination reviewed by filing application within thirty (30) days of the date on which notice of the determination was given. Wyo. Stat. Ann. § 22-24-122. [¶18] The district court, in accepting jurisdiction on this basis, concluded that there were no other alternatives for judicial review. Therefore, expanding the statute governing statewide initiatives and referenda to municipal referenda seemed appropriate. It reasoned as follows: The Court does not see why the plaintiff should not at a minimum be entitled to have the Court review the City Clerk’s determination in this matter in the same way that the Secretary of State’s determinations are reviewed as to statewide initiatives and referendums pursuant to the Wyoming Election Code. Section 22-24-122 provides that any person aggrieved by any determination made under the article of the statutes that apply to statewide initiatives and referendums may bring an action in the District Court of Laramie County as more specifically set forth in the statute. I would also refer generally to [Thomson v. Wyoming In-Stream Flow Committee, 651 P.2d 778 (Wyo. 1982)]. There is no similar provision contained in the article of the statutes that applies to municipal initiatives and referendums; yet, the article on municipal initiatives and referendums appears in the Wyoming Election Code in the chapter on municipal elections, which precedes the chapter on statewide initiatives and referendums. Due process and equal protection require that the plaintiff have some ability to seek relief from or a review of the City Clerk’s determination as to the petitions that were submitted in this case. The City Clerk’s determination is functionally no different that the Secretary of State’s determination on statewide initiatives or referendum petitions. The District Court is clearly the proper court to perform such a review; and by analogy and considering the policies behind venue, this Court is the proper court to perform such a review of the City of Casper Clerk’s determination in this case. 6 [¶19] We must disagree with the district court’s finding of jurisdiction through this avenue. Section 22-24-122 specifically states that a person aggrieved by a determination made by the “secretary of state or by the attorney general” relating to statewide initiatives and referenda “may bring an action in the district court of Laramie county to have the determination reviewed.” We find the language of this statute to be clear. Stutzman v. Office of Wyoming State Eng’r, 2006 WY 30, ¶ 14, 130 P.3d 470, 475 (Wyo. 2006) (“Where the language is clear, we look to its ordinary and obvious meaning, are bound to the results so expressed and do not resort to rules of construction.”). This Court concludes that the legislature’s intent in enacting § 22-24-122 was for a very narrow purpose relating to statewide initiatives and referenda. Id. (“In interpreting and construing statutory language, our primary purpose is to determine the legislature’s intent.”). [¶20] The level of detail that the legislature used in drafting this provision leaves no room for us to broaden its application to municipal initiatives and referendums. As this Court has often stated: We will not insert language into a statute that the legislature omitted. A basic tenet of statutory construction is that omission of words from a statute is considered to be an intentional act by the legislature, and this court will not read words into a statute when the legislature has chosen not to include them. At the same time, however, we will not interpret a statute in a way that renders any portion meaningless or in a manner producing absurd results. Id., ¶ 16, 130 P.3d at 475 (citations omitted). We must abide by our dictates of statutory interpretation, and therefore can only conclude that § 22-24-122 provides jurisdiction in the narrow circumstance of reviewing determinations made under Title 22, Chapter 24, Article 1 of the Wyoming statutes. See Thomson, 651 P.2d at 780. [¶21] However, there are two other avenues for Holloway to seek judicial review of the City Clerk’s interpretation of the relevant statutes and his ultimate conclusion concerning the petitions that were submitted. [¶22] The City Clerk’s decision to disqualify signatures can be considered agency action, falling under W.R.A.P. 12 and the Wyoming Administrative Procedure Act, Wyo. Stat. Ann. § 16-3-101 et seq. Rule 12.01 states: To the extent judicial review of administrative action by a district court is available, any person aggrieved or adversely affected in fact by a final decision of an agency in a 7 contested case, or who is aggrieved or adversely affected in fact by any other agency action or inaction, or who is adversely affected in fact by a rule adopted by that agency, may obtain such review as provided in this rule. All appeals from administrative agencies shall be governed by these rules. W.R.A.P 12.01 (emphasis added). Holloway could have obtained judicial review by filing a petition for review in accordance with W.R.A.P. 12.6 However, she did not file a petition for review, but instead opted to file a declaratory judgment action.7 [¶23] Rule 12.12 recognizes that review of agency action can also be available by way of a declaratory judgment action: The relief, review, or redress available in suits for injunction against agency action or enforcement, in actions for recovery of money, in actions for a declaratory judgment based on agency action or inaction, in actions seeking any common law writ to compel, review or restrain agency action shall be available by independent action notwithstanding any petition for review. 6 In administrative proceedings not conducted as trial-type adjudications or contested cases, such as those taken by the City Clerk here, the arbitrary and capricious standard of review would apply. N. Laramie Range Found., ¶ 18, 290 P.3d at 1072; W.R.A.P. 12.09(a). 7 In her complaint, Holloway sporadically mentions injunctive relief, asking the district court to compel the City Clerk to revisit the disallowed signatures and confer with her to determine validity of the signatures. The district court did not rule on, or even acknowledge, this faint aspect of Holloway’s complaint, nor could it have based upon what was, and was not, included in the pleading. We have explained: The Wyoming Rules of Civil Procedure permit “notice pleading,” and pleadings are to be liberally construed to do substantial justice. However, even notice pleading requires fair notice to opposing parties of the nature of a party’s claim. Liberal construction of pleadings does not excuse omission of that which is material and necessary in order to entitle one to relief. Excel Const., Inc. v. HKM Eng’g, Inc., 2010 WY 34, ¶ 35, 228 P.3d 40, 49 (Wyo. 2010) (citations omitted). There is no cognizable claim for injunctive relief included in Holloway’s complaint because there is a clear omission that exists which is material and necessary in order to entitle her to such relief. See Operation Save America v. City of Jackson, 2012 WY 51, ¶ 51, 275 P.3d 438, 455 (Wyo. 2012) (pleading seeking an injunction should state the grounds for doing so, quoting 11A Wright, et al. Fed. Practice & Procedure § 2949); see also CBM Geosolutions, Inc. v. Gas Sensing Tech. Corp., 2009 WY 113, ¶ 8, 215 P.3d 1054, 1057 (Wyo. 2009). We consider Holloway’s complaint to only seek declaratory judgment, as the insufficiently pled request for injunctive relief cannot honestly be contemplated as part of this action. 8 W.R.A.P. 12.12 (emphasis added). [¶24] This Court has on several occasions examined the applicability of declaratory judgment in the context of administrative proceedings. See, e.g., Voss v. Goodman, 2009 WY 40, ¶ 5, 203 P.3d 415, 418 (Wyo. 2009); Wyoming Cmty. Coll. Comm’n v. Casper Cmty. Coll. Dist., 2001 WY 86, ¶¶ 13-14, 31 P.3d 1242, 1248 (Wyo. 2001); Campbell Cnty. Sch. Dist. v. Catchpole, 6 P.3d 1275, 1283 (Wyo. 2000); Hirschfield v. Bd. of Cnty. Comm’rs of Cnty. of Teton, 944 P.2d 1139, 1142 (Wyo. 1997); Rocky Mtn. Oil & Gas Ass’n v. State, 645 P.2d 1163, 1166-69 (Wyo. 1982). In accord with the Uniform Declaratory Judgments Act, our previous decisions have liberally construed the availability of a declaratory judgment proceeding to consider certain issues arising from agency action. Wyo. Stat. Ann. § 1-37-114; Hirschfield, 944 P.2d at 1142. We have explained: The purpose of declaratory judgment actions is to render disputes concerning the legal rights and duties of parties justiciable without proof of a wrong committed by one party against another, and thus facilitate the termination of controversies. Wyoming’s declaratory judgment statute states that it is remedial and should be liberally construed and administered. We do not interpret it in a narrow or technical sense, and there remains the prerequisite that the party seeking declaratory relief present the court with an actual controversy. Trial judges may not dispense with the traditional rules prohibiting them from rendering advisory opinions or adjudicating hypothetical issues. An action for declaratory judgment cannot be a substitute for an appeal from administrative decisions but is available even though there is a statutory method of appeal if it concerns the validity and construction of agency regulations, or if it concerns the constitutionality or interpretation of a statute upon which the administrative action is, or is to be based. Voss, ¶ 5, 203 P.3d at 418 (quoting Hirschfield, 944 P.2d at 1142); see also Torres v. State ex rel. Wyoming Workers’ Safety & Comp. Div., 2004 WY 92, ¶ 6, 95 P.3d 794, 795 (Wyo. 2004). [¶25] Because the district court erred in finding that it had jurisdiction to consider the case under Wyo. Stat. Ann. § 22-24-122, its decision was not limited to the appropriate legal issues—interpretation of statutes upon which the administrative action is, or is to be based. In addition to interpreting the controlling statutes, the decision went beyond the 9 realm of declaratory judgments by finding that the City Clerk acted arbitrarily and capriciously in rejecting certain signatures as he did. [¶26] We conclude that the district court had jurisdiction to consider Holloway’s declaratory judgment action through W.R.A.P. 12.12 and Wyo. Stat. Ann. § 1-37-101 et seq.8 As a result, this Court also has jurisdiction to consider certain issues on appeal. Wyo. Cmty. Coll. Comm’n, ¶ 12, 31 P.3d at 1248) (“This court can have no greater jurisdiction of the subject matter than the district court.”). The narrow issues of law that this Court has jurisdiction to consider fall into the category of an “interpretation of a statute upon which the administrative action is, or is to be based.” See Voss, ¶ 6, 203 P.3d at 418. Summary Judgment—Interpretation of the Municipal Referendum Statutes [¶27] The district court decided the matter by grant of summary judgment, which we have held “may be an appropriate resolution of a declaratory judgment action.” Cheyenne Newspapers, Inc. v. Bldg. Code Bd. of Appeals of City of Cheyenne, 2010 WY 2, ¶ 8, 222 P.3d 158, 161 (Wyo. 2010); see also State ex rel. Arnold v. Ommen, 2009 WY 24, ¶ 23, 201 P.3d 1127, 1134 (Wyo. 2009) (“Summary judgment is appropriate in a declaratory judgment action so long as there are no genuine issues of material fact.”). [¶28] We review a grant of summary judgment entered in response to a declaratory judgment action through our usual standard for review of summary judgments. Arnold, ¶ 13, 201 P.3d at 1132; Voss, ¶ 9, 203 P.3d at 419. Our review of a district court’s summary judgment ruling is de novo, using the same materials and following the same standards as the district court. Arnold, ¶ 13, 201 P.3d at 1132; W.R.C.P. 56(c). No deference is accorded to the district court on issues of law, and we may affirm the summary judgment on any legal grounds appearing in the record. Voss, ¶ 9, 203 P.3d at 419. “The summary judgment can be sustained only when no genuine issues of material 8 We have examined the Uniform Declaratory Judgments Act, which defines the rights that may be subject to declaration under the act and the parties who may seek a declaration of their rights: Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by the Wyoming constitution or by a statute, municipal ordinance, contract or franchise, may have any question of construction or validity arising under the instrument determined and obtain a declaration of rights, status or other legal relations. Wyo. Stat. Ann. § 1-37-103. Thus, “in order for a court to have jurisdiction over a declaratory judgment action, the ‘right’ to be declared must fall within the scope of the act and the plaintiff must be an ‘interested’ person.” See William F. West Ranch, LLC v. Tyrrell, 2009 WY 62, ¶¶ 11-12, 206 P.3d 722, 727 (Wyo. 2009) (applying four-part test for determining whether there is a justiciable controversy); see also Voss, ¶ 7, 203 P.3d at 418-19 (same). We are convinced Holloway’s case meets these requirements. 10 fact are present and the moving party is entitled to judgment as a matter of law.” Id. (quoting Wyo. Cmty. Coll. Comm’n, ¶ 11, 31 P.3d at 1247). [¶29] The parties agree, and the district court’s ruling confirms, that there are no questions of material fact in this case. Our review is confined to questions of law; namely the district court’s interpretation of § 22-23-1005, which states: § 22-23-1005. Ordinance adopted by governing body subject to referendum vote. An ordinance adopted by a municipal governing body shall be subject to a referendum vote if a petition signed by ten percent (10%) of the qualified electors registered in the city or town is filed with the municipal clerk not later than twenty (20) days after the ordinance is first published after adoption as provided by law. To be counted the electors shall be registered voters when the completed petition is submitted for verification. The referendum petition shall set forth the ordinance in full and shall contain the signatures and residence addresses of persons signing the petition. Wyo. Stat. Ann. § 22-23-1005. [¶30] Guided by our rules of statutory interpretation, see Aland v. Mead, 2014 WY 83, ¶ 11, 327 P.3d 752, 758-59 (Wyo. 2014), we find the legislature’s intent is evident when this statute is construed in pari materia. As the district court pointed out, the linchpin in this case can best be said to be who was, or was not, a qualified elector registered to vote in the City of Casper at the time the municipal referendum petitions were submitted to the City Clerk. Ingrained is the issue of whether a signatory remains a qualified elector registered to vote when his or her residence address within the City of Casper as stated on the petition is different than the one on the voter registration list. [¶31] We begin our analysis by reviewing the definitions of certain terms provided by the legislature. Several of the terms contained in § 22-23-1005 are defined by § 22-1- 102, which also defines additional ones relevant to our review:  “Qualified elector” includes every citizen of the United States who is a bona fide resident of Wyoming, has registered to vote and will be at least eighteen (18) years of age on the day of the election at which he may offer to vote;  “Registration” is the entry and verification of the name and voter information of a qualified elector on the official registry list, as provided in Wyo. Stat. Ann. §§ 22-3-104(f) and 22-3-108; 11  “Registry list” is the list by precinct of the names, addresses, party affiliations and precinct and district numbers of the registered electors in the county prepared by the secretary of state or county clerks for distribution as provided in Wyo. Stat. Ann. § 22-2-113;  “Residence” is the place of a person’s actual habitation. The construction of this term shall be governed by the following rules: (A) Residence is the place where a person has a current habitation and to which, whenever he is absent, he has the intention of returning. Wyo. Stat. Ann. § 22-1-102(xxvi), (xxvii), (xxix), (xxx); see Thomson, 651 P.2d at 78991 (finding that the term “qualified voters” within Art. 3, § 52(c), of the Wyoming Constitution governing initiative and referendum is synonymous with term “qualified registered voters” within related statutory provisions). [¶32] With these definitions in mind, we turn to how a qualified elector becomes registered to vote. Wyo. Stat. Ann. § 22-3-104 provides in pertinent part: (d) An applicant may only register to vote in person or by mail at which time he shall provide the information required by W.S. 22-3-103(a) and sign the registration oath as required by W.S. 22-3-103(b).",jurisdiction
+680,4532093,1,2,"First Certified Question ¶ 8 The federal court's certified questions ask us to define the proper scope and application of a provision of the Oklahoma Insurance Code, 36 O.S. § 3629(B). 3 This is a question of first impression in a matter that offers no controlling Oklahoma precedent. Barrios v. Haskell Cty. Pub. Facilities Auth. , 2018 OK 90, ¶ 6 n.6, 432 P.3d 233, 236 n.6. In pertinent part, the terms of section 3629(B) provide that [i]t shall be the duty of the insurer, receiving a proof of loss, to submit a written offer of settlement or rejection of the claim to the insured within sixty (60) days of receipt of proof of loss. Upon judgment rendered to either party, costs and attorney fees shall be allowable to the prevailing party. For purposes of this section, the prevailing party is the insurer in those cases where judgment does not exceed written offer of settlement. In all other judgments the insured shall be the prevailing party. 4 The primary goal of statutory interpretation is to ascertain and, if possible, give effect to the intention and purpose of the Oklahoma Legislature as expressed by the statutory language. Raymond v. Taylor , 2017 OK 80, ¶ 12, 412 P.3d 1141, 1145. Every provision of every Oklahoma statute is presumed to have been intended for some useful purpose and every provision should be given effect. Darnell v. Chrysler Corp. , 1984 OK 57, ¶ 5, 687 P.2d 132, 134. And statutes are interpreted to attain that purpose and end, championing the broad public policy purposes underlying them. Estes v. ConocoPhillips Co. , 2008 OK 21, ¶ 16, 184 P.3d 518, 525. ¶9 The plain language of section 3629(B) imposes an affirmative duty on an insurer to submit a written offer of settlement or rejection of the claim to the insured within a definite time period: sixty days. A statute will be given a construction, if possible, which renders every word operative, rather than one which makes some words idle and meaningless. Estes , 2008 OK 21, ¶ 16, 184 P.3d at 525. This interpretive principle applies to every word, phrase, and clause of the statute. Matthews v. Rucker , 1918 OK 29, ¶ 5, 170 P. 492, 493. Moreover, when construing a statute, relevant provisions must be considered together, where possible, to give force and effect to each. Ledbetter v. Okla. Alcoholic Beverage Laws Enf't Comm'n , 1988 OK 117, ¶ 7, 764 P.2d 172,179. Section 3629(B) speaks of a specific kind of offer--an offer of settlement or rejection of a claim. Its preceding subsection, in turn, contextualizes and clarifies precisely what is meant by a claim: An insurer shall furnish, upon written request of any insured claiming to have a loss under an insurance contract issued by such insurer, forms of proof of loss for completion by such person . . . . Id. § 3629(A) (emphasis added). ¶10 We construe the words in a statute according to their plain and ordinary meaning. In re Protest of Hare , 2017 OK 60, ¶ 10, 398 P.3d 317, 319--20. And so in this case we take section 3629(B)'s words in their plain and ordinary sense--just as would the layperson who purchases an insurance policy, suffers a covered loss, and submits proof of that loss to the insurer. The statute tells both parties what to expect when the insured submits the claim. Upon receiving the insured's claim--that is, the proof of loss--the insurer must act within sixty days to settle (or else reject outright--as happened in this case) that claim. ¶11 By its own plain terms, then, section 3629(B)'s claim--toward which the offer of settlement or rejection is directed--must be an insured's request to the insurer to be made whole for a covered loss. This does not equate to, and must not be mistaken for, a claim arising in later litigation. Had the insured's claim been promptly resolved, no litigation would have arisen at all. A section 3629(B) claim directly flows from the insured's written claim of loss, arising under the insurance contract and duly submitted to the insurer for payment of benefits. That is the only claim with which this statute is concerned. ¶12 In an earlier examination of section 3629(B), we provided the following gloss on the statute: The insurer is the prevailing party only when the judgment is less than any settlement offer that was tendered to the insured, or when the insure[r] rejects the claim and no judgment is awarded. The insured, on the other hand, is the prevailing party when the judgment is more than any settlement offer that was made, or when the insured receives a judgment when the insurer has rejected the claim. Shinault v. Mid-Century Ins. Co ., 1982 OK 136, ¶ 4, 654 P.2d 618, 619. 5 More recently, we observed (albeit in obiter dictum) that [section] 3629(B) provides for prevailing party attorney fees where an insurer fails to submit an offer of settlement or rejection of the claim within 90 [now, sixty] days after proof of loss and where judgment is entered. Barnes v. Okla. Farm Bureau Mut. Ins. Co ., 2004 OK 25, ¶ 8, 94 P.3d 25, 28 (emphasis added). These prior statements were fundamentally sound, and they guide us to our conclusion today. ¶13 An incorrect denial of an insured's claim or an inadequate tender of benefits within the statutory window of section 3629(B), followed by a judgment in the insured's favor after suit is filed, enables the insured to recover attorney fees as the prevailing party in litigation. See Shinault , 1982 OK 136, ¶ 4, 654 P.2d at 619. At the same time, an ultimately correct denial of an insured's claim or an adequate tender of benefits--within the statutory window, but improvidently rejected by the insured--may likewise permit the insurer to recover its attorney fees as the prevailing party. See id. ¶14 Oklahoma places a premium on incentivizing prompt payment of insurance claims. As we have before explained: The statutory duty imposed upon the insurer to accept or reject the claim within ninety [now, sixty] days of the receipt of the proof of loss recognizes that a substantial part of the right purchased by the insured is the right to receive benefits promptly. Unwarranted delay causes the sort of economic hardship which the insured sought to avoid by the purchase of the policy . . . . Lewis v. Farmers Ins. Co. , 1983 OK 100, ¶ 6, 681 P.2d 67, 69; see also Christian v. Am. Home Assurance Co ., 1977 OK 141, ¶¶ 20--21, 577 P.2d 899, 903 (Our Insurance Code requires insurance companies to make immediate payment of claims. . . . This statutory duty imposed upon insurance companies to pay claims immediately , recognizes that a substantial part of the right purchased by an insured is the right to receive the policy benefits promptly.) (emphasis added). As also noted by the Tenth Circuit Court of Appeals, statutes such as Oklahoma's section 3629(B) seek to prevent insurance benefits from unjustly being consumed by litigation costs and are designed to make the beneficiary whole rather than to punish the insurer. Smith v. Equitable Life Assurance Soc'y , 614 F.2d 720, 723 (10th Cir. 1980) (discussing similar Wyoming attorney-fee statute). Statutory provisions like those in section 3629(B) are therefore designed to allow[] recovery of expenses incurred in pursuing a just and reasonable claim. Id. Such statutes are not penal, but remedial or compensatory, in that actual loss is at issue, traceable directly to the insurer's improper conduct. Id. ¶15 These same rationales are reflected in our state's adoption of the Unfair Claims Settlement Practices Act (UCSPA), 6 which mirrors section 3629(B) by requiring insurers to either pay or deny a claim within sixty days of receiving a proof of loss. See 36 O.S. Supp. 2018 § 1250.7(A) (Within sixty (60) days after receipt by a property and casualty insurer of properly executed proofs of loss, the first party claimant shall be advised of the acceptance or denial of the claim by the insurer, or if further investigation is necessary.); id. § 1250.7(C) (directing that the insurer shall complete investigation of a claim within sixty (60) days after notification of proof of loss unless such investigation cannot reasonably be completed within such time and further providing that [i]f such investigation cannot be completed, or if a property and casualty insurer needs more time to determine whether a claim should be accepted or denied, it shall so notify the claimant within sixty (60) days after receipt of the proofs of loss, giving reasons why more time is needed.). Indeed, we may presume the Legislature's 2018 amendment to section 3629(B)--narrowing its time limit from ninety to sixty days--was done in furtherance of ensuring uniformity with the UCSPA's sixty-day mandate. Relatedly, in the bad-faith context, we have clarified that the timeframe for judging the reasonableness of an insurer's actions is that initial window in which the insurer makes the decision to pay or deny the claim. Buzzard v. Farmers Ins. Co. , 1991 OK 127, ¶ 14, 824 P.2d 1105, 1109 ([A] claim must be paid promptly unless the insurer has a reasonable belief that the claim is legally or factually insufficient. . . . The knowledge and belief of the insurer during the time period the claim is being reviewed is the focus of a bad-faith claim.). ¶16 We hold that courts may consider only those offers of settlement of the underlying insurance claim --and not offers to resolve an ensuing lawsuit that might result from the insurer's denial of the same--made within the (now) sixty-day statutory window when determining the prevailing party for purposes of awarding attorney fees under 36 O.S. § 3629(B). To the extent the Oklahoma Court of Civil Appeals previously arrived at a conflicting interpretation of section 3629(B) in Shadoan v. Liberty Mutual Fire Insurance Co. , 1994 OK CIV APP 182, 894 P.2d 1140--a non-precedential opinion cited by the Tenth Circuit Court of Appeals in its certification order--that opinion fails to align with the principles announced today and is hereby expressly overruled. 7 Second Certified Question ¶ 17 It follows that litigation-settlement offers--as opposed to claim-settlement offers--fall beyond section 3629(B)'s initial sixty-day timeframe and, therefore, are simply not within the statute's contemplation. In other words, an offer of litigation settlement cannot serve as the catalyst for section 3629(B)'s fee-shifting provision. In the specific context of a section 3629(B) prevailing-party analysis, our answer to the certifying court's second question is no--for the very basic reason that the type of offer described does not fall within the definition of a section 3629(B) settlement offer. ¶18 The settlement-offer scenario described in the second question would inevitably invite litigation gamesmanship and eleventh-hour offers. The structure of section 3629(B) affords no room to either. The reality is that once the benefits have been denied and the plaintiff retains counsel to dispute that denial, additional costs that require relief have been incurred. Johnson v. Omega Ins. Co. , 200 So. 3d 1207, 1215 (Fla. 2016). 8 And all the good faith and settlement offers in the world after suit is filed will not immunize a company from the consequences of an unjustified refusal to pay which made the suit necessary in the first place. Sloan v. Emp'rs Cas. Ins. Co., Dallas, Tex. , 521 P.2d 249, 251 (Kan. 1974). ¶19 Were this Court to allow insurers to skirt the sixty-day requirement entirely, offer payment at a later date, and then use that untimely payment to deny attorney fees owed to the policyholder, then the purpose of a statute intended to ensure prompt payment of claims would be thoroughly thwarted. To interpret a statute containing a definite time limit, while giving no credence to the readily discernible rationale underlying that time limit, would epitomize a vain and useless act. TRW/Reda Pump v. Brewington , 1992 OK 31, ¶ 5, 829 P.2d 15, 20. We reject any invitation to graft this illogical interpretation onto section 3629(B). See AMF Tubescope Co. v. Hatchel , 1976 OK 14, ¶ 21, 547 P.2d 374, 379 ([A] statute should be given a sensible construction, bearing in mind the evils intended to be avoided or the remedy afforded.); see also Christian , 1977 OK 141, ¶ 22, 577 P.2d at 903 (acknowledging generally the express intent of our legislature to impose upon insurance companies an obligation to pay a valid claim on a policy promptly). The sixty-day limit prescribed by section 3629(B) is not a suggestion, and it is not an invitation for an opening offer: it is a legislative directive to insurance companies that ensures the prompt and timely handling of claims. ¶20 If indeed this sixty-day time limit were inconsequential to the eventual determination of prevailing-party status, then section 3629(B) would essentially operate identically to an offer-of-judgment statute, which could be deployed as a fee-shifting mechanism at any time throughout the litigation. 9 But section 3629(B) is functionally distinguishable from the traditional offer-of-judgment statute, the purpose of which is to encourage judgments without protracted litigation. Dulan v. Johnston , 1984 OK 44, ¶ 10, 687 P.2d 1045, 1047. Section 3629(B) is specific to the insurance context, and its sixty-day requirement furthers a definite and different legislative objective--namely, the prompt payment or denial of claims. ¶ 21 In this case, Northfield attempted to use section 3629(B)'s written offer of settlement as a vehicle to include a lump-sum payment for the resolution of Hamilton's lawsuit, while incorporating at least some [attorney] fees. But the very language of the statute--which explicitly applies to an offer of settlement or rejection of the claim--forecloses its use in this manner. Northfield's June 2017 offer of $45,000 to resolve Hamilton's lawsuit is not a statutory settlement offer within the meaning of section 3629(B). Again, section 3629(B) serves to ensure the swift payment of insurance claims, not of lawsuits. The claim referenced is the insurance claim alone, and the benefits owed under the insurance contract are the only true settlement amounts to which the statute refers.",analysis
+681,6350731,1,1,"In a probate action, the county court denied a petition by the adult children of the decedent asking for appointment of a special administrator and for an order restraining the personal representative during the pendency of a will contest that had been transferred to district court. The court denied the petition on the grounds that the transfer of the will contest to district court divested it of jurisdiction. The adult children appeal. We reverse, and remand for further proceedings. - 760 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports IN RE ESTATE OF ANDERSON Cite as 311 Neb. 758",introduction
+682,895228,1,1,"Johnny Mercado approached Gregorio Huerta, the owner of Greg's Towing, at a race track in Edinburg, Texas, and asked Huerta to tow a disabled Freightliner truck-tractor from Alvin to Mercedes for approximately $2,800. Huerta agreed, drove to Alvin that night to retrieve the truck, and returned to his office in Edinburg. Huerta contacted Mercado to request payment, and they planned for Huerta to follow Mercado with the truck to the final destination in Mercedes. When Mercado did not show up, Huerta became worried that the truck might be stolen and contacted Department of Public Safety Trooper Cesar Torres. Torres agreed to stop by Huerta's office to inspect the truck, but before he got there Mercado arrived and paid for the tow. Huerta informed Torres that it would no longer be necessary for him to come by, but Torres still had concerns about the truck and insisted on inspecting it. Together they devised a plan whereby Huerta would intentionally exceed the speed limit so that Torres would have probable cause to pull him over. When Torres stopped Huerta for speeding in San Juan, Mercado circled the area several times and then drove away. Huerta gave Torres verbal and written permission to perform a road-side search of the truck cab. Unable to find anything during the field search, Torres asked Huerta to move the truck to the United States Customs point of entry at the International Bridge in Hidalgo for further inspection. There law enforcement officers examined the truck, x-rayed it, and searched it with drug sniffing dogs, but nothing was discovered. At some point, officers examined the center axle of the truck and, with Huerta's assistance, removed the housing around one of the axles. Inside the housing were a number of tightly-wrapped bundles containing $281,420 in United States currency. The vehicle identification number and license plates established that Jesus Pulido is the truck's registered owner. Huerta contacted Mercado and left voice messages about the truck and the currency, but Mercado never responded to his inquiries. Torres told Huerta that if no one came forward to claim the money Huerta should get some sort of reward. When no one came forward, Huerta contacted Torres about a reward but was told he would have to speak to Torres's superiors. Huerta did not receive a reward for his role in the seizure. The Hidalgo County District Attorney's Office commenced separate forfeiture proceedings against the truck and the currency pursuant to Chapter 59 of the Code of Criminal Procedure. Mercado and Pulido were served with citation, but neither answered or appeared in the suit. An attorney ad litem was appointed to represent Pulido's interest as the truck's registered owner. Approximately one month after the State initiated the proceedings, Huerta filed a petition seeking to intervene as the last person in possession of the currency at the time it was seized. According to Huerta, the currency was not contraband, Mercado and Pulido had abandoned any claims they held to the currency by failing to answer or appear, and Huerta's interest in the currency was superior to that of the State. The jury found that the currency was not contraband, that Huerta was in actual or joint possession of the currency at the time of seizure, [1] and that Huerta should be awarded $70,000 (roughly 25%) of the currency found in the hub housing. The State moved for judgment notwithstanding the verdict claiming the money was contraband under Chapter 59 of the Code of Criminal Procedure and that Huerta did not have a valid legal claim to the currency. The trial court agreed, found the currency to be contraband, and ordered its forfeiture to the Hidalgo County Criminal District Attorney and DPS. A divided court of appeals reversed the trial court's judgment, holding that the currency had not been shown to be contraband and that Huerta was entitled to the entire $281,420. 312 S.W.3d 586. The State no longer contests the court of appeals' determination that the currency was not contraband, leaving us to decide whether Huerta established his entitlement to the currency. We conclude that he did not.",facts
+683,1834292,1,2,"On January 1, 1993, Abbott was stopped for a traffic violation near 48th and Q Streets in Lincoln. The arresting officer observed that Abbott had glassy eyes and slurred speech and that she smelled of alcohol. Abbott failed field sobriety tests and a preliminary breath test. She was then transported to a detoxification center, where an Intoxilyzer test was administered. The test indicated an alcohol concentration of .174 grams of alcohol per 210 liters of breath. Pursuant to § 39-669.15, Abbott was given a Notice/Sworn Report/Temporary License, which indicated she had submitted to a breath test. The notice informed Abbott that her license would automatically be revoked 30 days from the date of the arrest and that if she wished to contest the revocation, she could request a hearing by filing a petition with the department within 10 days. Abbott filed a petition for administrative hearing on January 7, and a notice of hearing dated January 8 notified Abbott that a hearing would be held on January 19. At the January 19 hearing, Abbott objected to the proceeding in its entirety. Abbott contended the hearing was being conducted using rules and regulations that had not yet been filed with the Secretary of State. The hearing officer overruled Abbott's objection and received the testimony of the arresting officer. Abbott was allowed to cross-examine the arresting officer and then testified on her own behalf. The director subsequently issued an order revoking Abbott's driving privileges for 90 days effective January 31, 1993. The order noted that the burden was on Abbott to demonstrate that the administrative revocation should be dismissed and noted that Abbott had argued that the rules and regulations governing the revocation hearing had not been properly promulgated. The director found that the hearing officer's jurisdiction was limited to the issues delineated in § 39-669.15 and stated that [w]hether rules and regulations were properly adopted is not one of the permissible issues. Abbott timely appealed the department's decision to the Lancaster County District Court. The court found that the evidence supported a conclusion that the rules and regulations required by § 39-669.15(7) had not been approved by the Governor or filed with the Secretary of State by January 1, 1993, the date Abbott was arrested, or January 19, 1993, the date of the revocation hearing. Further, the court found that Abbott's right to due process had been violated because the rules and regulations used to conduct the revocation hearing had not been approved and filed, as required by Neb.Rev. Stat. § 84-908 (Reissue 1987), at the time of the arrest.",facts
+684,2137350,1,3,"Examining the evidence, which is construed most favorably to the State in light of Jameson's conviction, we conclude that the evidence is sufficient to sustain the conviction. In Jameson's trial, the State factually established that, in the early morning hours of the date alleged, Jameson, uninvited and unknown to the 19-year-old victim, entered the residence shared by the victim and her female roommate. Jameson went into the victim's bedroom, where she was alone and asleep, and crawled into the victim's bed. While the victim struggled, Jameson fondled the victim's breasts and ultimately placed his hand and erect penis in the victim's vaginal area, but there was no sexual penetration. Eventually, the victim freed herself from Jameson and called police, who arrived shortly afterwards, although Jameson had departed in the meantime. After the police investigated the assault, Jameson was arrested and charged with attempted sexual assault. A jury could, and did, reasonably find that Jameson intentionally engaged in conduct which constituted a substantial step toward the commission of first degree sexual assault. Hence, the evidence is sufficient to sustain Jameson's conviction, which is affirmed.",sufficiency of the evidence
+685,2790986,1,3,"We first consider whether jurisdiction exists to review this matter. Petitioners assert that the decision below expressly and directly conflicts with the decision of this Court in McCain and other Florida decisions. See art. V, § 3(b)(3), 3. The undertaker’s doctrine imposes a duty of reasonable care upon a party that freely or by contract undertakes to perform a service for another party. See, e.g., Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1186 (Fla. 2003) (citing Restatement (Second) of Torts § 323 (1965)). The undertaker is subject to liability if: (a) he or she fails to exercise reasonable care, which results in increased harm to the beneficiary; or (b) the beneficiary relies upon the undertaker and is harmed as a result. See id. -5- Fla. Const. Specifically, Petitioners claim that the Second District defined the duty in a manner that conflicts with the approach delineated in McCain. We agree. We have long held that to succeed on a claim of negligence, a plaintiff must establish the four elements of duty, breach, proximate causation, and damages. See, e.g., U.S. v. Stevens, 994 So. 2d 1062, 1065-66 (Fla. 2008). Of these elements, only the existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant. McCain, 593 So. 2d at 503. Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case. Id. at 503 n.2. As in this case, when the source of the duty falls within the first three sources, the factual inquiry necessary to establish a duty is limited.4 The court must simply determine whether a statute, regulation, or the common law imposes a duty of care upon the defendant. The judicial determination of the existence of a duty is a minimal threshold that merely opens the courthouse doors. Id. at 502. Once a court has concluded that a duty exists, Florida law neither requires nor allows the court to further expand its consideration into how a 4. Even when the duty is rooted in the fourth prong, factual inquiry into the existence of a duty is limited to whether the “defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” McCain, 593 So. 2d at 502. -6- reasonably prudent person would or should act under the circumstances as a matter of law.5 We have clearly stated that the remaining elements of negligence— breach, proximate causation, and damages—are to be resolved by the fact-finder. See Dorsey v. Reider, 139 So. 3d 860, 866 (Fla. 2014); Williams v. Davis, 974 So. 2d 1052, 1056 n.2 (Fla. 2007) (citing McCain, 593 So. 2d at 504); see also Orlando Exec. Park, Inc. v. Robbins, 433 So. 2d 491, 493 (Fla. 1983) (“[I]t is peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty of due care.” (citation omitted)), receded from on other grounds by Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995). The Second District determined that a clearly recognized common law duty existed under both Rupp and Leahy. Rupp established that school employees must reasonably supervise students during activities that are subject to the control of the school. 417 So. 2d at 666; see also Leahy, 450 So. 2d at 885 (explaining that the duty of supervision owed by a school to its students included a duty to prevent aggravation of an injury). However, the Second District incorrectly expanded Florida law and invaded the province of the jury when it further considered 5. Of course, as McCain acknowledges, some facts must be established to determine whether a duty exists, such as the identity of the parties, their relationship, and whether that relationship qualifies as a special relationship recognized by tort law and subject to heightened duties. See 593 So. 2d at 503-04. However, further factual inquiry risks invasion of the province of the jury. -7- whether post-injury efforts required Respondent to make available, diagnose the need for, or use the AED on Abel. Limones, 111 So. 3d at 905. This detailed analysis exceeded the threshold requirement that this Court established in McCain. Therefore, conflict jurisdiction exists to consider the merits of this case and we choose to exercise our discretion to resolve this conflict. We review de novo rulings on summary judgment with respect to purely legal questions. See, e.g., Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003). Common Law Duty As a general principle, a party does not have a duty to take affirmative action to protect or aid another unless a special relationship exists which creates such a duty. See Restatement (Second) of Torts § 314 cmt. a (1965). When such a relationship exists, the law requires the party to act with reasonable care toward the person in need of protection or aid. See id. § 314a cmt. e. As the Second District acknowledged below, Florida courts have recognized a special relationship between schools and their students based upon the fact that a school functions at least partially in the place of parents during the school day and school-sponsored activities. See, e.g., Nova Se. Univ., Inc. v. Gross, 758 So. 2d 86, 88-89 (Fla. 2000) (citing Rupp, 417 So. 2d at 666). Mandatory education of children also supports this relationship. Rupp, 417 So. 2d at 666. -8- This special relationship requires a school to reasonably supervise its students during all activities that are subject to the control of the school, even if the activities occur beyond the boundaries of the school or involve adult students. See Nova Se. Univ., 758 So. 2d at 88-89 (applying the in loco parentis doctrine to a relationship between an adult student and a university when the university mandated participation by the student in an off-campus internship); Rupp, 417 So. 2d at 666-67 (concluding that a duty of supervision existed during an unsanctioned off-campus hazing event by a school-sponsored club); cf. Kazanjian v. Sch. Bd. of Palm Beach Cnty., 967 So. 2d 259, 268 (Fla. 4th DCA 2007) (finding that the duty of supervision did not extend to a student who was injured when she left school premises without authorization). This duty to supervise requires teachers and other applicable school employees to act with reasonable care under the circumstances. Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 571 (11th Cir. 1997) (citing Florida law); see also Nova Se. Univ., 758 So. 2d at 90 (noting that the university had a duty to use reasonable care when it assigned students to off-campus internships). Thereafter, it is for the jury to determine whether, under the relevant circumstances, the school employee has acted unreasonably and, therefore, breached the duty owed. See La Petite Acad., Inc. v. Nassef ex rel. Knippel, 674 So. 2d 181, 182 (Fla. 2d DCA 1996) (citing Benton v. Sch. Bd. of Broward Cnty., 386 So. 2d 831, 834 (Fla. 4th DCA 1980)); see also Zalkin v. Am. Learning Sys., -9- 639 So. 2d 1020, 1021 (Fla. 3d DCA 1994) (concluding that whether alleged negligent supervision by school employees resulted in injury to a student was a jury issue). Lower courts in Florida have recognized that the duty of supervision creates the following specific duties owed to student athletes: (1) schools must adequately instruct student athletes; (2) schools must provide proper equipment; (3) schools must reasonably match participants; (4) schools must adequately supervise athletic events; and (5) schools must take appropriate measures after a student is injured to prevent aggravation of the injury. See Limones, 111 So. 3d at 904 (citing Leahy, 450 So. 2d at 885); see also Zalkin, 639 So. 2d at 1021. Other jurisdictions have acknowledged similar duties owed to student athletes. See Avila v. Citrus Cmty. Coll. Dist., 131 P.3d 383, 392 (Cal. 2006) (“[I]n interscholastic and intercollegiate competition, the host school and its agents owe a duty to home and visiting players alike to, at a minimum, not increase the risks inherent in the sport.”); Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1370 (3d Cir. 1993) (college owed duty to recruited athlete to take reasonable safety precautions against the risk of death); see also Jarreau v. Orleans Parrish Sch. Bd., 600 So. 2d 1389, 1393 (La. Ct. App. 1992) (school board owed duty to injured high school athlete to provide access to medical treatment); Stineman v. Fontbonne Coll., 664 F.2d 1082, 1086 (8th Cir. 1981) (college owed duty to provide medical assistance to injured student athlete). - 10 - In this case, Abel was a student who was injured while he participated in a school-sponsored soccer game under the supervision of school officials. Therefore, we conclude that Respondent owed Abel a duty of supervision and to act with reasonable care under the circumstances; specifically, Respondent owed Abel a duty to take appropriate post-injury efforts to avoid or mitigate further aggravation of his injury. See Rupp, 417 So. 2d at 666; Leahy, 450 So. 2d at 885. “Reasonable care under the circumstances” is a standard that may fluctuate with time, the student’s age and activity, the extent of the injury, the available responder(s), and other facts. Advancements with technology and equipment available today, such as a portable AED, to treat an injury were most probably unavailable twenty years ago, and may be obsolete twenty years from now. We therefore leave it to the jury to determine, under the evidence presented, whether the particular actions of Respondent’s employees satisfied or breached the duty of reasonable care owed. For several reasons, we reject the decision of the Second District to narrowly frame the issue as whether Respondent had a specified duty to diagnose the need for or use an AED on Abel. First, as stated above, reasonable care under the circumstances is not and should not be a fixed concept. Such a narrow definition of duty, a purely legal question, slides too easily into breach, a factual matter for the jury. See McCain, 593 So. 2d at 502-04. We reject the attempt below to - 11 - specifically define each element in the scope of the duty as a matter of law, as this case attempted to remove all factual elements from the law and digitalize every aspect of human conduct. We are also cognizant of the concern raised by Respondent and its amici that if a defined duty could require every high school to provide an AED at every athletic practice and contest, the result could be great expense. Instead, the flexible nature of reasonable care delineated here can be evaluated on a case by case basis. The duty does not change with regard to using reasonable care to supervise and assist students, but the methods and means of fulfilling that duty will depend on the circumstances. Additionally, we reject the position of the Second District and Respondent that L.A. Fitness governs this case. The Fourth District in L.A. Fitness determined that the duty owed by a commercial health club to an adult customer only required employees of the club to reasonably summon emergency responders for a patron in cardiac distress. 980 So. 2d at 562; see also De La Flor v. Ritz-Carlton Hotel Co., 930 F. Supp. 2d 1325, 1330 (S.D. Fla. 2013) (citing L.A. Fitness, 980 So. 2d at 562). The adult customer and the health club stand in a far different relationship than a student involved in school activities with school board officials. Although some courts in other jurisdictions have determined that fitness clubs and other - 12 - commercial entities do not owe a legal duty to provide AEDs to adult customers,6 the commercial context and relationship of parties in these cases is a critical distinction from the case before us. Despite the fact the business proprietorcustomer and school district-student relationships are both recognized as relationships, these relationships are markedly different. We initially note that the proprietor-customer relationship most frequently involves two adult parties, whereas the school-student relationship usually involves a minor. Furthermore, the business invitee freely enters into a commercial relationship with the proprietor. By contrast, Florida, along with the rest of the country, has mandated education of our minor children. § 1003.21, Fla. Stat. (2014). Compulsory schooling creates a unique relationship, a fact that has been recognized both by Florida courts and the Florida Legislature. Florida common law recognizes a specific duty of supervision owed to students and a duty to aid students that is not 6. See, e.g., Verdugo v. Target Corp., 327 P.3d 774, 792 (Cal. 2014) (holding that a retailer did not owe a common law duty to acquire and make available an AED to a patron); Miglino v. Bally Total Fitness of Greater N.Y., Inc., 985 N.E.2d 128, 132 (N.Y. 2013) (statute that required large health clubs to acquire an AED did not impose duty to use it); Rotolo v. San Jose Sports & Entm’t, LLC, 59 Cal. Rptr. 3d 770, 774-75 (Cal. Ct. App. 2007) (refusing to impose a duty on owners of a sports facility to notify patrons of the existence and location of an AED), modified on other grounds by Verdugo, 327 P.3d at 784; Salte v. YMCA of Metro. Chi. Found., 814 N.E.2d 610, 615 (Ill. App. Ct. 2004) (holding that a health club’s duty of reasonable care to its guests did not require it to obtain and use an AED on a guest). - 13 - otherwise owed to the business customer. See Rupp, 417 So. 2d at 666-67. Furthermore, the Florida Legislature has specifically mandated that high schools that participate in interscholastic athletics acquire an AED and train appropriate personnel in its use. § 1006.165(1)-(2), Fla. Stat. Notably, the Legislature has not so regulated health clubs or other commercial facilities, even though the foreseeability for the need to use an AED may be similar in both contexts. See L.A. Fitness, 980 So. 2d at 561. The relationship between a commercial entity and its patron quite simply cannot be compared to that between a school and its students. We therefore conclude that the facts of this case are not comparable to those in L.A. Fitness. Other Sources of Duty Although Petitioners alleged in their pleadings that Respondent owed a statutory duty under section 1006.165, Florida Statutes, Petitioners did not clearly articulate before this Court the basis for such a duty. We therefore do not address it here. See, e.g., Chamberlain v. State, 881 So. 2d 1087, 1103 (Fla. 2004). Moreover, because we decide as a dispositive issue that Respondent’s motion for summary judgment was improperly granted because Respondent owed a common law duty to Abel, we decline to address Petitioners’ claim under the undertaker’s doctrine. Immunity - 14 - Because we conclude that Respondent owed a common law duty to Abel, we must now consider whether Respondent is immune from suit under sections 1006.165 and 768.1325, Florida Statutes. See Wallace v. Dean, 3 So. 3d 1035, 1044 (Fla. 2009) (emphasizing that the existence of a duty is “conceptually distinct” from the determination of whether a party is entitled to immunity). Respondent claims that these statutory provisions grant it immunity. The question of statutory immunity is a legal question that we review de novo. See, e.g., Found. Health v. Westside EKG Assocs., 944 So. 2d 188, 193-94 (Fla. 2006). Section 1006.165 requires all public schools that are members of the Florida High School Athletic Association to have an operational AED on school property and to train “all employees or volunteers who are reasonably expected to use the device” in its application. § 1006.165(1)-(2), Fla. Stat. Further, “[t]he use of [AEDs] by employees and volunteers is covered under [sections] 768.13 and 768.1325,” which generally regulate immunity under Florida’s Good Samaritan Act and the Cardiac Arrest Survival Act. § 1006.165(4).7 Subsection (3) of the Cardiac Arrest Survival Act states: 7. Although section 1006.165 references both the Good Samaritan Act, section 768.13, and the Cardiac Arrest Survival Act, section 768.1325, Respondent seeks immunity only under the Cardiac Arrest Survival Act. We therefore do not consider whether the Good Samaritan Act provides immunity under these circumstances. See, e.g., Chamberlain, 881 So. 2d at 1103. - 15 - Notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who uses or attempts to use an [AED] on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency, is immune from civil liability for any harm resulting from the use or attempted use of such device. In addition, notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who acquired the device and makes it available for use, including, but not limited to, a community organization . . . is immune from such liability . . . . § 768.1325(3), Fla. Stat. (emphasis supplied). There is no immunity for criminal misuse, gross negligence, or similarly egregious misuse of an AED. § 768.1325(4)(a). Under a plain reading of the statute, this subsection creates two classes of parties that may be immune from liability arising from the misuse of AEDs: users (actual or attempted), and acquirers. Users are clearly “immune from civil liability for any harm resulting from the use or attempted use” of an AED. § 768.1325(3), Fla. Stat. Additionally, acquirers are immune from “such liability,” meaning the “liability for any harm resulting from the use or attempted use” referenced in the prior sentence. Id. (emphasis supplied). Thus, acquirers are not immune due to the mere fact that they have purchased and made available an AED which has not been used; rather, they are entitled to immunity from the harm that may result only when an AED is actually used or attempted to be used. It is undisputed that no actual or attempted use of an AED occurred in this case until emergency responders arrived. - 16 - Therefore, we hold that Respondent is not entitled to immunity under section 768.1325 and such section has absolutely no application here. Despite the protests of Respondent and its amici, we do not believe that this straightforward reading of the statute defeats the legislative intent. The passage of section 1006.165 demonstrates that the Legislature was clearly concerned about the risk of cardiac arrest among high school athletes. The Legislature also explicitly linked this statute to the Cardiac Arrest Survival Act, which grants immunity for the use—actual or attempted—of an AED. The emphasis on the use or attempted use of an AED in the statute underscores the intent of the Legislature to encourage bystanders to use a potentially life-saving AED when appropriate. Without this grant of immunity, bystanders would arguably be more likely to hesitate to use an AED for fear of potential liability. To extend the shield of immunity to those who make no attempt to use an AED would defeat the intended purpose of the statute and discourage the use of AEDs in emergency situations. The argument that immunity applies when an AED is not used is spurious. The immunity is with regard to harm caused by the use of an AED, not a failure to otherwise use reasonable care.",jurisdiction
+686,4560958,1,1,"Theisen was charged by an amended information with seven charges, including: conspiracy to distribute or deliver a controlled substance (hydrocodone), conspiracy to distribute or deliver a controlled substance (oxycodone), conspiracy to distribute or deliver a controlled substance (tramadol), tampering with evidence, felony child abuse, and two counts of misdemeanor child abuse. Theisen and the State entered into a plea agreement whereby Theisen would plead guilty to conspiracy to distribute or deliver hydrocodone and tramadol and to felony child abuse and the State would dismiss the remaining charges. This dismissal was noted by an interlineated copy of the amended information which contained the following remaining allegations: [Conspiracy to Distribute or Deliver Hydrocodone:] Theisen, on or about the 1st day of June, 2016, through the 23rd day of August, 2018, in Madison County, Nebraska, with intent to promote or facilitate the commission of a felony offense, did agree with another person or persons that they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense of delivery or distribution of the controlled substance hydrocodone. Complainant further states that [Theisen] or another with whom [she] conspired with committed an overt act in furtherance of the conspiracy, to wit: [Theisen] was buying and/or selling hydrocodone. .... [Conspiracy to Distribute or Deliver Tramadol:] Theisen, on or about the 1st day of June, 2016 through the 23rd day of August, 2018, in Madison County, Nebraska, with the intent to promote or facilitate the commission of a felony, did agree with another person or persons that - 595 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense of the delivery or the distribution of the controlled substance tramadol. Complainant further alleges that [Theisen] or another person with whom [she] conspired with committed an overt act in furtherance of the conspiracy, to wit: [Theisen] was buying and/or selling tramadol. .... [Child Abuse:] Theisen, on or about the 1st day of June, 2016 through the 23rd day of August, 2018, in Madison County, Nebraska, did knowingly and intentionally cause or permit a minor child, or minor children, specifically K.S. to be a) placed in a situation that endangered the minor child’s or minor children’s life or physical or mental health; and/or b) cruelly confined or cruelly punished; and/or c) deprived of necessary food, clothing, shelter, or care; and/or d) placed in a situation to be sexually exploited by allowing, encouraging, or forcing such minor child to solicit for or engage in prostitution, debauchery, public indecency, or obscene or pornographic photography, films, or depictions; and/or e) placed in a situation to be sexually abused as defined in Section 28-319, 28-319.01, or 28-302.01; and/or f) placed in a situation to be a trafficking victim as defined in Section 28-830[.] The district court was informed of this agreement at a pretrial conference, and the court rearraigned Theisen on the three remaining counts, to which Theisen pled guilty. Following an advisement of Theisen’s rights, the court asked Theisen to explain what gave rise to these charges, to which Theisen answered: Last year in August, Department of Health and Human Services became involved in my life, and my children were removed because I admitted everything. I — I guess the painkillers stemmed from a back injury and I became addicted to them, and I was buying and selling - 596 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 them to support my habit. There is so much information, it’s hard to explain. In response to the court’s questioning regarding whether Theisen was selling hydrocodone and tramadol between the dates of June 1, 2016, and August 23, 2018, in Madison County, Nebraska, Theisen responded, “Yes.” The court then asked the State to provide the balance of the factual basis for the charges, and the State explained: In terms of the child abuse, law enforcement officers interviewed both the victim, [Theisen’s] mother, as well as [Theisen’s] other daughter. I think, approximately, victim was age 17, the other daughter was approximately age 15, I believe, at the time. They all confirmed that [Theisen] physically and psychologically abused one daughter in particular over an extended period of time. Would hit her, slap her, essentially force her to do, you know, menial tasks around the home. Giving her deadlines to get things done rather than doing those tasks herself, those type of things. .... [As to the conspiracy to distribute or deliver hydrocodone and tramadol charges, Theisen] would, as she sort of said, she would buy and get painkillers and then sell them as well. Additionally, according to her daughter, she would actually have them text potential buyers ahead of time that the sales would be taking place. They reported — the daughters reported actually receiving threats back from some of those drug dealers and purchasers about the sales going on. Additionally, she would work with others involved in this ring to buy and sell the drugs. The court found there was a sufficient factual basis and accepted Theisen’s guilty pleas. Theisen was sentenced to consecutive terms of 6 to 12 years’ imprisonment for conspiracy to distribute or deliver hydrocodone, 1 to 3 years’ imprisonment - 597 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 for conspiracy to distribute or deliver tramadol, and 1 to 3 years’ imprisonment for child abuse. ASSIGNMENTS OF ERROR Theisen assigns that the district court erred in accepting her guilty pleas to the conspiracy charges, because (1) the charging information was insufficient to establish overt acts in furtherance of the conspiracy and (2) the factual basis was insufficient under Wharton’s Rule to establish participation of two or more persons beyond those actions which are necessary for the commission of the underlying offenses. Theisen also assigns she received ineffective assistance, because trial counsel failed to advise her that under Wharton’s Rule, she could not be convicted of conspiracy, and trial counsel had a conflict of interest from previous representation of a State’s material witness.",facts
+687,2640157,1,1,"[¶ 4] Nagle raises these issues: I. Whether the Medical Commission's decision that Mr. Nagle was not entitled to permanent total disability benefits was arbitrary and capricious and not supported by the standing case law. II. Whether the Medical Commission's decision that Mr. Nagle's medical treatment for his wrist and hip was arbitrary and capricious and not supported by the substantial evidence presented at the hearing. The Division responded: I. Whether the Medical Commission Hearing Panel's determination, that Mr. Nagle failed to prove his entitlement to permanent total disability benefits, was arbitrary or capricious? II. Whether the Medical Commission Hearing Panel's determination, that Mr. Nagle failed to prove the relatedness between his 1987 left foot injury and his recent wrist and hip injuries, was arbitrary or capricious?",issues
+688,2272501,1,2,"We review both dismissal and summary judgment de novo. [2] Charlton bases his claim that the Superior Court had personal jurisdiction over Mond solely on records of telephone calls between Mond and Mesquita, neither of whom is a District of Columbia resident, as well as between Mond and other parties who are District residents. Mond made the calls prior to and on the day he terminated Charlton's contract. Charlton urges us to interpret these telephone records in the light most favorable to him [3] and to conclude that they constitute sufficient grounds for personal jurisdiction over Mond. Alternatively, he argues that Mond waived his jurisdictional defense by filing a counterclaim. We hold that jurisdiction was improper in the first instance and that the trial judge erred in denying Mond's first motion to dismiss. We also hold that when a defendant first files to dismiss and the court denies the motion, the defendant does not waive an objection to the court's jurisdiction by later filing a counterclaim.
+Charlton relies on the RESTATEMENT (SECOND) OF TORTS § 577(1) (1977) [4] to support the proposition that the situs of the defamation, venue and jurisdiction, is (sic) where the defamatory information was received. Though the situs of the alleged injury was certainly in the District because the allegedly defamatory material reached some who were indisputably District residents, we have found no case that would allow personal jurisdiction over Mond based solely on that fact. Nor do the cases Charlton relies upon support this position. [5] Had Charlton claimed personal jurisdiction over Mond as one who caus[ed] tortious injury in the District of Columbia by an act or omission in the District of Columbia, [6] his argument would have had more merit. But he cannot so argue, since Mond's phone calls originated in Maryland. Instead, Charlton must prove jurisdiction [7] under D.C.Code § 13-423(a)(4), which requires additional contacts between a defendant and the forum when the predicate act to the alleged injury originates outside the District. [8] Therefore, the proposition that the situs of a tort is located in the jurisdiction where the damage occurred, while true, does not help Charlton's jurisdictional argument. Because there is no basis for personal jurisdiction based on the phone calls themselves, [9] Charlton needed to prove additional contacts between Mond and the District of Columbia. But even after discovery had been completed, Charlton failed to present evidence of any such contacts. The cases that Charlton relies on fail to support his argument. [10] The closest case on point is Blumenthal v. Drudge, where the court held that jurisdiction existed over Drudge, a California resident who was accused of defaming a White House staffer by publishing a story about him on his web site. [11] In holding so, however, the court did not rest its decision solely on the fact that the defamatory story was available to or directed at District of Columbia residents. Instead, it concentrated on the additional multiple and persistent contacts between the defendant and the forum. [12] Charlton misinterprets Drudge when he argues that any defendant who knows the effect of his actions will be suffered in a particular forum ... should also expect to be brought into court there. [13] Here, both Charlton and Mond were Maryland residents. Charlton's business was registered in Maryland. The contract was negotiated and executed in Maryland. Charlton's work on Mond's house took place entirely within Maryland pursuant to licenses and permits issued by Maryland authorities. Other than the allegedly defamatory phone calls themselves, which originated in Maryland, Charlton has presented no evidence of persistent conduct by Mond in the District. Thus, based on the facts before us, the proper forum to resolve this dispute is a Maryland court.
+Charlton also argues that Mond's counterclaim constituted a waiver of his jurisdictional objection. He relies on Overby v. Barnett, where the trial court sua sponte dismissed a contract claim pursuant to an arbitration provision after the defendants had filed a counterclaim. [14] In Overby, we held that the parties waived their right to arbitrate by filing the counterclaim, and that the trial court had erred by dismissing for lack of jurisdiction. But Overby is not on point because it addressed the subject matter jurisdiction of the court. [15] Here the issue is personal jurisdiction over Mond. Though Charlton fails to convince us that the counterclaim signified Mond's consent to the power of the court, the issue warrants further analysis. Though Charlton fails to cite them, our precedents hold that filing a counterclaim operates as a waiver of an objection to personal jurisdiction. [16] The waiver does not depend on whether the counterclaim was permissive. [17] Thus, Mond's argument that he had no choice but to file a counterclaim... to avoid res judicata and statute of limitations issues in Maryland lacks merit. Nevertheless, we are convinced that there was no waiver here. First, we note that in every case that we could find which has addressed this issue, defendants raised a jurisdictional defense after counterclaiming, unlike Mond, who objected to the court's lack of jurisdiction before filing a counterclaim. [18] In addition, as we have already explained, the trial court erred when it denied Mond's original motion to dismiss. [19] Moreover, Mond could have properly moved to dismiss for lack of personal jurisdiction concurrently with filing a counterclaim without affecting a waiver. [20] Finally, we have suggested that a denied motion to dismiss preserves the jurisdictional issue on appeal, even when the defendant counterclaims in the interim. [21] Therefore, in a case such as this, where the defendant first claims a lack of jurisdiction and later files a counterclaim, he has effectively registered his dissent to the court's jurisdiction. [22] We hold that Mond did not consent to the court's power over his person by counterclaiming after he had moved to dismiss for lack of personal jurisdiction. [23]",jurisdiction
+689,901240,1,1,"[¶ 2.] Lawrence Holan died on April 11, 1998. A widower, Lawrence was survived by six children. His estate consisted of farm equipment, a house in Pukwana, and 1,358.5 acres of farmland. Shortly after his death, Lawrence's daughters, Judene Holan and Lynette Leiferman, offered for probate a will dated March 3, 1997. Dennis Holan contested the admission, arguing that the will was the product of undue influence. He offered instead, Lawrence's will of May 15, 1991 and its codicil. [¶ 3.] The significant difference between the two wills was the disposition of the farmland. Under the 1997 will, Lawrence devised to Dennis 80 acres in Brule County. The remainder of Lawrence's estate was to be divided in equal shares among the six children. Under the 1991 will, Lawrence left his home in Pukwana to the other five siblings and his farm property to Dennis, provided that he make payments over a fifteen-year period to his siblings equaling their share of the appraised value of the farmland at the time of Lawrence's death. [1] [¶ 4.] In November 1999, a jury ruled that the 1997 will was made through the undue influence of Lynette and Judene. We affirmed the verdict in Estate of Holan, 2001 SD 6, 621 NW2d 588. On remand, the 1991 will and its codicil were admitted to probate. On April 11, 2002, the court valued the farmland Dennis received under the will, and it ordered Dennis to pay each of the five devisees 13.3 percent of the value of the farmland. The payments were to be in fifteen annual installments, with interest at the rate of 5.98 percent calculated from the decedent's date of death, April 11, 1998, with the first of the annual payments due and owing as of April 11, 1999. [¶ 5.] On appeal, Dennis challenges the circuit court's decisions in ordering him to pay interest (1) calculated from the date of death of the decedent, and (2) at the rate permitted by the Internal Revenue Service at the time of Lawrence's death instead of the lower rate later approved by the IRS. [2] Under our standard of review, we will not set aside trial court findings of fact unless they are clearly erroneous. Estate of Dokken, 2000 SD 9, ¶10, 604 NW2d 487, 490 (citations omitted). Conclusions of law and rulings on statutory interpretation are reviewed de novo. Osloond v. Osloond, 2000 SD 46, ¶¶6-7, 609 NW2d 118, 121.",facts
+690,2382114,3,2,"Butler also claims that the evidence was insufficient to support the jury's finding that the two aggravating circumstances were present in this case. Where a defendant challenges the sufficiency of evidence to support an aggravating circumstance, the test is whether a reasonable juror could reasonably find from the evidence that the proposition advanced is true beyond a reasonable doubt. State v. Brown, 902 S.W.2d 278, 294 (Mo. banc 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995). Here, both are supported by the evidence. As we have already noted, the jury reasonably could have determined from the evidence that the victim's murder was committed by Butler for the purpose of obtaining the proceeds from Diana's life insurance policies and Diana's ring. This was sufficient for the jury to find the aggravating circumstance of murder for pecuniary gain. Additionally, the evidence was sufficient to support the jury's finding that the murder demonstrated depravity of mind. The jury was instructed that they could find this aggravator if they determined that the defendant committed repeated and excessive acts of physical abuse upon Diana Butler and that the killing was therefore unreasonably brutal. Dr. Vescovo testified that the victim suffered two gunshot wounds to the head. A gunshot wound to the head is an excessive act of physical abuse. The victim was shot twice in the head. Thus, the defendant committed repeated and excessive acts of physical abuse upon the victim. Point 13 is denied.",sufficiency of the evidence
+691,1442397,2,1,"At the center of the jurisdictional issue, and indeed of this case, is the proper construction of 28 United States Code section 1360. [3] Section 1360(a) gives certain states, including California, jurisdiction over civil disputes that involve Indians and arise in Indian country. Section 1360(b), however, limits the scope of such state power and jurisdiction: it specifies that section 1360(a) does not authorize the alienation, encumbrance or taxation of any real or personal property ... belonging to any Indian, or any Indian tribes, bands, or community, nor does it authorize the regulation of the use of Indian property in a manner inconsistent with any Federal treaty, agreement, or statute, or with any regulation made pursuant thereto. Finally, and most importantly for the present case, section 1360(b) provides that the general grant of civil jurisdiction does not  confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of [ Indian ] property or any interest therein. (Italics added.) [4]
+Section 1360 must be understood in the historical context of the relationship between the federal government, state government, and Indian tribes. A review of this history makes clear the federal government's predominance over Indian affairs in general and over Indian land policy in particular. (2) `The policy of leaving Indians free from state jurisdiction and control is deeply rooted in this nation's history.' ( McClanahan v. Arizona State Tax Comm'n (1973) 411 U.S. 164, 168 [36 L.Ed.2d 129, 133, 93 S.Ct. 1257].) This policy has two independent but interrelated bases: federal preemption and the internal sovereign rights of Indian tribes. ( White Mountain Apache Tribe v. Bracker (1980) 448 U.S. 136, 142 [65 L.Ed.2d 665, 671-672, 100 S.Ct. 2578].) Early decisions stress Indian sovereignty as the basis for the exclusion of states from Indian affairs. (See Worcester v. Georgia (1832) 31 U.S. (6 Pet.) 515, 556-557 [8 L.Ed. 483, 499-500].) This view has persisted, though in modified form, to the present day. Although Indian tribes do not possess the full sovereignty of independent nations, decisional law has continued to stress that Indian tribes are unique aggregations possessing `attributes of sovereignty over both their members and their territory.' ( New Mexico v. Mescalero Apache Tribe (1983) 462 U.S. 324, 332 [76 L.Ed.2d 611, 619, 103 S.Ct. 2378].) In more recent times, courts have come to favor federal preemption over inherent sovereignty as the primary justification for the preclusion of state authority over Indian affairs. (See McClanahan v. Arizona State Tax Comm'n, supra, 411 U.S. 164, 172.) The basis for this assertion of exclusive federal authority over Indian affairs is rooted in three provisions of the United States Constitution: the Indian commerce clause (art. I, § 8, cl. 3), which gives Congress the exclusive power to control Indian commerce; the treaty clause (art. II, § 2, cl. 2); and the supremacy clause (art. VI, cl. 2), which, together with extensive congressional legislation on Indian affairs, has broadly preempted state law. (Cohen, Handbook of Federal Indian Law (1982 ed.) pp. 207-208, 270-271 (hereafter Cohen).) The predominance of the federal government in Indian affairs is nowhere more pronounced than in the field of Indian property law. Most Indian lands are owned by the United States and held in trust for the benefit of Indians. (Cohen, supra, at p. 209.) In addition to the formal trust relationship, there is extensive federal legislation protecting Indian property and property claims. Chief among these are statutes that forbid the alienation of Indian tribal property without approval by the federal government. (25 U.S.C. §§ 177, 464.) Lands allotted by the government to individual Indians under the General Allotment Act of 1887 (25 U.S.C. § 348) are also subject to an indefinite federal trust period, and alienation of these lands is subject to prior federal approval as well. The subjection of Indian property to restrictions on alienation and federal trusteeship preempts certain state-law defenses to title actions, such as adverse possession, laches and estoppel by sale. (Cohen, supra, at p. 520.) Federal law also requires that in property disputes in which one party is non-Indian and the other Indian, the burden of proof is on the non-Indian litigant once the Indian party has shown presumption of title by virtue of previous ownership and possession. (25 U.S.C. § 194; see Wilson v. Omaha Indian Tribe (1979) 442 U.S. 653 [61 L.Ed.2d 153, 99 S.Ct. 2529] [construing 25 U.S.C. § 194 broadly in favor of the Indians].) The basis for this exclusive federal-Indian relationship regarding Indian land derives, again, both from notions of inherent sovereignty and federal preemption. Indian sovereignty is reflected in the unique nature of Indian title, which bestows a right not of ownership but of occupancy good against all but the sovereign United States government and is recognized as the basis for exclusive federal jurisdiction over Indian property. ( Oneida Indian Nation v. County of Oneida (1974) 414 U.S. 661, 667 [39 L.Ed.2d 73, 79, 94 S.Ct. 772].) From the concept of Indian title emerges the rudimentary propositions that Indian title is a matter of federal law and can be extinguished only with federal consent.... ( Id. at p. 670 [39 L.Ed.2d at p. 80].) Federal preemption arises from extensive federal Indian land legislation, such as the restrictions on alienation cited above. The protection of Indian trust land through federal legislation has been one of the principal means by which the federal government has sought to secure the economic well being and tribal autonomy of native Americans. (Cohen, supra, at pp. 196-200, 509.) If tribal lands were not subject to restraints on alienation and tax immunities, market forces and state tax assessors would eventually erode Indian ownership of the reservation. ( Id. at p. 509.) (3) The federal government's relationship to Indians and their land is not only exclusive but fiduciary. Courts have held the United States, as trustee of Indian property, to the obligation of acting in the Indians' best interest. (See, e.g., Seminole Nation v. U.S. (1942) 316 U.S. 286, 296-297 [86 L.Ed. 1480, 1490-1491, 62 S.Ct. 1049]; United States v. Kagama (1886) 118 U.S. 375, 383-384 [30 L.Ed. 228, 231, 6 S.Ct. 1109]; see also Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians (1975) 27 Stan.L.Rev. 1213.) The basis for this fiduciary relationship between the United States and the Indians was early articulated in United States v. Kagama, supra, 118 U.S. at page 384 [30 L.Ed. at page 231]: From [the Indians'] very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. Federal Indian land policy has itself oscillated between the promotion of Indian tribal autonomy and the desire to assimilate Indians as ordinary citizens into American society. A policy of allotting Indian tribal land to individual Indians in the late-19th and early-20th centuries was curtailed when the policy resulted in widespread alienation of Indian holdings and resultant landlessness of the allotment policy's intended beneficiaries. The Indian Reorganization Act of 1934 was part of a period in which tribal autonomy was actively promoted. Another assimilationist chapter in American Indian history resulted in the Termination Acts of the 1950's, pursuant to which numerous tribes were officially disbanded and their reservation land divided among tribal members. Finally, the period since the 1960's has been a time in which tribal self-sufficiency has largely been reaffirmed and extended. (See generally Cohen, supra, pp. 129-188.)
+Public Law number 280, of which section 1360 is part, was enacted by Congress in 1953 (67 Stat. 588) during an assimilationist period. It grants both civil and criminal jurisdiction over Indian country to six designated states, including California, and permits other states the option of assuming similar jurisdiction. The primary focus of the legislative history of Public Law number 280 is on section 2 (codified in 18 U.S.C. § 1162), which grants criminal jurisdiction. House Indian Affairs Subcommittee member Wesley D'Ewart cited as the impetus for Public Law number 280, [t]he complete breakdown of law and order on some reservations.... (Hearings Before the House Subcom. on Indian Affairs on H.R. No. 459, H.R. No. 3235, & H.R. No. 3624, 82d Cong., 2d Sess., ser. 11, at p. 14 (1952).) The lack of attention to the civil jurisdiction provision, Public Law number 280, section 4 (codified in 28 U.S.C. § 1360), has led one commentator to conclude that such jurisdiction was an afterthought ... added because it comported with the pro-assimilationist drift of federal policy.... (Goldberg, Public Law 280: The Limits of State Jurisdiction Over Reservation Indians (1975) 22 U.C.L.A.L.Rev. 535, 543 (hereafter Goldberg).) Little legislative history concerning section 1360(b) exists. (See Heffle v. State (Alaska 1981) 633 P.2d 264, 268, fn. 5.) What is known is that Public Law number 280 passed despite considerable opposition from Indian organizations, which feared state jurisdiction would in practice operate to the disadvantage of the Indians. The Indians in many instances preferred federal to state jurisdiction because the [Bureau of Indian Affairs], for all its faults, at least perceived the Indians as its special responsibility and concern. (Goldberg, supra, 22 U.C.L.A.L.Rev. at p. 545.) Perhaps because of this opposition, Public Law number 280, in its final form, represented an attempt at compromise between wholly abandoning the Indians to the states and maintaining them as federally protected wards, subject only to federal or tribal jurisdiction. ( Id. at p. 537.) Section 1360(b) is central to that compromise, and may be read as simply a reaffirmation of the existing reservation Indian-Federal Government relationship in all respects save the conferral of state-court jurisdiction to adjudicate private civil causes of action involving Indians. ( Bryan v. Itasca County (1976) 426 U.S. 373, 391 [48 L.Ed.2d 710, 722-723, 96 S.Ct. 2102] (hereafter Bryan ).) This reaffirmation of the existing reservation Indian-Federal Government relationship was accomplished by excepting from the grant of jurisdiction to the states any power to legislate on, or adjudicate matters pertaining to, land held by the United States in trust for the Indians. Thus, the exclusion of the states from acts leading to the alienation, encumbrance or taxation of Indian land has been construed to prohibit application of local zoning ordinances to such land ( Santa Rosa Band of Indians v. Kings County (9th Cir.1975) 532 F.2d 655) and taxation of individual Indian reservation dwellings ( Bryan, supra, 426 U.S. 373). Because Public Law number 280 was passed at the same time as various Termination Acts cited above, they are to be read in pari materia. ( Menominee Tribe v. United States (1968) 391 U.S. 404, 411 [20 L.Ed.2d 697, 702, 88 S.Ct. 1705].) The enactment of the Termination Acts makes it clear that Congress knew well how to express its intent directly when that intent was to subject reservation Indians to the full sweep of state laws and state taxation, and Public Law number 280 was plainly not intended for that purpose. ( Bryan, supra, 426 U.S. at p. 389 [48 L.Ed.2d at p. 721].) (4) Section 1360(b)'s jurisdictional bar should also be read in conjunction with the grant of federal jurisdiction to adjudicate Indian allotment claims (25 U.S.C. §§ 345-346), which the United States Supreme Court has interpreted as exclusive of state court jurisdiction. ( McKay v. Kalyton (1907) 204 U.S. 458 [51 L.Ed. 566, 27 S.Ct. 346].) Both 28 United States Code section 1360(b) and 25 United States Code sections 345-346 embody the principle that the exclusive federal-Indian trust relationship is best maintained by channelling all disputes about such land into federal court.
+Imperial's request for relief may be divided into three categories: (1) declaratory and injunctive relief affecting the Indian defendants' use of what such defendants claim is Indian trust land, (2) declaratory and injunctive relief, as well as damages, against non-Indians relating only to use of what all parties concede is non-Indian land, and (3) damages against the Indian defendants for acts committed on non-Indian land. We shall consider each in turn.
+(5a) Imperial's position appears to be that the road in question is manifestly public, and that, although it runs through Indian territory, it is not subject to Indian control. The trial court apparently based its denial of the Indian defendants' motion to dismiss on a finding that the road was indeed public. The Court of Appeal's reason for upholding state court jurisdiction was somewhat different from that advanced by Imperial or the trial court. First, the Court of Appeal conceded that it was unable to determine, on the present record, whether the road in question was public or, in fact, was part of Pala Indian trust land. Next, the Court of Appeal conceded that a state court may not assert jurisdiction over a lawsuit in which the underlying disputed property is admittedly Indian trust land and the only issue is the adjudication of nonpossessory rights to the property, such as easement rights. It held however, that if there is a possibility that the road is public, or is explicitly placed by the federal government under the jurisdiction of the state, then a state court may accept jurisdiction to determine the status of the road. If the court then finds the road to be public and state controlled, the court may assert its full jurisdiction to adjudicate the merits of the complaint. More specifically, the Court of Appeal reasoned as follows: (1) if there is a possibility that the road running through Indian territory is a public road, subject to state law, then a state court may provisionally assume jurisdiction of the complaint; (2) there are federal statutes, including two discussed below — 25 United States Code sections 311 and 323 — that provide for the construction of public roads, subject to state law, across Indian territory, and it is possible that their provisions apply to the present dispute; (3) therefore, the state court may provisionally assume jurisdiction of the case. To begin with, it is questionable whether the statutes cited by the Court of Appeal — 25 United States Code sections 311 and 323 — are applicable to this case. Section 311 authorizes the Secretary of the Interior to grant permission to open public highways through Indian reservation land in accordance with the laws of the State ... in which the lands are situated. This provision has been construed to permit states to apply their own law to the operation as well as to the establishment of highways constructed pursuant to this provision. ( U.S. v. Oklahoma Gas Co. (1943) 318 U.S. 206 [87 L.Ed. 716, 63 S.Ct. 534].) Section 323 authorizes the Secretary of the Interior to grant rights-of-way across Indian trust land. Nowhere in Imperial's complaint or elsewhere in the sparse record before us, however, is it suggested that there has been a grant by the Secretary of the Interior or that either of these statutes applies to the present case. But even if Imperial did make such a claim, the major premise of the Court of Appeal's reasoning remains fallacious: section 1360(b) precludes states from asserting jurisdiction over disputes concerning Indian land, including — as here — disputes in which one party claims the disputed property is non-Indian. As will appear, in order for section 1360(b)'s jurisdictional preclusion to operate and its protective purpose to be fulfilled, the threshold question must be whether one possible outcome of the litigation is the determination that the disputed property is in fact Indian trust land. If that outcome is possible, then a state court is barred from assuming jurisdiction of the case. The reasons for construing the statute in this manner derive from the canons of construction for Indian statutes and treaties in general, from the language of the statute itself, and from the evident purpose of the statute. (6) We look first to the canons of construction of statutes concerning Indians. The primary principle for construing statutes such as section 1360, that were `passed for the benefit of dependent Indian tribes,' is that they `are to be liberally construed, doubtful expressions being resolved in favor of the Indians.' ( Bryan, supra, 426 U.S. at p. 392 [48 L.Ed.2d at pp. 722-723].) This principle is but a variant of the long-held canon that Indian treaties are to be construed as far as possible ... in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people. ( Tulee v. Washington (1942) 315 U.S. 681, 684-685 [86 L.Ed. 1115, 1120, 62 S.Ct. 862]; see also Cohen, supra, at pp. 223-224.) (5b) With this principle in mind, we proceed to the text of section 1360(b) (fn. 4, ante ). The language plainly supports the position that state court jurisdiction is barred whenever one litigant claims the disputed property is Indian trust land. The statute plainly declares that section 1360(a)'s general grant of civil jurisdiction to the states does not include the jurisdiction to adjudicate ... the ownership or right to possession of [Indian] property or any interest therein. Such language cannot be understood to apply merely to disputes about nonpossessory rights to indisputably Indian property, and it does not differentiate between particular types of ownership disputes. The use of the broad term ownership signifies that one class of disputes barred from state court jurisdiction is that in which one side claims that the disputed property is Indian land and the other side claims the contrary. This is such a case. An alternative construction of section 1360(b), which neither the Court of Appeal nor Imperial specifically proposes, might be that the term ownership applies only to disputes between Indians about what both sides concede to be Indian land. Even if this construction were an equally plausible reading of the statute, however, it would be the construction less consistent with the maintenance of protective federal supervision over Indian land interests and therefore disfavored under the decisions cited above. Moreover, canons of construction aside, the broader construction seems more in harmony with the sweeping language of section 1360(b) itself: by excepting from state jurisdiction the right to adjudicate ownership, or right to possession ... or any interest  in Indian property (italics added), the statute seems intent on comprehensively excluding from state courts the whole class of cases involving Indian property rights, including ownership disputes in any form involving Indian trust land. Finally, the validity of that construction is confirmed by the evident purpose of section 1360(b). (7) As stated in Bryan, supra, 426 U.S. at page 391 [48 L.Ed.2d at pages 722-723], Congress intended section 1360(b) to help preserve the property base of the reservation system. One cornerstone of that system is the exclusive and protective federal jurisdiction over Indian trust land and Indian allotments, and the requirement of prior federal approval for any alienation of Indian property in order to prevent the loss of reservation land to market forces and state taxation. Section 1360(b) seeks to maintain that protective exclusivity by denying to states the ability both to legislate concerning Indian property and to adjudicate disputes involving that property. This exclusivity would hardly be maintained if state courts were allowed to assert concurrent jurisdiction over certain kinds of ownership disputes because of the mere possibility — denied by the Indian party — that the federal government had ceded control of the disputed property to the state. It would be strange indeed if section 1360(b) precluded state courts from removing any stick from the bundle of Indian property rights except the most substantial one — that of ownership. State courts would then be able to redraw the map of Indian property and, by device, breach the exclusive federal-Indian relationship over Indian trust land. Put another way, different constructions of section 1360(b) permit different types of jurisdictional error to occur more frequently. (5c) Under the broader construction of section 1360(b) that we adopt, certain types of ownership disputes that are in reality nothing more than ordinary state-law property disputes may be initially and temporarily shunted into federal court, because of erroneous claims that the land in question is Indian trust land. The federal court, of course, may transfer the matter to state court. Under the narrower construction of the statute urged by Imperial, however, certain cases will be erroneously decided in state court, both with respect to the subject matter jurisdiction of the court itself and the merits, by mistakenly denying valid claims of Indian parties. Given its intent to preserve federal authority over Indian trust land by operation of section 1360(b), it seems evident that, if error there is to be, Congress preferred the first type to the second. Thus, it makes no difference if a plaintiff claims that the land is owned by himself, by the state, or is under state jurisdiction by virtue of federal government action. As long as the Indian party to the litigation claims that the property is Indian trust or allotted land, the dispute may be characterized as one concerning ownership and possession of Indian land, and is therefore barred from state court jurisdiction. We have no difficulty in distinguishing U.S. v. Oklahoma Gas Co., supra, 318 U.S. 206, cited by the Court of Appeal for the proposition that highways constructed pursuant to 25 United States Code section 311, discussed above, are to be governed by state law. In that case, both sides conceded that section 311 applied to the road in question; here neither side alleges the applicability of the statute. Indeed, if Imperial were to so allege the Indian defendants would no doubt deny it, because such applicability is inconsistent with their position that the Pala Band has sole dominion over the portion of the road running through its property. Such a dispute over the applicability of section 311 — that is, of the ability of the state to control a road running through Indian territory — is precisely the kind of controversy over ownership, possession, or other interests in Indian land that section 1360(b) precludes state courts from adjudicating. [5] At least one other court has concluded that section 1360(b) applies to underlying ownership claims of Indian land against state assertions of ownership and control. In State of Alaska, Dept. of Public Works v. Agli (D.Alaska 1979) 472 F. Supp. 70, the State of Alaska brought quiet title and ejectment actions in state court against Eskimos occupying land that Alaska claimed had been conveyed to it by the federal government. The Eskimos claimed the property belonged to them under the Alaska Native Allotment Act of 1906 (former 43 U.S.C. §§ 270-1 to 270-3 [repealed 1971]). The Eskimos attempted to remove the dispute to federal court, and the federal court was required to determine whether the state court had properly asserted jurisdiction ab initio. Although on the face of the complaint the action involved only state-law claims, the court looked `beyond the verbiage of the state court complaint to the substance of plaintiff's claimed grievance.' (472 F. Supp. at p. 72.) The court concluded that the state court had been asked in essence to adjudicate the validity of a native ownership claim, which section 1360(b) barred it from doing. (472 F. Supp. at pp. 73-74; see also Heffle v. State, supra, 633 P.2d 264 [claim of state-created easement in Indian road must be adjudicated in federal court].) Imperial also argues that because the road running through Indian property is manifestly non-Indian, the rule that Indians have little right to assert jurisdiction over non-Indian property within the borders of the reservation bars the Indians from interfering with any portion of the dirt road. (See Montana v. United States (1981) 450 U.S. 544 [67 L.Ed.2d 493, 101 S.Ct. 1245]; Brendale v. Confed. Tribes & Bands of Yakima Indian Nation (1989) 492 U.S. 408 [106 L.Ed.2d 343, 109 S.Ct. 2994].) As already discussed at length, however, this contention assumes as true precisely those jurisdictional facts that are in dispute; thus it cannot be the basis for assuming jurisdiction under section 1360(b). Finally, we undertake to formulate the threshold test that our state courts should use to determine whether they have jurisdiction to adjudicate a property dispute involving an Indian party. (8) The general rule is that subject matter jurisdiction is determined from the face of a well-pleaded complaint. ( Oneida Indian Nation v. County of Oneida, supra, 414 U.S. at p. 676 [39 L.Ed.2d at p. 84].) When the complaint is in an area completely preempted by federal law, the well-pleaded complaint rule is supplemented, with regard to federal-question jurisdiction, by the complete preemption doctrine. Under that doctrine, it is settled that once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. ( Caterpillar, Inc. v. Williams (1987) 482 U.S. 386, 393 [96 L.Ed.2d 318, 328, 107 S.Ct. 2425].) The United States Supreme Court has specified that Indian property law is one area in which the complete preemption doctrine is applicable. ( Id. at p. 393, fn. 8 [96 L.Ed.2d at p. 328].) In the case of section 1360(b) the concern is not whether a federal question exists that would allow a federal court to assume jurisdiction, but rather whether a dispute over Indian land exists within the meaning of section 1360(b) that would bar state court jurisdiction. (9) Therefore, whenever a party claims that the state court has no subject matter jurisdiction under section 1360(b), it is incumbent on the state court, as in the case of areas of law completely preempted, to look beyond the face of the complaint in order to determine from the totality of the pleadings whether the case before it is a dispute over the ownership or right to possession [of Indian land] or any interest therein. If it appears from the pleading that the case may be so characterized, and that one possible outcome of the case may be a finding that the property in dispute is Indian trust land, the court must dismiss the case for want of subject matter jurisdiction. (5d) Applying this standard here, we find it evident from the pleadings that at least part of this dispute is about the ownership or right of possession of Indian land, as well as a dispute about interests in such land. The facts alleged in the complaint and in the motion to dismiss — i.e., that the road runs through what both sides concede to be Indian land and that there is a factual dispute about whether the road is public — make it clear that the dispute concerns Indian property rights. Thus, as we shall elaborate below, that part of the complaint that asks for the adjudication of rights to purportedly Indian land — i.e., requests for declaratory and injunctive relief that would affect the right, title or use by the Indian defendants of those portions of the contested road running through parcels 2 and 4 — cannot be adjudicated by a court of this state.
+No party claims that section 1360(b) bars liability of the non-Indian defendants (the Bradfords) for actions taken on non-Indian property, and, indeed, the Bradfords did not join the Indian defendants' motion to dismiss. Therefore, the state court may adjudicate the question whether an injunction should issue to remove the gate welded shut over the portion of the road that traverses the Agua Tibia Ranch, as well as the claim of damages against the Bradfords for such an obstruction.
+Imperial also alleges that the Indian defendants acted in concert with the non-Indian defendants (the Bradfords) to obstruct the portion of the road running through the Agua Tibia Ranch. The question whether the Indian defendants acted tortiously on concededly non-Indian land does not require a determination of Indian property rights. Therefore, the damage claim against the Indian defendants for actions taken outside the reservation is not barred by section 1360(b). Whether it is barred by the sovereign immunity of the Indian defendants as officers of a recognized Indian tribe, as they contend, is a separate question to which we now turn.",jurisdiction
+692,1759501,1,1,"Beverly Chopin, the office manager of Mississippi Neurosurgery, P.A., testified that she is the custodian of billing records, including hospital records and care provided by the physicians, and takes care of insurance claims for Mississippi Neurosurgery, P.A. She testified that on May 28, 1991, Petrick was admitted to the Golden Triangle Regional Medical Center emergency room unconscious. Dr. Poche of Mississippi Neurosurgery, P.A., was on call and treated Petrick. Dr. Poche subsequently performed a craniotomy for an aneurysm. Chopin sent out a bill for those services on October 7, 1991, addressed to the Estate of Richard Petrick, 934 Yorkville RD South, requesting payment in the amount of $6,220.00. At the time of this billing the payment was 120 days past due. Chopin testified that since Petrick's surgery was in June, in accord with her company's policy, statements began to go out in July. She got no response from any billing until she began receiving returned mail in October. Chopin testified that she spoke with Alice Vann upon learning through Boundary Health Care that the insurance checks for Petrick's hospital stay and medical services had been issued to Petrick. Boundary Health Care gave Chopin Vann's telephone number. Chopin called Vann and found out that Vann had received the Blue Cross payments for the partial cost of Petrick's care. This was approximately November 30, 1991. Chopin admitted that at this time she knew that the estate had been set up and that Vann was depositing checks into the estate account. Chopin said she never received notice from the estate that the insurance checks had been received, and did not file a claim against the estate until January 7, 1992. Chopin testified that although she reads The Commercial Dispatch, neither she nor anyone else at Mississippi Neurosurgery, P.A., saw the publication giving notice to creditors. Alice Vann testified as an adverse witness that she was the administratrix of the estate of her ex-husband, and that she was aware that he went into the hospital in May, 1991. Vann did not know why Petrick was in the hospital, but she was aware that he died of a cerebral hemorrhage. Vann stated that Boundary Health Care and her lawyers made most of the inquiries to determine creditors. Vann thought she remembered the name of Dr. Poche, but she had never received an invoice for his services. Vann testified she had no reason to call Mississippi Neurosurgery, P.A., or Dr. Poche's office to ask about any outstanding bills because she handled everything through Blue Cross through Boundary. Vann said that Boundary Health Care and two attorneys assured her that all billing had been taken care of and that everything had been paid. She did not personally check the break down of the billing nor did she look for individual invoices. She just knew the total amount for which the estate was responsible according to the lawyers and Boundary Health Care. Vann trusted that the estate attorney and her ex-husband's employer had been thorough in their search for potential creditors. When asked how GTR and the Anesthesiology group from GTR made it onto her affidavit, while Dr. Poche and Mississippi Neurosurgery, P.A., did not, Vann said she did not know the individual doctors who were involved. Vann testified that she did not personally send Mississippi Neurosurgery, P.A., notice to probate a claim, but believed that her lawyers did. Vann was unable to produce a document to that effect, however. When Vann was asked, in reference to her affidavit, what reasonably diligent efforts she had made to ascertain creditors, she replied, [y]ou would really have to talk to Boundary Health Care and GTR. Vann testified that she did not personally call every doctor at GTR, but she hired a lawyer to handle all of that legal work. Vann testified that starting around June 20, 1991, she opened and read all of Petrick's mail and never found a bill from Mississippi Neurosurgery, P.A., or Dr. Poche. She did know that Dr. Poche was a neurosurgeon. Vann did not specifically remember talking with Chopin about a bill, but stated that whenever she was contacted regarding a bill, she requested that the interested party send an invoice and call the estate lawyer. Vann did testify that the estate attorney told her he had been contacted about outstanding medical bills, and said he had told those parties to file a claim. Vann concluded that she had done all that she could to ascertain creditors of Petrick's estate. Vann admitted that when talking about all her efforts to ascertain creditors, she really meant the efforts of Boundary Health Care and her lawyers.",facts
+693,889413,1,4,"¶ 31 Whether the District Court erred in including in LaMoine's share of the marital estate the proceeds of a class-action settlement LaMoine received in 2001 as well as a Social Security disability payment she received in error and that had to be repaid. ¶ 32 LaMoine argues that the District Court erred in including in the marital estate the money LaMoine received from the Fen-Phen settlement in 2001 because that money no longer exists; it was entirely dissipated during the marriage. LaMoine also argues that the court erred in including in the marital estate a debt of $3,500 in the form of a repayment to the Social Security Administration because there was no evidence presented at trial regarding the amount of the repayment, when it was repaid, or by whom. ¶ 33 We agree with LaMoine that in both instances the District Court awarded property that did not exist. We have repeatedly held that, in a dissolution action, a court cannot distribute non-existent property from the marital estate. To do so is an abuse of the District Court's discretion. In re Marriage of Harris, 2006 MT 63, ¶ 31, 331 Mont. 368, 132 P.3d 502 (citing In re Marriage of Dennison, 2006 MT 56, ¶ 22, 331 Mont. 315, 132 P.3d 535). ¶ 34 LaMoine testified at trial that she spent the money from the Fen-Phen settlement on new carpet and linoleum for the marital home; a new bed for her and Michael; new bedroom furniture for Michael's son Jesse; and a used Cadillac. Michael testified that instead of spending the money on their home, LaMoine bought her daughter a truck and spent the rest of it on her grandchildren. However, Michael did not introduce any evidence to dispute LaMoine's testimony or to support his own. Either way, the money was spent long before the parties' May 2006 date of separation. ¶ 35 Moreover, Michael did not contribute to the value or receipt of these funds as this was a settlement LaMoine received for a potential personal injury to herself. Consequently, the Fen-Phen settlement should not be considered as part of the marital estate on remand. ¶ 36 Similarly, there was conflicting testimony by the parties at trial as to how the disability check LaMoine mistakenly received from the Social Security Administration was repaid. LaMoine testified that she thought the money was withheld from her paycheck, while Michael testified that the money was withheld from his tax rebate. Neither party presented evidence as to the amount of the repayment or how exactly it was repaid. Nevertheless, from the parties' testimony, this repayment appears to have occurred in 2001, long before the parties' separation in May 2006. Furthermore, both parties asserted in their pleadings and at trial that there were no outstanding marital debts, thus the District Court erred in considering this a debt owed by LaMoine. Consequently, the Social Security repayment should not be considered as part of the marital estate on remand. ¶ 37 Accordingly, we hold that the District Court erred in including in LaMoine's share of the marital estate the proceeds of the Fen-Phen settlement as well as the Social Security disability payment.",issues
+694,4520088,1,4,"Wage Act The Wage Act requires an employer to pay “unpaid wages” to an employee who separates from the payroll.4 It defines “[w]ages” to include “fringe benefits, when previously agreed to and conditions stipulated have been met by the employee.”5 The Wage Act further provides that “[p]aid leave, other than earned but unused vacation leave, provided as a fringe benefit by the employer shall not be included in the wages due and payable at the time of separation, unless the employer and the employee or the employer and the collective-bargaining representative have specifically agreed otherwise.”6 [3] In Fisher v. PayFlex Systems USA,7 a majority of this court determined that because the employees in that case could use PTO hours for any purpose, the unused PTO hours must be treated the same as earned but unused vacation hours, i.e., a wage that must be paid upon separation of employment. 2 Williamson v. Bellevue Med. Ctr., ante p. 312, 934 N.W.2d 186 (2019). 3 Professional Firefighters Assn. v. City of Omaha, 290 Neb. 300, 860 N.W.2d 137 (2015). 4 § 48-1230(4)(a). 5 § 48-1229(6). 6 Id. 7 Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013). - 866 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports DROUGHT v. MARSH Cite as 304 Neb. 860 The dissent identified two difficulties in applying the law to the facts of the case: (1) The Legislature did not define the term “‘vacation leave’” and (2) the employer’s PTO policy allowed employees to use PTO for both vacation and other purposes in the employee’s discretion.8 Although the dissent invited clarification by further amendment of the statute and the Legislature indeed amended § 48-1229 the following year,9 it did not provide any clarification regarding vacation leave or fringe benefits payable upon separation. Where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court’s determination of the Legislature’s intent.10 Thus, PTO which can be used as vacation leave should be treated the same as earned but unused vacation leave under the Wage Act. Entitlement to PTO Under Agreement The crux of Drought and Fessler’s argument is that Longwells owed them PTO because the employment agreement—which they were required to sign—contained a section concerning PTO. We disagree. [4] The statute imposes three requirements. Under § 48-1229, an appellate court will consider a payment a wage subject to the Wage Act if (1) it is compensation for labor or services, (2) it was previously agreed to, and (3) all the conditions stipulated have been met.11 Here, the decision turns upon the third requirement. Drought and Fessler’s claim fails the third requirement, because they did not satisfy the conditions set forth in the 8 Id. at 824, 829 N.W.2d at 716 (Stephan, J., dissenting; Heavican, C.J., and Cassel, J., join). 9 2014 Neb. Laws, L.B. 765, § 1. 10 Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017). 11 Fisher v. PayFlex Systems USA, supra note 7. - 867 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports DROUGHT v. MARSH Cite as 304 Neb. 860 agreement. Under the agreement, an employee earned PTO “per 40 hour + week billed.” The agreement specified that earnings were based on billable hours and that an employee will not be considered to have earned billable hours if the employee did not produce an approved timesheet “signed off ” by a client designee. But Drought and Fessler were paid a set salary—they did not have clients, did not have billable hours, and did not submit timesheets. Drought and Fessler attribute significance to the past payment of vacation time. They argue that if billing clients and proving a 40-hour workweek had been required to earn PTO, Longwells would not have paid them for their PTO during their employment. But it appears from the evidence that as salaried employees, Drought and Fessler were paid the same amount each week no matter how many, if any, hours they worked. Drought and Fessler assign that the district court erred in failing to address Longwells’ assertion of a mutual mistake, which they argue does not apply to a unilateral employment agreement. However, the court had no need to do so. Drought and Fessler claimed they were entitled to PTO due to the inclusion of a PTO section in the employment agreement. But because they did not meet the conditions required under the written employment agreement to earn PTO, it is not a wage subject to the Wage Act.12",analysis
+695,4569666,1,1,"The State of Nebraska seeks appellate review of the district court’s dismissal of charges filed against Deborah S. Archer and Cory L. Russell. The Nebraska Court of Appeals granted leave to appeal, and we moved this case to our docket. We overrule the State’s exceptions.",introduction
+696,6329099,1,1,"Over 3 years after a decedent’s death, an estate was opened for the purpose of serving a lawsuit against the decedent. - 984 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 The probate court appointed the decedent’s mother as personal representative, ordered that letters be issued to her, and issued such letters even though the mother had not accepted the appointment. Because the issuance of letters of personal representative was an unauthorized action without the appointee’s qualification, we reverse, and remand for further proceedings.",introduction
+697,2520864,1,2,"Issue 1: Did the district court have jurisdiction over the charged offenses? James argues the Johnson County District Court did not have territorial jurisdiction. Whether a court has jurisdiction over a matter is a question of law over which this court has unlimited review. State v. Jacques, 270 Kan. 173, Syl. ¶ 11, 14 P.3d 409 (2000). The Kansas criminal territorial jurisdiction statute, K.S.A. 21-3104, provides in relevant part: (1) A person is subject to prosecution and punishment under the law of this state if: (a) He commits a crime wholly or partly within this state; or (b) Being outside the state, he counsels, aids, abets or conspires with another to commit a crime within this state; or (c) Being outside the state, he commits an act which constitutes an attempt to commit a crime within this state. (2) An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state. If the body of a homicide victim is found within this state, the death is presumed to have occurred within the state.  (3) A crime which is based on an omission to perform a duty imposed by the law of this state, is committed within the state, regardless of the location of the person omitting to perform such duty at the time of the omission. (Emphasis added.) The district court determined that jurisdiction existed pursuant to the provisions italicized above. It first reasoned that material elements of the offense of involuntary manslaughter, under each of the three theories, occurred in Kansas. K.S.A. 21-3104(2). It next reasoned that both victims were found dead in Kansas. K.S.A. 21-3104(2). James argues that the district court erred because all his wrongful conduct occurred in Missouri, the State could not establish that the deaths occurred in Kansas and the statutory presumption based upon finding the body in Kansas does not apply to the circumstances of this case. We need not examine these arguments, however, because jurisdiction is more clearly established by K.S.A. 21-3104(3). While the district court concluded James had committed a crime of omission by depriving the decedents of his services as a caretaker under K.S.A. 21-3437(a)(3), it did not take the next step of using that omission to establish jurisdiction under K.S.A. 21-3104(3). We do so now under the general authority of Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, Syl. ¶ 3, 863 P.2d 364 (1993) (district court's conclusion that it could exercise jurisdiction was correct, although reasons stated for conclusion were not, since district court's reasons for its decisions are immaterial if ruling was correct for any reason). Our determination that James' crime is one based upon such an omission requires several analytical steps. First, we examine the statute for involuntary manslaughter, the crime of which James was convicted. K.S.A. 2002 Supp. 21-3404 states in relevant part: Involuntary manslaughter is the unintentional killing of a human being committed: . . . . (b) in the commission of, or attempt to commit . . . any felony . . . that is enacted for the protection of human life or safety or a misdemeanor that is enacted for the protection of human life or safety. . . . Second, we examine K.S.A. 21-3437, the crime cited by the district court as underlying the conviction for involuntary manslaughter because the deaths occurred during the commission of a felony or misdemeanor enacted for the protection of human life or safety. This statute defines the crime of mistreatment of a dependent adult and states in relevant part: (a) Mistreatment of a dependent adult is knowingly and intentionally committing one or more of the following acts: . . . . (3) omitting or depriving treatment, goods or services by a caretaker or another person which are necessary to maintain physical or mental health of a dependent adult. . . . . (d) Mistreatment of a dependent adult . . . as defined in subsection. . . (a)(3) is a class A person misdemeanor. (Emphasis added.) K.S.A. 2002 Supp. 21-3404(b) reveals that involuntary manslaughter includes committing a misdemeanor which is enacted for the protection of human life or safety. Subsections (a)(3) and (d) of 21-3437 make omission or deprivation of treatment, goods, or services by a caretaker which are necessary to maintain physical or mental health of a dependent adult a class A person misdemeanor. Kansas law defines dependent adult as an individual 18 years of age or older who is unable to protect their own interest. (Emphasis added.) K.S.A. 21-3437(c). As a result, they are reliant upon their caretakers to protect their interest. We therefore agree with the district court that the criminal statute K.S.A. 21-3437 is designed to protect human life or safety. This determination also helps support our conclusion that jurisdiction exists under K.S.A. 21-3104(3), i.e., for a crime which is based on an omission to perform a duty imposed by the law of this State. As previously noted, adults in Kansas who are unable to protect their own interest are dependent upon their caretakers. It logically follows that their caretakers possess an affirmative duty to provide this protection. Accordingly, a caretaker's omission or deprivation of treatment, goods, or services which are necessary to maintain a dependent adult's physical or mental health is not only a crime under K.S.A. 21-3437(a)(3), but more importantly it is also a crime based on the omission to perform a duty imposed by the law of this State under K.S.A. 21-3104(3). See People v. Caruso, 119 Ill. 2d 376, 519 N.E.2d 440 (1987), cert. denied 488 U.S. 829 (1988) (An omission to perform a duty forms the foundation or essence of an offense if to perform the offense requires the accused to fail to perform his or her affirmative duty as imposed by the law of this State.). The facts reveal that James deprived two residents of an adult care home — who were entrusted to his care and entirely dependent upon that care for all but the simplest tasks — of treatment or services necessary to maintain their physical or mental health. This deprivation violated his duty to them as imposed by Kansas law. Although James' conduct was not as clearcut as if he had withheld their life-supporting prescription medication, he nevertheless deprived O'Neal and Warren of services, i.e., the considerable attention, direction, and supervision that they required. Evidence in the record indicates they would not have left the car until James had returned and granted them permission. Even assuming they had been mentally capable of exercising some independent action by attempting to exit the car without his permission, other evidence indicates the child safety locks would have prevented their escape. Moreover, once James discovered their dire condition, he failed to timely provide adequate treatment or services which might have saved their lives. Exactly where his criminal conduct occurred, Kansas or Missouri, is irrelevant to our conclusion that jurisdiction exists under K.S.A. 21-3104(3) (A crime which is based on an omission to perform a duty imposed by the law of this state, is committed within the state, regardless of the location of the person omitting to perform such duty at the time of the omission.). Our decision is well supported by Kansas law. K.S.A. 21-3104 was passed by the Kansas Legislature in 1969 as part of a comprehensive revision to the criminal code. L. 1969. ch. 180, sec. 21-3104. The Kansas Judicial Council notes from 1968 state that subsection (3) clarifies the status of the negative act done outside the State. See K.S.A. 21-3104 (Ensley 1988). While these notes express that the subsection is particularly applicable to child desertion cases and that it restates the view that has long been taken in Kansas, subsection (3) has been applied to another context. In State v. Jones, 9 Kan. App. 2d 106, 673 P.2d 455 (1983), the Court of Appeals applied it to an escape from custody crime. While defendant Jones was in the Allen County jail awaiting trial for felony theft, he was taken by the sheriff under a court order to a Coffeyville hospital for treatment for a heart condition. Under that doctor's orders he was taken by ambulance to a Kansas City, Missouri, hospital. After he was released from the hospital, he fled and was later apprehended in California. The court first concluded that his failure to return constituted an escape because his delivery to the hospital for treatment was temporary leave lawfully granted pursuant to . . . order of a court, as defined by the aggravated escape statute, and he failed to return to custody following it. More important to the instant case, the Jones court held the crime was one over which Kansas had jurisdiction: K.S.A. 21-3104(3) says defendant's `omission to perform a duty imposed by the law of this state,' i.e., to return to custody, resulted in a crime `within the state.' As the Judicial Council note reflects, the statute codifies the common law principle that a person may commit a crime within this state while remaining outside of it, and such crime may be an act of omission as well as an act of commission. See In re Fowles, 89 Kan. 430, 131 Pac. 598 (1913). 9 Kan. App. 2d at 106-07. Nine years later in State v. Grissom, 251 Kan. 851, 889, 840 P.2d 1142 (1992), we held that K.S.A. 21-3104 is to be interpreted broadly. Illinois also provides persuasive support for our decision as its criminal jurisdiction statute served as the basis for subsection (3) of K.S.A. 21-3104. See K.S.A. 21-3104 (Ensley 1988), Judicial Council note, 1968. Section 1-5 of the Illinois Criminal Code of 1961 (now Ill. Comp. Stat. ch. 720, § 5/1-5 [c] [2002]) states in relevant part: (c) An offense which is based on an omission to perform a duty imposed by the law of this State is committed within the State, regardless of the location of the offender at the time of the omission. In People v. Caruso, 119 Ill. 2d 376, the Illinois Supreme Court extended the subsection's reach to the context of child abduction. The court held that Illinois authorities had jurisdiction to charge the defendant with child abduction for detaining his children in the state of Ohio in violation of an Illinois court order which had granted custody to his former wife. The father contended that Illinois lacked jurisdiction because his conduct was entirely committed in Ohio. The court determined, however, that Illinois properly asserted criminal jurisdiction over his conduct since the charge was based on an omission to perform a duty imposed by the law of Illinois. 119 Ill. 2d at 382-83, 384-87. The Caruso court, like this court in Grissom, observed that its statute was to be interpreted broadly to establish jurisdictional basis for the prosecution of offenses in Illinois. It noted that the reach of Illinois' criminal jurisdiction under the subsection was not limited by strict territorial considerations but was based on the State's interests in the performance of the duty imposed. The court also addressed the dangers of unlimited expansion of jurisdiction: The phrase `omission to perform a duty' in section 1-5(c) (emphasis added) indicates that the duty involved must be an affirmative duty, that is, a duty to positively act. Requiring that the duty be affirmative is necessary to avoid an absurdity. If the definition of duty under section 1-5(c) included a passive duty, that is, a duty to refrain from certain conduct, then the entire Criminal Code could fit under section 1-5(c). For example, it might be said that everyone has a duty to refrain from killing or stealing. Complying with that duty to refrain from that conduct does not require an individual to `perform' any act. 119 Ill. 2d at 383. While both Jones and Caruso dealt with violations of court orders, such orders are not required by K.S.A. 21-3104(3). A defendant need only commit a crime based on an omission to perform a duty imposed by the law of this State. See also State v. Wolfe, 2000 WL 1370136 (Ohio App. 2000) (unpublished opinion) (finding jurisdiction in state of car rental agency under similar statute based upon failure to return rented automobile); State v. McGill, 115 Or. App. 122, 124-25, 836 P.2d 1371 (1992) (finding jurisdiction in location of rental shop under similar statute based upon failure to return rented television set). Based upon the unique facts of this case, the Johnson County District Court therefore had jurisdiction under this provision. Issue 2: Did the district court err in failing to suppress James' statements to the police? James alleges that the district court erred in failing to suppress his statements. More specifically, he claims they were elicited in a custodial interrogation in which the officer failed to advise him of his rights as required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). Accordingly, he demands a new trial. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him or her in custody. State v. Fritschen, 247 Kan. 592, Syl. ¶ 2, 802 P.2d 558 (1990). The threshold issue is therefore whether James was in custody when the statements were made; this determination is made on a case-by-case basis according to the facts. 247 Kan. at 597, 603. An objective standard is used to judge whether an interrogation is custodial. The proper analysis is how a reasonable person in the suspect's position would have understood the situation. 247 Kan. 592, Syl. ¶ 2. The district court determined that James was not in custody at the time he gave the statements. Some ambiguity has arisen over our standard of review of this issue. Fritschen and some other cases suggest the custody determination is a finding of fact and, consequently, that our review is only for substantial competent evidence to support the finding. See 247 Kan. at 605 (record contains evidence to amply support trial court's finding that Fritschen was not in custody); State v. William, 248 Kan. 389, 406, 807 P.2d 1292, cert. denied 502 U.S. 837 (1991) (trial court ruled that William was not in custody, and record contained substantial competent evidence to support that conclusion). After a suppression hearing, this court in State v. Haddock, 257 Kan. 964, 976, 897 P.2d 152 (1995), reviewed the trial court's ruling that defendant was not in custody as follows: If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court. [Citation omitted.] This court has used language similar to Haddock's in other cases to describe its deferential standard of review on the issue of custody, but ambiguity has arisen when we have also analyzed issues intertwined with custody: When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily, and knowingly given, and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence. [Citation omitted.] State v. Clemons, 251 Kan. 473, 480, 836 P.2d 1147 (1992). See State v. Valdez, 266 Kan. 774, 790-01, 977 P.2d 242 (1999). In our most recent case involving custody, State v. Washington, 275 Kan. 644, 661, 68 P.3d 134 (2003), we stated that our standard for reviewing the issue contains two steps: Thus, the standard to be applied is that the appellate court reviews the factual underpinnings of a district court's decision that the defendant was not in custody by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. The determination is made based upon a totality of the circumstances applying the objective standard of a reasonable person. See Fritschen, William, and Toothman.  This statement in Washington was based primarily upon our standard of review in suppression of evidence cases, e.g., State v. Toothman, 267 Kan. 412, 416, 985 P.2d 701 (1999), of which custody determinations are a subset. In Toothman, we stated: An appellate court reviews the factual underpinnings of a district court's decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of the evidence is a legal question requiring independent appellate review. 267 Kan. at 416. We reaffirm our two-step analysis articulated in Washington for reviewing district court determinations of whether custody existed at the time defendant's statements were made that he later wishes to suppress. We repudiate the language in our prior cases which expressly states or infers that the custody determination is solely a factual one subject to a different analysis. We also clarify that the Washington language referring to totality of the circumstances refers only to the district court's review of all the facts which are relevant to how a reasonable person in the suspect's position would have understood the situation, i.e., whether in custody or not, since this determination is made on a case-by-case basis. See 275 Kan. at 661. Having clarified our standard of review, we first determine if the district court's findings in the instant case were supported by substantial competent evidence. The district court found that when the officers first became involved they faced a situation involving two unattended deaths they knew little about and were consequently required to learn what had happened. It also found that James' own testimony indicated the hospital staff, not law enforcement officers, put him in the private waiting room. The court further found that though James spent some time in the room with an officer outside the door, this was appropriate because law enforcement needed to talk with the person who had brought the decedents to the hospital to learn what had happened. The court further found that James was allowed to remain in the room with all of his personal property including a cell phone and access to the hospital's telephone. It additionally found that he used the telephone and the hospital chaplain apparently was there with him. The district court additionally found that James was transported to the police station so the detective could inquire about the unattended deaths. The court also noted there were never any handcuffs or shackles of any kind and that James' property, including his telephone and pager, remained with him at all times at the station. While the court acknowledged that much of the questioning occurred at the police station and that James testified to the officer holding up his hand to stop James from leaving and being escorted by the officers with their hands on him at times, the court also observed it was entitled to consider the totality of the facts and circumstances. The court also acknowledged its entitlement to give weight to the evidence and to judge the credibility of witnesses. The court acknowledged that James had spoken with an attorney but found that, under the circumstances, a reasonable person would have cooperated with such an investigation and proceeded despite the consultation. The court further found that since James was unaware of the Missouri warrant until after the questioning concluded, the warrant did not convert the questioning into a custodial interrogation because the custody test is based on the objective standard of what a reasonable person would have understood. We hold substantial competent evidence exists to support these findings. James admitted that hospital staff, not law enforcement, escorted him to the hospital private waiting room and that while there he made a phone call. According to Corporal McLaughlin's testimony, James agreed to cooperate and voluntarily went to the police station. According to Detective Daniels' testimony, James was never restrained in any way and was allowed to keep possession of his personal items. James testified he used his cell phone to make several calls, including one to his attorney. Although his attorney advised him not to talk to law enforcement, he did so anyway. He further admitted he was never shackled or handcuffed, nor told he was under arrest. He also admitted he was told the process was over and then left the interview room. Daniels testified that James was not told about the Missouri warrant until the conclusion of the interview. Though James contradicted some of the officers' testimony, on appeal we do not reweigh the evidence nor judge the credibility of the witnesses. State ex rel. Stovall v. Meneley, 271 Kan. 355, 387, 22 P.3d 124 (2001). We next consider step two in our analysis, a de novo review of the legal question relating to custody. Washington, 275 Kan. at 665-66. The district court concluded it was not a custodial interrogation that would require a Miranda warning. We agree. We conclude as a matter of law based upon the evidence before the district court that the defendant was not under arrest or in custody prior to the time a Miranda warning was given. See 275 Kan. at 666. More specifically, the facts cited above support the legal conclusion that a reasonable person would not have believed James was in custody. Affirmed.",analysis
+698,6353695,1,1,"In the original proceeding addressing C.N.’s complaint for custody, the trial court based its jurisdiction on D.C.Code § 11-1101(4) (2001), providing, in pertinent part, that the Family Court “has exclusive jurisdiction of actions seeking custody of minor children.” The basis for the court’s decision to award custody to the maternal aunt was set out by the trial court in a carefully written twenty-page order dated March 7, 2005, in which the court took into account a number of factors that must be considered in making a child custody decision in the context of a divorce proceeding, which the court appears to have viewed as analogous. See D.C.Code § 16-914(a)(3) (2001). We have previously held, however, that D.C.Code §§ 11-1101(4) and 16-914(a)(3) “contemplate an award of custody only as between parents who are parties to [a] divorce proceeding.” T.S. v. M.C.S., 747 A.2d 159, 163 (D.C.2000). See also W.D. v.C.S.M., 906 A.2d 317, 318 (D.C.2006) (“[T]he trial court exceeded its authority in awarding permanent custody of [a] child to unrelated third parties in [a] domestic relations case.”) 1 Accordingly, when the trial court issued its March 7, 2005, order, there was no statutory provision in effect that gave it jurisdiction to hear C.N.’s complaint for custody. In response to what the Council of the District of Columbia viewed as the “substantial uncertainty” created by W.D. v.C.S.M. about whether “persons other than parents [could] seek custody of a child when in the child’s best interest,” 2 the Council enacted the Safe and Stable Homes for Children and Youth Amendment Act of 2007, which became effective on September 20, 2007: See D.C.Code §§ 16-831.01-.13 (2008 Supp.). This Act established a “rebuttable presumption ... that custody with the parent is in the child’s best interests.” Id. § 16-831.05(a). Nonetheless, it also gave standing to file a custody action to a third party “with whom a child has established a strong emotional tie” and “who has assumed parental responsibilities.” Council Report at 4. 3 It chose the “best interest of the child” standard for determining whether custody to a third party should be awarded. See D.C.Code § 16-831.05, -831.08 (2008 Supp.). The Act did not, however, include language addressing the question of whether this law should be applied retroactively, and we conclude that we need not address that issue either, particularly since we recognize that there is some tension in our case law regarding retroactive application of statutes by an appellate court. 4 At oral argument, both sides agreed that given the lapse of time and the absence of a record informing us of whether the requirements of the D.C.Code § 16-831.02(a)(l)(2008 Supp.) have been met, we cannot know if A.R. should remain in C.N.’s custody. Accordingly, we must remand this matter for a hearing conducted pursuant to the new statute at which the trial court can determine whether the prerequisites of the statute have been satisfied and whether continued custody with C.N. 'remains in A.R.’s best interest.",jurisdiction
+699,1329162,1,2,"The PCR court held that respondent's appellate counsel was ineffective because she had an obligation to raise all meritorious issues on appeal. We disagree. A defendant is entitled to effective assistance of appellate counsel. Southerland v. State, 337 S.C. 610, 615, 524 S.E.2d 833, 836 (1999). Although appellate counsel is required to provide effective assistance of counsel, appellate counsel is not required to raise every nonfrivolous issue that is presented by the record. Thrift v. State, 302 S.C. 535, 539, 397 S.E.2d 523, 526 (1990) citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (emphasis supplied). For judges to second-guess reasonable professional judgments and impose on ... counsel a duty to raise every `colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy.... Jones, 463 U.S. at 754, 103 S.Ct. 3308. In the case at hand, the order granting respondent PCR stated: Appellate Counsel testified during the PCR Hearing that she made a tactical decision to raise only two preserved issues on appeal ... Where counsel articulates a valid reason for employing a certain strategy, such conduct will not be deemed ineffective assistance of counsel. However, this should not be the rule for appellate counsel. Effective Appellate Counsel has an obligation to raise all meritorious issues on appeal. The strategy of choosing one or two issues on direct appeal when several meritorious issues exist deprives the applicant of effective assistance of counsel. (emphasis supplied). We find that the PCR judge decided this case using an incorrect standard. See Thrift, 397 S.E.2d at 526; Jones, 463 U.S. at 754, 103 S.Ct. 3308. Further, the State failed to call this error of law to the PCR judge's attention by way of a Rule 59(e), SCRCP motion. Therefore, due to the unusual circumstances of this case, we reviewed the grounds that respondent claims were meritorious but were not raised by appellate counsel. We find no merit to respondent's claims. The burden of proof is on respondent to show that counsel's performance was deficient as measured by prevailing professional norms, and that respondent was prejudiced by this deficiency. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Southerland, 524 S.E.2d at 836. Because respondent is unable to prove prejudice, the PCR court's decision is reversed.",analysis
+700,874050,1,2,"The determination of the applicable statute of limitation is a question of law over which this Court has free review. Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 388, 403, 111 P.3d 73, 88 (2005) ( Hayden Lake I ) (citing Oats v. Nissan Motor Corp. in the U.S.A., 126 Idaho 162, 164-72, 879 P.2d 1095, 1097-1105 (1994)).",standard of review
+701,1213491,1,1,"Gary Williamson appeals the dismissal of his lawsuit against Lewis Harden for abuse of process and outrage, however the dispute in this appeal originates in a separate action filed by Dr. Williamson against a grocery store. On May 16, 1999, appellant Williamson was shopping at Martin's Food Market in Martinsburg, West Virginia. Appellee Harden was also present at the store. Dr. Williamson allegedly slipped on the remains of a broken jar of pickles. As a result of Dr. Williamson's fall on the slick floor, his grocery cart fell on top of him, injuring him. Dr. Williamson alleged that the accident caused thousands of dollars in damages and resulted in his inability to continue his dental practice. Apparently Mr. Harden was a witness to the injurious pickle-related incident. Dr. Williamson filed suit against the owner of the store and prior to the trial contacted Mr. Harden about his recollection of the accident. Unbeknownst to Mr. Harden, Dr. Williamson recorded their conversation. On October 3, 2001, the defense called Mr. Harden to the stand and he testified in a manner that Dr. Williamson has characterized as false. Counsel for Dr. Williamson used the audiotape of the earlier conversation to impeach Mr. Harden on the stand. Defense counsel objected and moved for a mistrial because the plaintiff had not provided defense counsel with a copy of the tape during discovery. The trial court granted the motion and declared a mistrial. [1] Within weeks of the first trial, Dr. Williamson filed a new action against Mr. Harden on October 15, 2001, claiming Mr. Harden's testimony constituted abuse of process and outrageous conduct. In his complaint, Dr. Williamson claimed that this conduct caused him mental and physical injuries and subjected him to ridicule and scorn; he demanded $1,000,000 in compensatory damages and $5,000,000 in punitive damages. In response, Mr. Harden filed a motion to dismiss pursuant to W. Va. R. Civ. P. Rule 12(b)(6) and requested sanctions against Dr. Williamson. After several additional motions, on December 21, 2001, the lower court dismissed the case and imposed civil sanctions against Dr. Williamson equal to the cost of defending the action, and amounting to slightly less than $1,000. The lower court denied a motion to reconsider on February 8, 2002, and it is from this final order that Dr. Williamson appeals.",facts
+702,4514929,2,1,"To resolve the respondent’s jurisdictional challenges, we must interpret the relevant statutes. See In the Matter of Gray & Gray, 160 N.H. 62, 65 (2010). When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. In the Matter of Yaman & Yaman, 167 N.H. 82, 86 (2014). When a statute’s language is plain and unambiguous, we need not look beyond it for further indications of legislative intent. Gray, 160 N.H. at 65. Courts can neither ignore the plain language of the legislation nor add words that the lawmakers did not see fit to include. Id. We interpret statutes not in isolation, but in the context of the overall statutory scheme. Id. We first address the respondent’s arguments regarding the court’s jurisdiction over the child custody proceeding under the UCCJEA. Under RSA 458-A:12, I, “a court of this state has jurisdiction to make an initial child custody determination” if “[t]his state is the home state of the child on the date of the commencement of the proceeding.” A child’s “home state” is “the state in which a child lived with a parent . . . for at least 6 consecutive months immediately before the commencement of a child-custody proceeding.” RSA 458-A:1, VII. The child custody proceeding here commenced in May 2015 when the petitioner filed her petition for legal separation. See RSA 458-A:1, IV (defining “child-custody proceeding” as “a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue,” including a proceeding for divorce or separation), RSA 458-A:1, V (defining “commencement” as the “filing of the first pleading in a proceeding”). At that time, the petitioner and the child had been living in New Hampshire for over six months. Therefore, New Hampshire was the child’s home state on the date the petitioner commenced the proceeding. See RSA 458-A:1, VII. Nevertheless, the respondent contends that the trial court lacked jurisdiction because other child custody proceedings had commenced in Massachusetts at the time the petitioner filed the petition for legal separation in New Hampshire. See RSA 458-A:17, I. Specifically, he contends that, at the time the petitioner filed her petition for legal separation: (1) the Massachusetts restraining order against the respondent was still active, see RSA 458-A:1, IV (defining “child-custody proceeding” to include a proceeding for “protection from domestic violence”); and (2) the respondent’s Massachusetts action for custody and visitation was pending. The petitioner’s initial petition for legal separation notified the trial court 5 of a Massachusetts case relating to domestic violence but provided no further information describing the nature of the case. The petitioner’s subsequent divorce petition provided additional details about the Massachusetts case — specifically, that the case involved a restraining order issued in July 2014, which awarded custody of the child to the petitioner. The divorce petition also notes, however, that the restraining order expired one year after it was issued, which the respondent does not dispute. Thus, the Massachusetts child custody determination under the restraining order had terminated prior to any child custody determination made by the trial court here, and, therefore, did not deprive the trial court of jurisdiction to make such a determination under the UCCJEA. See RSA 458-A:17, I (permitting a court of this state to exercise jurisdiction where the proceeding in another state “has been terminated or is stayed by the court of the other state”). The petitioner’s divorce petition also notified the trial court of the pending Massachusetts action for custody and visitation filed by the respondent in March 2015. She explained that a motion to dismiss the case had “been drafted and will be marked up for Hearing in September.” Although the Massachusetts court dismissed the action on October 21, 2015, the dismissal occurred after the trial court here made its initial child custody determination in August. To avoid jurisdictional conflicts in child custody proceedings, RSA 458- A:17, II requires courts of this state to “examine the court documents and other information supplied by the parties.” Then, “[i]f the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter,” the trial court “shall stay its proceedings and communicate with the court of the other state.” Id. If the court of the other state “does not determine that the court of this state is a more appropriate forum,” RSA 458-A:17, II requires a New Hampshire court to dismiss the proceeding. Because the petitioner’s divorce pleading alerted the trial court to a simultaneous child custody proceeding in Massachusetts, which constitutes a “state having jurisdiction substantially in accordance” with New Hampshire’s UCCJEA, RSA 458-A:17, II; compare RSA 458-A:12 with Mass. Gen. Laws ch. 209B, § 2 (2016), the trial court was required to stay the New Hampshire proceeding and communicate with the Massachusetts court. See RSA 458- A:17, II. Nevertheless, the Massachusetts proceeding was dismissed in October 2015, during the pendency of the divorce proceeding in New Hampshire and prior to the court’s approval of the final divorce decree in May 2016. Thus, at the time the trial court rendered its child custody determination as part of the final divorce decree, no simultaneous child custody proceeding was pending in another state. Moreover, the petitioner and her child have continued to reside in New Hampshire since they moved here in July 2014. See RSA 458-A:12, I. Accordingly, while we urge New Hampshire courts to follow the directives set 6 forth in RSA 458-A:17 when alerted to a child custody proceeding in another state, we conclude that the trial court had jurisdiction to render its child custody determination following the dismissal of the Massachusetts action. The respondent, however, further argues that New Hampshire does not have jurisdiction over the child custody proceeding because the petitioner sought to conceal their child from him by moving to New Hampshire after obtaining the restraining order in Massachusetts. To the extent the respondent argues that RSA 458-A:19, I, required the trial court to decline jurisdiction due to the petitioner’s “unjustifiable conduct,” we disagree. RSA 458-A:19, I, requires a court to “decline to exercise its jurisdiction” in a child custody proceeding where “a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct.” However, the statute permits the court to exercise jurisdiction where “[t]he parents and all persons acting as parents have acquiesced in the exercise of jurisdiction.” RSA 458-A:19, I(a). We acknowledge that the petitioner’s filing of the petition for separation in New Hampshire shortly after the respondent filed his Massachusetts complaint for child custody and visitation undermines one of the purposes of the UCCJEA: to “‘[d]iscourage the use of the interstate system for continuing controversies over child custody.’” Yaman, 167 N.H. at 87 (quoting Unif. Child Custody Jurisdiction and Enforcement Act § 101, cmt., 9-1A U.L.A. 657 (1999)). However, even assuming that the petitioner’s actions were “unjustifiable,” both parents acquiesced to the trial court’s exercise of jurisdiction. See RSA 458-A:19, I. The parenting plan was approved by the court in May 2016 and, based upon the record before us, the respondent participated in the litigation before the parenting plan was issued without ever challenging the court’s jurisdiction. Furthermore, nothing in the record reflects that the respondent challenged the court’s jurisdiction prior to this appeal. Accordingly, the trial court was not required to decline jurisdiction under RSA 458-A:19, I. The respondent next argues that the trial court lacked jurisdiction over the parties to the divorce matter, under RSA 458:5, and the cause of the divorce, under RSA 458:6. Pursuant to RSA 458:5, a court’s jurisdiction over parties to a divorce case exists only where: (1) “both parties were domiciled in the state when the action was commenced”; (2) the plaintiff was domiciled in the state and “the defendant was personally served with process within the state”; or (3) “the plaintiff was domiciled in the state for one year next preceding the time when the action was commenced.” Pursuant to RSA 458:6, “[j]urisdiction over the cause for divorce exists when it wholly arose or accrued while the plaintiff was domiciled in the state, and not otherwise.” As the petitioner notes, the respondent raises these arguments for the first time on appeal. The petitioner argues that, because the respondent appeared in the trial court proceedings without raising any objection to the 7 trial court’s jurisdiction, he agreed to the court’s exercise of jurisdiction in this case and should not be permitted to raise these arguments for the first time on appeal. However, “[t]he court’s authority in matters of marriage and divorce is strictly statutory.” Daine v. Daine, 157 N.H. 426, 427 (2008) (quotation omitted). Therefore, “the court has only such power in that field as is granted by statute.” Id. Here, RSA 458:4 (2018) expressly limits “[t]he jurisdiction of the court to grant divorce . . . to cases where there is jurisdiction over the parties and of the alleged cause as defined in RSA 458:5 and 458:6.” Accordingly, the court’s jurisdiction to grant a divorce is limited to the circumstances described in RSA 458:5 and :6. Therefore, the respondent’s participation in the proceedings below without objection cannot confer jurisdiction if the statutory requirements are not met. See Porter v. Porter, 112 N.H. 403, 405 (1972) (holding that the “domicile requirements” under RSA 458:5 “cannot be conferred by consent”); see also Daine, 157 N.H. at 428 (“Consent cannot confer jurisdiction where none exists.” (quotation omitted)). Nevertheless, we conclude that, based upon the record before us, the trial court had jurisdiction over the parties and the cause of the divorce. As to jurisdiction over the parties to the divorce, the record demonstrates that the petitioner has been domiciled in New Hampshire since July 2014, over one year before she commenced the divorce action in August 2015. Therefore, the domicile requirement under RSA 458:5 was met. See RSA 458:5, III. As to the court’s jurisdiction over the cause of the divorce, the respondent identifies a series of incidents that occurred in Massachusetts in or around July 2014 as the “origin and point of separation” — an alleged inquiry by the petitioner to a Massachusetts police department regarding child custody, the Massachusetts restraining order, and a neglect investigation with the Massachusetts Department of Family and Children. However, he makes no representation about the cause for divorce or where it occurred. According to the trial court’s final divorce decree and the parties’ partial permanent stipulation, approved by the trial court in May 2016, the cause of the parties’ divorce was “[i]rreconcilable differences which have caused the irremediable breakdown of the marriage.” We have held that “causes involving a specific event such as a conviction of a crime [or] adultery” which have occurred while the petitioner is domiciled elsewhere may not meet the jurisdictional requirement under RSA 458:6. Woodruff v. Woodruff, 114 N.H. 365, 367 (1974). However, “other causes that are of a continuing nature . . . which began while [the petitioner] was domiciled elsewhere” may meet the requirement “if continued for the required time after the [petitioner] becomes domiciled here.” Id. Irreconcilable differences may be one such cause, because “[i]f the differences are not reconciled they constitute a continuing condition in the marriage relationship which may persist after one of the parties becomes domiciled here.” Id.; see RSA 458:7-a (2018). 8 In this case, the petitioner left the respondent in July 2014 and lived in New Hampshire for over one year before she commenced the divorce action. Accordingly, the differences between the parties were not reconciled for at least the period between July 2014 and August 2015. Thus, cause of the divorce continued after the petitioner became domiciled in New Hampshire. See Woodruff, 114 N.H. at 367 (explaining that RSA 458:7-a “does not require that the irreconcilable differences accrue over any specified period of time before they may form the basis for a cause for divorce”); RSA 458:7-a. Although “[n]o divorce can be decreed under this cause . . . unless the irreconcilable differences have caused an irremediable breakdown of the marriage,” Woodruff, 114 N.H. at 367 (citing RSA 458:7-a (Supp. 1973)), we have held that, as a matter of law, the breakdown of the marriage cannot occur prior to the court’s judicial determination that “the possibilities of reconciliation have been explored and have failed.” Id. at 368; see RSA 458:7-a, :7-b (2018). Therefore, the breakdown of the marriage could not have occurred until after the petitioner filed her divorce petition, because that was the earliest that the court could find the marriage to be beyond reconciliation. Woodruff, 114 N.H. at 368. Accordingly, we conclude that the trial court had jurisdiction over the cause for divorce under RSA 458:6. B. Order on Contempt, Restraint, and Parental Interference Motions
+Next, the respondent argues that the trial court unsustainably exercised its discretion by denying his motion to hold the petitioner in contempt for failure to comply with paragraph H in the parenting plan, which requires the parties to communicate through email and, if necessary, in person, to resolve parenting disputes within specific time limits. Contempt power is discretionary and the proper inquiry is not whether we would have found the petitioner in contempt, but whether the trial court unsustainably exercised its discretion in refusing to do so. In the Matter of Giacomini & Giacomini, 150 N.H. 498, 500 (2004). The respondent’s contempt motion described several disagreements between the parties and alleged that the petitioner failed to “honor[] the 14-day period for email resolution [and] the 14-day period for a meeting” in paragraph H to resolve those disputes. Based upon the testimony of the parties at the contempt hearing and a review of the parties’ emails and pleadings, the trial court found that “it is clear that Petitioner attempted to answer Respondent’s inquiries” and was “not in contempt of any of the parenting time provisions.” The trial court further found that the petitioner “did not act willfully or with malice by not agreeing to meet” with the respondent, and “was under the reasonable belief that there were no issues that needed resolution.” In rendering this decision, the trial court did not consider some of the disputes 9 asserted by the respondent because they predated or fell outside of the scope of the parenting plan. A review of the record provides support for these findings. We conclude that the trial court was not compelled to find the petitioner in contempt and did not unsustainably exercise its discretion by refusing to do so. See id. at 501.
+The respondent next argues that the trial court unsustainably exercised its discretion by denying his motion to restrain and his motion regarding parental interference. We review a trial court’s rulings on the denial of these motions under an unsustainable exercise of discretion standard. See In the Matter of Peirano & Larsen, 155 N.H. 738, 752 (2007) (reviewing the trial court’s continuance of a restraining order for an unsustainable exercise of discretion). In his motion to restrain, the respondent alleged that the petitioner provided “malicious and untruthful information about [him]” to law enforcement, DCSS, and their child’s doctor, including a “very recent[]” false accusation to DCSS that he failed to pay child support in May 2016. His motion regarding parental interference alleges that the petitioner “continues to interfere with [his] rights as a father” by telling the child’s doctor that the respondent was trying to kidnap their child. In her objections to these motions, the petitioner denied the allegations and stated that the respondent was attempting to “revisit issues that have long-since been concluded” and “have no relevance on issues between the parties today.” At the hearing, the respondent discussed a timeline of the allegations, contending that the events set forth in his motions occurred between July 2014 and November 2016, when the petitioner made the complaint to DCSS. The trial court denied both motions upon finding that “[a]ll the alleged incidents occurred two years prior to the parties’ agreed Parenting Plan.” The respondent points to the allegation relating to DCSS to argue that this finding was erroneous. However, the parties’ pleadings and the respondent’s proffers at the contempt hearing demonstrate that all allegations, including the allegation relating to DCSS, occurred at least 10 months before the respondent filed his motions. We conclude that these events are too distant in time to support motions of this nature. Accordingly, we uphold the trial court’s denial of these motions. C. Amended Uniform Support Order The respondent argues that the trial court erred in several ways in its 10 calculation of the amended uniform support order issued in February 2018. The trial court’s amended uniform support order is governed by New Hampshire’s child support guidelines, which are codified in RSA chapter 458-C (2018 & Supp. 2019) and establish a uniform system to determine the amount of child support awards. In the Matter of Silva & Silva, 171 N.H. 1, 4 (2018); see RSA 458-C:4, I (2018) (applying the guidelines to “all child support cases,” including orders modifying an existing support order). The purpose of RSA chapter 458-C is not only to ensure uniformity in determining the amount of child support, but also to ensure that both the custodial and non-custodial parents share in the support responsibility for their children, according to the relative percentage of each parent’s income. Silva, 171 N.H. at 4. Trial courts have broad discretion in reviewing and modifying child support orders. In the Matter of Hampers & Hampers, 166 N.H. 422, 442 (2014). We will not disturb the trial court’s rulings regarding child support absent an unsustainable exercise of discretion or an error of law. Silva, 171 N.H. at 4. The respondent first argues that the trial court erred because it based the amended support order of $274 per week on income figures proposed by the petitioner in her child support guidelines worksheet. See RSA 458-C:3-a (2018). He argues that these figures were inaccurate because: (1) the petitioner’s calculation of the respondent’s gross monthly income was not supported by the paystubs he provided; (2) the petitioner’s monthly income provided in her child support guidelines worksheet failed to include her gross monthly income from her second, part-time employment; and (3) the petitioner failed to provide in her financial affidavit documentation of her income required by Family Division Rule 1.25-A(B)(1)(c). Child support should be determined on the basis of present income. Hampers, 166 N.H. at 442. When calculating a parent’s child support obligation, the court must first determine each parent’s present income. In the Matter of Feddersen & Cannon, 149 N.H. 194, 196 (2003). It is up to the trial court to decide which income figures should be used based upon the facts presented at the hearing. Id. As for the respondent’s monthly gross income, he contends that the trial court accepted the petitioner’s calculation of his income, which was based upon a weekly income of $1,800, despite the inconsistent income shown on his paystubs and his representation that he does not receive steady pay due to the contractual nature of his employment. The respondent provided four weekly paystubs with his financial affidavit, with one paystub showing earnings of $1,440 for 32 hours of work, and three subsequent paystubs showing weekly earnings of $1,800 for 40 hours per week. Nevertheless, the respondent listed $7,200 as his gross monthly income in his financial affidavit and child support guidelines worksheet, and informed the court at the hearing that he reached 11 this figure by multiplying $1,800 by four weeks. Thus, the respondent himself represented that his income is $1,800 per week. Although the trial court determined that the petitioner provided the accurate calculation of his monthly gross income — she multiplied the weekly income of $1,800 by 4.33 weeks in a month, rather than four weeks — the respondent does not challenge this determination. Accordingly, the trial court did not commit an unsustainable exercise of discretion in accepting the petitioner’s calculation of the respondent’s monthly gross income based upon a weekly income of $1,800. However, as for the petitioner’s monthly income, we agree with the respondent that the petitioner’s child support guidelines worksheet, upon which the trial court relied in calculating the respondent’s amended child support obligation, omitted income from one of her jobs. The petitioner disclosed monthly wages from two jobs in her financial affidavit and provided a paystub reflecting this additional employment. However, her child support guidelines worksheet included her monthly income from only one job. Accordingly, the trial court committed an unsustainable exercise of discretion when it based its calculation of the support order on the gross monthly income set forth in the petitioner’s guidelines worksheet. Therefore, we vacate the support order and remand to the trial court to recalculate the respondent’s child support obligation. The respondent further argues that the petitioner failed to provide the requisite documentation under Rule 1.25-A(B)(1)(c) to support her asserted income set forth in her financial affidavit and child support guidelines worksheet. Rule 1.25-A(B)(1)(c) requires the parties, as part of the mandatory initial self-disclosure, to provide the “four (4) most recent pay stubs (or equivalent documentation) from each current employer.” Fam. Div. R. 1.25- A(B)(1)(c). Rule 2.16, which governs financial affidavits, further requires each party to “file with the court and with the other party a . . . financial affidavit which contains the information requested on the family division financial affidavit.” Fam. Div. R. 2.16. The petitioner’s notarized financial affidavit certifies that she has “complied with Rule 1.25-A regarding mandatory disclosure.” The record before us, however, indicates that she provided only one pay stub for each job. While Rule 1.2 permits the court, “[a]s good cause appears and as justice may require,” to “waive the application of any rule, except where prohibited by law,” Fam. Div. R. 1.2, the record does not demonstrate that the trial court found good cause to waive the paystub requirement under Rule 1.25-A(B)(1)(c). Accordingly, we remand this issue to the trial court to require the petitioner to either submit additional pay stubs or show good cause as to why this rule should be waived. The respondent next contends that the trial court committed an unsustainable exercise of discretion when it failed to consider his request to 12 deviate from the child support guidelines. He argues that the court failed to consider his financial obligations that he raised during the hearing — in particular, the amount of rent he pays — in determining his child support obligation. There is a rebuttable presumption that a child support award calculated under the guidelines is the correct amount of child support. See Silva, 171 N.H. at 4; RSA 458-C:4, II (2018). The presumption may be overcome, and the trial court may deviate from the guidelines, when a party shows by a preponderance of the evidence that the application of the guidelines would be “unjust or inappropriate,” RSA 458-C:4, II, because of “[s]pecial circumstances,” RSA 458-C:5, I; Silva, 171 N.H. at 4. RSA 458-C:5, I, includes a list of special circumstances that, if raised by a party or the court, the court must consider in making an adjustment that deviates from the child support guidelines. Silva, 171 N.H. at 4. Although this list is non-exhaustive, we have interpreted “special circumstances” as including only circumstances that are “economic in nature and relate to the impact of a parent’s financial condition upon his or her ability to meet a child’s needs.” Id. (quotation omitted). Additionally, the trial court must consider any special circumstances “in light of the best interests of the child.” RSA 458-C:5, I. Here, the record demonstrates that the trial court considered, and rejected, the respondent’s basis for his requested adjustment in determining his child support obligation. The trial court explained at the hearing that expenses such as rent, bills, and loan repayments are common expenses that are not “extraordinary, unusual expenses” to the respondent, and did not provide a basis to “treat [the respondent] differently than . . . any other parent.” In reaching this determination, the trial court did not unsustainably exercise its discretion. Although living expenses are “economic in nature,” the respondent has not demonstrated that they “relate to the impact of [his] financial condition upon his . . . ability to meet [his] child’s needs.” Silva, 171 N.H. at 4. The respondent did not argue or otherwise offer an explanation to the trial court that his expenses prohibit him from meeting the child’s needs, or that he could not make necessary changes to reduce his expenses. Further, there is nothing in the record to indicate that the respondent’s expenses affect his financial situation such that the amount suggested by the guidelines is confiscatory. See RSA 458-C:5, I(j). Finally, to the extent that the respondent argues that the trial court was required to compare his expenses with the petitioner’s when calculating his child support obligation, the respondent identifies no provision in RSA chapter 458-C that required the trial court to do so. See RSA 458-C:3 (2018), :5. Next, the respondent argues that the trial court erred when it ordered him to pay an arrearage. The respondent asserts that, because he remained in 13 compliance with the court’s uniform support order in effect at the time, it would be “unfair to hold [him] responsible” for paying an amount that had not yet been ordered by the court. RSA 458-C:7 (2018) allows a party to apply “at any time for a modification” of a child support order “based on substantial change of circumstances.” RSA 458-C:7, I(a). The statute also allows the trial court to modify a child support obligation from “the date that notice of the petition for modification has been given to the [opposing party].” RSA 458-C:7, II. Thus, the trial court had the discretion to apply its child support modification retroactively. Given that the respondent himself first notified the trial court and the petitioner of the change in circumstances that led to the trial court’s child support modification — his new employment — it was neither unfair, nor an unsustainable exercise of discretion, for the trial court to order that modification to apply retroactively. The respondent further contends that the trial court erred in its calculation of the arrearage amount. Specifically, he argues that the trial court failed to deduct the $50 monthly child support payments that, according to the respondent, he paid during the accrual period — September 18, 2017, to February 12, 2018. The record demonstrates that the trial court deducted from the total arrearage the amount of attorney’s fees the petitioner owed to the respondent from prior litigation. The record is silent, however, as to whether the trial court considered any child support payments the respondent made during the accrual period. Although the respondent raised this issue to the trial court in a motion for reconsideration, the trial court did not modify or clarify its calculation. Further, we note that, although the petitioner does not address this argument on appeal, she acknowledged in her objection to his motion for reconsideration that the respondent “continued to pay $50.00 per month as child support” after he obtained full employment. Because the record does not demonstrate whether the trial court considered any child support payments that the respondent paid during the accrual period in calculating the arrearage amount, we vacate the judgment and remand this issue to the trial court. Finally, the respondent argues that the trial court erred by ordering that he pay child support directly to DCSS by immediate income assignment. He contends that, because his previous payments were timely, the court should have found good cause not to require immediate income assignment. RSA 458- B:2, I(c) (2018) provides that immediate income assignment “shall be suspended by the court” when the court “finds that there is good cause not to require immediate income assignment.” However, a finding of “good cause” to suspend immediate income assignment must be based on “[p]roof of the obligor’s timely payment” of previously ordered support and a “written determination and explanation . . . as to why implementing immediate income assignment would not be in the best interests of the child.” RSA 458-B:2, I(c)(1)-(2). There is nothing in the record demonstrating that the trial court 14 made such a determination. To the extent that the respondent seeks to challenge the trial court’s requirement that he pay child support directly to DCSS, he fails to develop this argument for our review. See Halifax-American Energy Co. v. Provider Power, LLC, 170 N.H. 569, 574 (2018) (“In the realm of appellate review, a mere laundry list of complaints regarding adverse rulings by the trial court, without developed legal argument, is insufficient to warrant judicial review.” (quotation and brackets omitted)). Accordingly, we conclude that the trial court did not unsustainably exercise its discretion in ordering the respondent to pay his child support obligation to DCSS by an immediate income assignment. D. Order Modifying Parenting Plan and Permanent Stipulation The respondent next makes several arguments challenging the trial court’s order on his motion to modify the parenting plan and permanent stipulation, in which the trial court: (1) denied his request to remove, on religious grounds, the requirement to obtain life insurance for the benefit of the child; (2) vacated, sua sponte, paragraph G of the parenting plan, thereby implicitly denying his request to hold the petitioner “accountable” for refusing to meet with him pursuant to that paragraph; (3) denied his requests to modify the parenting plan to give him more parenting time and two consecutive, rather than non-consecutive, weeks of vacation with the child; and (4) awarded attorney’s fees to the petitioner. We address each argument in turn. The respondent first contends that the trial court committed reversible error because it attributed the respondent’s requested prayers of relief to the petitioner in its order. However, there is nothing in the record to suggest that this discrepancy was prejudicial to the respondent. See Giles v. Giles, 136 N.H. 540, 545 (1992) (“For an error to require reversal on appeal, it must [have been] prejudicial to the party claiming it.” (quotation omitted)). Although the trial court’s order refers to “the Petitioner” when discussing the respondent’s individual prayers for relief, the trial court was clearly aware that the respondent made the requests. The trial court held a hearing on the motion in which it heard argument directly from the respondent. Furthermore, the trial court’s order states that it would “address the Respondent’s requests in the order in which they appear . . . in his motion” and later refers to “the Respondent’s Motion” as the basis for the award of attorney’s fees to the petitioner. Accordingly, this misattribution does not constitute reversible error. See id. The respondent next challenges the trial court’s ruling on his request to remove the life insurance requirement. The respondent, however, does not argue that the trial court erred in denying the request. Instead, he argues that the trial court mischaracterized the intent and effect of the life insurance requirement when it noted in its order that the court, in ordering the requirement, had “imposed an obligation on both parties to secure their child 15 support obligation with a life insurance policy.” Not only did the respondent fail to raise this argument to the trial court, see Halifax, 170 N.H. at 574, he provides no basis to support his assertion that the trial court’s characterization of the requirement was incorrect or that it prejudiced him in any way, see Giles, 136 N.H. at 545. Accordingly, we uphold the trial court’s denial of this request. The respondent next argues that the trial court did not have the statutory authority necessary to vacate, sua sponte, paragraph G in the parenting plan. See RSA 461-A:11 (2018). Generally, we will not overturn a trial court’s modification of an order regarding parenting rights and responsibilities unless it clearly appears that the trial court unsustainably exercised its discretion. In the Matter of Kelly & Fernandes-Prabhu, 170 N.H. 42, 47 (2017). To the extent that resolution of the modification issue requires us to engage in statutory interpretation, our review is de novo. Id. Paragraph G of the parenting plan required the parties to meet “as often as necessary” to review and adjust the parenting plan, and specifically required them to meet in March 2017 to revise the plan before the child began school. The respondent alleged that he and the petitioner met in March 2017 to discuss changes to the plan before the child began school, and agreed to meet again in January 2018 for that purpose. However, the petitioner thereafter refused to meet and rejected his proposed changes to the parenting plan. The petitioner did not dispute these facts, but contended that meetings with the respondent had not produced any agreements between the parties and made her feel uncomfortable. She further noted that the respondent did not agree to her proposals and would only agree to his own. The trial court, in vacating paragraph G, reasoned that it was “not only unnecessary . . . , but also unlikely to produce any meaningful agreements of the parties.” The trial court noted that it was “more a source of conflict than a means by which conflict can be avoided” and “not statutorily based.” RSA 461-A:11, I, grants a court authority to modify a permanent order concerning parental rights and responsibilities if it finds one of the predicate circumstances specified in the statute. See Kelly, 170 N.H. at 47. The trial court here did not specifically identify which of the predicate circumstances authorized it to modify the parenting plan. The respondent argues that, because neither party requested this modification, RSA 461-A:11, II provides the only authority by which the court could have vacated this provision. That provision requires that the modification be “based on the best interest of the child.” RSA 461-A:11, II (“Except as provided in RSA 461-A:11, I(b)-(i) for parenting schedules and RSA 461-A:12 for a request to relocate the residence of a child, the court may issue an order modifying any section of a permanent parenting plan based on the best interest of the child.”). He argues that the court’s basis for vacating paragraph G does not fall within this provision. 16 The petitioner argues that this modification was justified under RSA 461- A:11, I(f). Under RSA 461-A:11, I(f), a court may issue an order modifying a permanent order concerning parental rights and responsibilities where “[t]he modification makes either a minimal change or no change in the allocation of parenting time between the parents, and the court determines that such change would be in the best interests of the child.” The petitioner argues that the trial court’s modification falls within this provision because the modification had no impact on the allocation of parenting time and was in the best interests of the child. We agree with the petitioner that the trial court’s modification did not affect the allocation of parenting time under the parenting plan. However, under either statutory provision identified by the parties, the trial court was required to find that removal of paragraph G was in the best interests of the child. See RSA 461-A:11, I(f), II. Although the trial court did not make an express finding in its order as to whether the modification was in the child’s best interests, we construe the trial court’s reasoning for vacating paragraph G as an implied finding that this modification was in the best interests of the child, and find that it is supported by the record. See In the Matter of Kosek & Kosek, 151 N.H. 722, 724-25 (2005) (assuming the trial court found, and concluding that the record supports, that its modification to a visitation schedule was not contrary to the best interests of the children). RSA 461-A:6, I (Supp. 2019) codifies the “best interests of the child” criteria, setting forth a list of non-exhaustive factors the court must consider, including “[t]he ability and disposition of each parent to foster a positive relationship and frequent and continuing . . . contact with the other parent, including whether contact is likely to result in harm to the child or to a parent.” RSA 461-A:6, I(e); see In the Matter of Miller & Todd, 161 N.H. 630, 640-41 (2011). Here, the trial court heard testimony from both parties that they could not reach an agreement when they met regarding changes to the parenting plan. Furthermore, their representations provide an inference that the meetings failed to foster negotiations between the parties to reach an agreement and instead caused at least one party to feel uncomfortable. These facts, viewed in light of the extensive litigation that has resulted from disagreements between the parties, support a determination that the parties lack the ability to foster a positive relationship with each other, and that requiring continued contact between the parties would not be in the best interests of the child. See RSA 461-A:6, I(e). Accordingly, the trial court’s decision to vacate paragraph G of the parenting plan was not an unsustainable exercise of discretion. The respondent next contends that the trial court erred in denying his request to modify the parenting plan to allow him to have additional parenting time and two consecutive weeks of vacation with the child. He argues, for the 17 first time on appeal, that his request falls within RSA 461-A:11, I(h), which allows the court to modify an order concerning parental rights and responsibilities where “one parent’s allocation . . . of parenting time was based in whole or in part on his or her work schedule and there has been a substantial change in that work schedule such that the existing order is not in the child’s best interest.” However, as the petitioner notes, the respondent failed to cite a statutory basis or provide evidence to the trial court to support this significant modification. Although the respondent asserted in his motion to reconsider that he was a full-time student at the time the parenting plan was executed, nothing in the record demonstrates that the allocation of parenting time in the plan was based, in whole or in part, on his status as a student, or that the existing parenting time is not in the child’s best interest. See RSA 461-A:11, I(h). Thus, the trial court’s decision to deny his request was not an unsustainable exercise of discretion. Next, the respondent argues that the trial court unsustainably exercised its discretion by awarding the petitioner attorney’s fees. We will not overturn the trial court’s decision concerning attorney’s fees absent an unsustainable exercise of discretion. Fat Bullies Farm, LLC v. Devenport, 170 N.H. 17, 30 (2017). To warrant reversal, the discretion must have been exercised for reasons clearly untenable or to an extent clearly unreasonable to the prejudice of the objecting party. Id. In evaluating the trial court’s ruling on this issue, we acknowledge the deference given a trial court’s decision regarding attorney’s fees. Id. If there is some support in the record for the trial court’s determination, we will uphold it. Id. While the general rule in New Hampshire is that parties pay their own attorney’s fees, we have recognized various exceptions. Glick v. Naess, 143 N.H. 172, 175 (1998). A prevailing party may be awarded attorney’s fees when that recovery is authorized by statute, an agreement between the parties, or an established judicial exception to the general rule that precludes recovery of such fees. Jesurum v. WBTSCC Ltd. P’ship, 169 N.H. 469, 482 (2016). One judicially-created exception exists when a party must litigate against an opponent whose position is patently unreasonable. Glick, 143 N.H. at 175. A claim is patently unreasonable when it is commenced, prolonged, required, or defended without any reasonable basis in the facts provable by evidence, or any reasonable claim in the law as it is, or as it might arguably be held to be. Id.; see Kukene v. Genualdo, 145 N.H. 1, 3 (2000). A party’s unreasonableness is treated on an objective basis as a variety of bad faith, and made just as amenable to redress through an award of attorney’s fees as would be the commencement of litigation for the sole and specific purpose of causing injury to an opponent. Glick, 143 N.H. at 175. When attorney’s fees are awarded against a private party who has acted in bad faith, the purpose is to do justice and vindicate rights, as well as to discourage frivolous lawsuits. See Fat Bullies Farm, 170 N.H. at 30. 18 The trial court awarded attorney’s fees based upon a finding that the respondent’s motion to modify the parenting plan and permanent stipulation was “frivolous . . . and without any established legal basis.” The respondent argues that there was a legal basis for his motion — paragraph G of the parenting plan and the parenting plan generally. He argues that he “approached the court for assistance regarding the enforcement” of provisions in the parenting plan “put in place for dealing with parenting disagreements,” which the petitioner “appear[ed] to be flouting.” As an initial matter, it was not unreasonable for the trial court to conclude that certain requests in his motion lacked a legal basis. As discussed above, the respondent provided no legal or factual basis to support his requests to modify the parenting time provisions of the parenting plan. Moreover, although his motion asserted that the life insurance provision of the permanent stipulation violated his religious beliefs, he made no such representation to the trial court at the hearing and ignored the trial court when it specifically asked him whether he had recently become a member of a particular faith. Nonetheless, while it was reasonable for the trial court to deny the respondent’s request to enforce paragraph G of the parenting plan, this request did not lack a legal basis. At the time the respondent filed his motion, paragraph G was an enforceable provision of the parenting plan. Although the parties met in March 2017, they failed to reach an agreement, and the petitioner did not dispute that she thereafter refused to meet with the respondent. While it may have been reasonable for the petitioner to make this decision, given the parties’ inability to reach an agreement, at the time the respondent filed his motion paragraph G remained an enforceable provision that required the parties to meet to review and adjust the parenting plan “as often as necessary for the benefit of the child.” The parties’ pleadings — including the petitioner’s motion to approve daycare and kindergarten enrollment — demonstrate that an ongoing disagreement existed between the parties with respect to specific provisions of the parenting plan. Therefore, the respondent’s request to enforce paragraph G, in an effort to resolve the parties’ dispute, had a legal foundation and does not provide a basis to support the award of attorney’s fees. Nevertheless, because the respondent’s motion also set forth requests that lacked a legal basis, we vacate and remand the trial court’s award to determine, in light of our decision, whether to award attorney’s fees pertaining to those particular claims. E. Order Approving Daycare and Kindergarten Enrollment Finally, the respondent argues that the trial court erred when it considered and approved the petitioner’s motion to enroll their child in private daycare and kindergarten. Specifically, the respondent contends that the trial court committed an unsustainable exercise of discretion when it ruled on this 19 motion because paragraph G requires both parties to work together to make changes to the parenting plan before the child begins school. In light of the trial court’s proper decision to vacate paragraph G, the parties’ inability to reach an agreement, and the parenting plan’s provisions providing that the child primarily reside with the petitioner and attend school where the parent with primary residential responsibility resides, we conclude that the trial court’s decision to grant the petitioner’s motion was not an unsustainable exercise of discretion.",jurisdiction
+703,901404,1,2,"[¶ 19.] Statutory interpretation and application are questions of law. Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463 (citing Steinberg v. State Dept. of Military Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599). Conclusions of law are reviewed by this Court under the de novo standard, giving no deference to the circuit court's conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771). [¶ 20.] Statutory construction is employed to discover the true intent of the legislature in enacting laws, which is ascertained primarily from the language employed in the statute. State v. Myrl & Roy's Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653 (citing Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). We give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject. State v. I-90 Truck Haven Service, Inc., 2003 SD 51, ¶ 3, 662 N.W.2d 288, 290 (citing Martinmaas, 2000 SD 85, ¶ 49, 612 N.W.2d at 611).",standard of review
+704,1585141,1,2,"Indvik presents this court with three issues on appeal: 1. Whether or not the psychological evaluations conducted at the State Hospital were sufficient examinations to determine that Indvik did not suffer from a mental disease or defect, pursuant to § 12.1-04-03, N.D. C.C. [1] 2. Whether or not there was probable cause for the arrest of Indvik on May 26, 1984. 3. Whether or not the trial court erred in admitting into evidence the firearm taken from Indvik following his arrest. [2]
+The first issue is whether or not the psychological evaluations conducted at the State Hospital were sufficient examinations to determine that Indvik did not suffer from a mental disease or defect which relieved him of responsibility for his criminal conduct pursuant to § 12.1-04-03, N.D. C.C. Indvik asserts on appeal that the examinations he received were not sufficient because they were not independent psychological evaluations. In June 1984 Indvik had an initial and thorough examination, as requested by the county court, to determine his competency to stand trial. This evaluation was conducted by A.A. Corral, M.D., a licensed psychiatrist. Dr. Corral found Indvik competent. Indvik then filed a notice of his intent to rely on the defense of mental disease or defect pursuant to § 12.1-04-03, N.D.C.C. He also made a motion for a psychological evaluation to be conducted by a psychiatrist practicing in Fargo, North Dakota. The district court approved Indvik's request for the evaluation, allocated $1,000 to cover the cost, and the initial appointment was scheduled for December 13, 1984. Indvik did not show up for this appointment. The district court then ordered a psychological evaluation be conducted by the State Hospital to determine Indvik's competency to stand trial and to determine whether Indvik was responsible for his alleged criminal conduct. Dr. R. Naranja, a board-certified psychiatrist, undertook the supervision of the second evaluation, and weighed the observations of Dr. Joseph B. Sutter, a staff psychologist, as well as the observations of an around-the-clock nursing staff. He concluded that Indvik was not suffering from a specific mental disease or defect and that Indvik had substantial capacity to appreciate the criminality of his conduct. We turn now to the claim that these examinations were not sufficient, as they were not independent. For several reasons we reject this argument. The record does not support this argument. Indvik argues that, since the State Hospital is a state agency, there may exist the potential for conflict when dealing with alleged criminals. The record does not reveal any such conflicts. Rather, it includes a series of examination procedures and reports from two licensed psychiatrists. There are no inconsistencies nor is there any indication of a less than professional and conflict-free determination of Indvik's mental competency. Indvik does not offer any specific example of actual or potential conflict which could arise by the use of the State Hospital staff for evaluations. He simply states the potential exists. The State Hospital staff designated by the district court to evaluate Indvik is not an advocate of the prosecution, though the fee is paid by the State, any more than is court-appointed counsel for the defense beholden to the prosecution merely because counsel is, as here, compensated by the State. See, McGarty v. O'Brien, 188 F.2d 151, 155 (1st Cir.1951). The doctors who evaluated Indvik are not advocates for the prosecution and Indvik has not shown that any conflict exists. Indvik does not define independent. It was mentioned at oral argument on appeal that these psychiatrists had been called as prosecution witnesses and were therefore biased and not independent. We would note, however, that had their reports been favorable to Indvik, he could have called them as defense witnesses. Also to be noted, Indvik had sufficient time prior to trial to examine these reports and at trial to cross-examine each psychiatrist as to the preparation of the reports and the resulting diagnoses. Indvik directs us to a recent decision, Ake v. Oklahoma, 470 U.S. —, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ake was tried for two counts of murder in the first degree, a crime punishable by death in Oklahoma, and for two counts of shooting with intent to kill. His sole defense was insanity. There was no expert testimony for either side on Ake's sanity at the time the offense was committed. The jurors were instructed that Ake could be found not guilty by reason of insanity if he did not have the ability to distinguish right from wrong at the time of the commission of the offense. They were also told that Ake was to be presumed sane at the time the crime was committed unless he presented evidence sufficient to raise a reasonable doubt about his sanity at the time. The jury found Ake guilty and sentenced him to the death penalty on each of the two murder counts, and to 500 years' imprisonment on each of the two counts of shooting with intent to kill. The court held that: We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. ... we leave to the States the decision on how to implement this right. Ake, supra, 470 U.S. at —, 105 S.Ct. at 1097, 84 L.Ed.2d at 66. In the instant case Indvik was not denied access to a competent psychiatrist. He saw two psychiatrists and, had they reported that he was not mentally competent, he would have had the benefit of their testimony as expert witnesses for the defense. Contrarily, Ake had no psychiatric testimony to present at trial as to the issue of his mental competence at the time the criminal conduct occurred. From the circumstances of this case we conclude that the State Hospital staff conducted a sufficient examination to satisfy the requirements of Ake and to have safeguarded the rights of Indvik.
+The second issue is whether or not there was probable cause to justify the arrest of Indvik. The resolution of this issue requires a two-pronged analysis. See, State v. Arntz, 286 N.W.2d 478, 479 (N.D.1979). The first prong is whether or not the initial stop was justified. The second prong is whether or not the warrantless arrest was justified. We first address whether or not the initial stop was justified. It must be determined at what point in the present factual situation the stop took place. We conclude that the stop took place when Deputy Trottier used his flashing red lights to alert Indvik to stop his vehicle. This conclusion rests on several premises. A traffic stop significantly curtails the freedom of action of the driver and the passengers, if any, of the detained vehicle. Berkemer v. McCarty, 468 U.S. 420, —, 104 S.Ct. 3138, 3149-50, 82 L.Ed.2d 317, 333 (1984). A stop is a temporary restraint of a person's freedom. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When a police officer turns on his flashing red lights it constitutes the first step in the stop and the driver must make a decision. Few motorists can ignore or disobey a directive to pull over. Id. 468 U.S. at —, 104 S.Ct. at 3148-49, 82 L.Ed.2d at 332. There is no choice, for to choose not to stop is to have committed a crime. Indvik chose to ignore the flashing red lights and, in so doing, committed a crime under North Dakota law. § 12.1-08-02, N.D.C.C. This is not to say that each time an officer turns on his flashing red lights, a stop has occurred. There may be several motorists in the vicinity of an officer when he uses his flashing red lights. To constitute a stop by the use of flashing red lights, the officer must have the intent to stop the specific motorist and the motorist must be cognizant of the officer's presence. See People v. Shabaz, 424 Mich. 42, 378 N.W.2d 451 (1985). The stop in the present case is analogous to the  Terry stop and, therefore, must be analyzed under the appropriate test. See Terry v. Ohio, supra . We embrace the standard test, that an officer must have an articulable basis or reasonable suspicion for stopping a vehicle for investigation. State v. Dorendorf, 359 N.W.2d 115 (N.D.1984); Terry v. Ohio, supra . An investigating officer may draw inferences and make deductions which would elude a layperson. U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). The standard is an objective one. The question is whether or not a reasonable person in the officer's position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in criminal activity. Cortez, supra 449 U.S. at 417, 101 S.Ct. at 694-95. There was not the requisite reasonable suspicion to justify a stop of Indvik's vehicle. The record indicates that Sheriff Mueller had been told that Indvik had acted strangely earlier that evening. From this information the sheriff apparently determined that Indvik was a suspect in the shooting incident. This led the sheriff to place Indvik's home under surveillance. At some point the sheriff also found out that Indvik had access to guns. This information does not support a finding that the stop was supported by reasonable suspicion. Indvik's actions are merely innocent-seeming activities that contain no suggestion of criminal activity by itself [ Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)]. We conclude that there was not sufficient justification to support the stop of Indvik under the first prong of the Arntz analysis; and our inquiry might have ended there but for Indvik's subsequent actions. Indvik's independent and intervening actions of engaging the officer in a high-speed chase, running from the police officers into the woods, drawing a firearm on the police officers—and actually firing it—break the chain of causation and dissipate the taint of the prior illegality, i.e., the invalid stop. Com. v. King, 389 Mass. 233, 449 N.E.2d 1217 (1983). Indvik's independent and intervening actions subsequent to the officer's attempt to stop Indvik certainly created probable cause for his arrest on the charge of terrorizing. § 12.1-17-04, N.D.C.C. Furthermore, his action of carrying a loaded firearm made it reasonable for the officers to conclude that Indvik could have been the perpetrator of the earlier gun-shooting incidents. The second prong of the analysis is whether or not the warrantless arrest was justified. An arrest without a warrant is valid when a law enforcement officer has probable cause to believe that the arrested person committed a felony. § 29-06-15(1-6), N.D.C.C.; State v. Lind, 322 N.W.2d 826, 833 (1982). Probable cause to support a warrantless arrest exists when the facts and circumstances within a police officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed. Lind, supra . The police officers had probable cause to effectuate a warrantless arrest under § 29-06-15(1-6), N.D.C.C. The warrantless arrest is valid.
+The next issue is whether or not the trial court erred in admitting into evidence the firearm taken from Indvik following his arrest. Indvik asserts that the firearm should be inadmissible as fruit of the poisonous tree. We note that had the firearm been taken from Indvik following an illegal stop it would have been inadmissible. However, Indvik's independent and intervening actions dissipated the taint and the firearm is admissible. The order of the district court is affirmed. ERICKSTAD, C.J., and VANDE WALLE, LEVINE and MESCHKE, JJ., concur.",issues
+705,1244560,1,1,"Ralph A. Allen, petitioner, seeks review of a court of appeals' decision affirming an award of the Industrial Commission of Arizona (Commission). The Commission denied jurisdiction to hear petitioner's workers' compensation claim because petitioner had failed to file his claim within one year as required by A.R.S. § 23-1061(A). We have jurisdiction pursuant to Arizona Constitution article VI, section 5(3) and A.R.S. § 23-948.",jurisdiction
+706,2398709,1,2,"The case under consideration might be termed a jurisdictional hybrid, having followed a rather circuitous path to reach this court. Section 38-351a, printed in full in the footnote, [1] represents an attempt by the legislature to seek this court's opinion prior to the effective date of the act on the various foreseeable constitutional questions that almost inevitably would arise upon its implementation. That portion of the act to which these questions apply was effective January 1, 1973. However, § 38-351a was effective May 19, 1972, the date of its approval, and by this provision the legislature sought to eliminate what it foresaw as the principal causes of procedural delay in achieving a prompt judgment from this court. The unfortunate effect of this section in its actual application was to color with uncertainty some of the acts of the parties performed in perfecting the present reservation. To avoid procedural impediments to a full and final determination of all of the issues presented, the parties agreed upon a course that, in their determination, satisfied our traditional procedures for such actions, as well as the requisites of § 38-351a. The action was begun, as intended by the legislature, prior to the effective date of the challenged provisions ; however, the complexity of the various issues and the enormous and far-reaching consequences of any judicial resolution, of necessity affecting a significant class of potential parties, mandated a very deliberate, thorough notice process to define the necessary parties and to ensure their opportunity to participate. Thus, more than two years subsequent to the effective dates of the complete act, the case finally has reached the threshold of resolution. The plaintiffs have raised some questions with respect to which their standing is uncertain, but the parties have urged that we exercise our discretion and consider all issues raised in this action. We adhere to our rule that where, as here, the plaintiffs have standing to raise certain issues pertaining to the controversy, this court, in matters of significant public moment where the public interest would best be served by a dispersal of all constitutional clouds over the act in question, will exercise that discretion and decide all closely related issues. Heiberger v. Clark, 148 Conn. 177, 184, 169 A.2d 652; West v. Egan, 142 Conn. 437, 441, 115 A.2d 322; Ruppert v. Liquor Control Commission, 138 Conn. 669, 673, 88 A.2d 388. The parties have meticulously respected the bounds of propriety in developing the class of plaintiffs and defendants actually involved, and we find that further efforts to join all of those who have standing to raise each of the remaining few particular issues for which the present parties' standing may be challenged might well border on barratry. The interests of the plaintiffs are unquestionably adverse to those of the defendants and, further, their interest in nearly all aspects of this controversy is sufficient to guarantee a true and complete adversary presentation of all the questions discussed in the briefs. Numerous specific questions are propounded in the stipulation for reservation; the parties, however, centered their attention on certain major issues, leaving others unmentioned in their briefs. The exercise of our discretion to waive the standing requirements for each issue cannot be extended to allow us to treat those issues not briefed. Rather than answer each question as propounded in the stipulation, we have chosen to follow the format suggested by the briefs and will discuss the issues as they were therein raised and argued.",jurisdiction
+707,1613951,1,1,"The Committee, in its regular-cycle report, proposes amendments to Florida Rules of Juvenile Procedure 8.045 (Notice to Appear); 8.090 (Speedy Trial); 8.135 (Correction of Disposition or Commitment Orders); 8.210 (Parties and Participants); 8.257 (General Magistrates); 8.350 (Placement of Child Into Residential Treatment Center After Adjudication of Dependency); 8.515 (Providing Counsel to Parties); and 8.535 (Postdisposition Hearings) and forms 8.911 (Uniform Child Custody Jurisdiction and Enforcement Act Affidavit); 8.930 (Juvenile Notice to Appear); 8.964 (Dependency Petition); 8.966 (Adjudication Order-Dependency); 8.980 (Petition for Termination of Parental Rights Based on Voluntary Relinquishment); 8.981 (Petition for Involuntary Termination of Parental Rights); 8.983 (Adjudication Order and Judgment of Involuntary Termination of Parental Rights); and the adoption of new form 8.975 (Dependency Order Withholding Adjudication). Prior to filing its report with the Court, the Committee published the proposed amendments in The Florida Bar News. It received one comment. After the Committee filed its report with the Court, the proposed amendments were again published in The Florida Bar News. The Court received seven comments. One of the seven was by the same commenter who responded to the first publication and raised the same issues as his comment to the Committee. The Committee filed a response to the comments, reiterating its adherence to its original recommendations. According to the response, the Committee considered many of the issues raised by the comments during its deliberative process, but concluded the proposed amendments were needed. After considering the comments and holding oral argument, we adopt most of the Committee's proposed amendments without change, adopt a few with minor modifications, and adopt the new form as proposed, as discussed below.",facts
+708,2628312,1,3,"The ultimate question before this court on petition for review is whether the appellants had standing to challenge the KDHE's issuance of a permit for the construction and operation of a landfill in Harper County. Standing is a jurisdictional question whereby courts determine whether the plaintiff has alleged such a personal stake in the outcome of a controversy as to warrant invocation of jurisdiction and to justify exercise of the court's remedial powers on his or her behalf. Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 (1996). A party must have a sufficient stake in the outcome of an otherwise justiciable controversy in order to obtain judicial resolution of that controversy. Harrison, 241 Kan. at 176, 734 P.2d 1155. Because standing implicates the court's jurisdiction to hear a case, the existence of standing is a question of law over which this court's scope of review is unlimited. 312 Education Ass'n, 273 Kan. at 882, 47 P.3d 383. Additionally, we must bear in mind that this case comes before us after the district court granted Waste Connections' motion to dismiss. The district court's ruling was made before commencement of discovery. Under these circumstances, we accept the facts alleged in the petition as true, along with any inferences that can be reasonably drawn therefrom. If those facts and inferences demonstrate that the appellants have standing to sue, the decision of the district court must be reversed. See McCormick v. Board of Shawnee County Comm'rs, 272 Kan. 627, 634, 35 P.3d 815 (2001), cert. denied 537 U.S. 841, 123 S.Ct. 170, 154 L.Ed.2d 65 (2002).",standard of review
+709,2176088,1,2,"In June 2005, plaintiffs and defendants entered into a real estate contract for the purchase and sale of certain residential property located in Orland Park, Illinois. The contract provided for proration of real estate taxes as follows: Prorations of general taxes shall be on the basis of 105% of the last ascertainable bill. If said bill [is] based on a partial assessment or on an unimproved basis for improved property, a written agreement (with escrow) for final proration when the complete assessment information is available from the County Assessor shall be signed at closing by the parties hereto. At the September 14, 2005, closing, plaintiffs received a real estate tax credit of $3,025.92 for 2004, and a credit of $4,076.08 for 2005. The credits were based on the 2003 real estate tax figure, as shown on the title commitment, prorated according to the above contract provision. After closing, the final 2004 tax bill issued, disclosing a tax liability of $7,876.59, substantially more than the $3,025.92 credit plaintiffs received at closing. According to the allegations of plaintiffs' complaint, upon receipt of the 2004 tax bill, investigation revealed that the 2003 tax figure was based on a partial assessment. [1] Plaintiffs' position was summed up in an October 12, 2005, letter from plaintiffs' attorney to defendants' attorney, which was attached to the complaint. The letter stated: Enclosed is a copy of the tax bill that just came out   . As you can see, taxes went up quite a bit. We checked with the county to find out why. They tell us that the 2003 bill was based on a partial assessment. No one had disclosed that fact to us at or prior to closing. In these types of situations, under the contract we should have entered into a re-proration agreement. The amount due from your client to mine for 2004 taxes is $4,850.67 (the actual bill of $7,876.50 less the credit   of $3,025.92). The amount due from your client to mine for the reprorated 2005 taxes is $3,780.93 (10,627.43 x 105% = 11,158.80/365 x 257 = 7,857.01-4,076.08  ). The total due then [is] $8,631.60. Plaintiffs alleged that the discrepancy in the taxes was either a mutual mistake of fact, or was known by the defendants and not disclosed by them. Plaintiffs sought damages of $8,631.60, plus court costs. Defendants answered the complaint, generally denying that plaintiffs were entitled to a reproration. Defendants also asserted, as an affirmative defense, that they had no knowledge that any real estate taxes, past or present, were based on a partial assessment, and that defendants gave to plaintiffs what they believe was a proper real estate tax credit at the time of closing based upon the available information and per the contract. Defendants also filed a motion to dismiss under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2006)). Defendants argued that under the merger doctrine the real estate contract merged into the deed, thus precluding recovery by plaintiffs. Although plaintiffs argued that mutual mistake and fraudulent concealment are recognized exceptions to the merger doctrine, defendants argued that this court had never sanctioned a broad mutual mistake exception and that, in any event, this court's opinion in Lenzi v. Morkin, 103 Ill.2d 290, 82 Ill.Dec. 644, 469 N.E.2d 178 (1984), controlled. The circuit court granted defendants' motion to dismiss with prejudice. Plaintiffs appealed. The appellate court reversed the judgment of the circuit court. 371 Ill.App.3d at 351, 308 Ill.Dec. 836, 862 N.E.2d 1039. The appellate court distinguished Lenzi because the merger doctrine was not at issue in that case, and held that the doctrine does not apply to plaintiffs' action for real estate taxes. 371 Ill.App.3d at 348-51, 308 Ill.Dec. 836, 862 N.E.2d 1039. We allowed defendants' petition for leave to appeal. See 210 Ill.2d R. 315.",facts
+710,4216303,1,1,"[¶2] The court found that, despite the parents having made marginal progress toward reunification, they have failed to take responsibility for their son; they are unwilling or unable to protect him from jeopardy within a time reasonably calculated to meet his needs; they have failed to make a good faith 2 effort toward reunification; and termination of their parental rights is in the child’s best interest.1 See 22 M.R.S. § 4055(B)(2)(b)(i)-(ii), (iv); In re Alana S., 2002 ME 126, ¶¶ 13, 21-23, 802 A.2d 976. After over a year, the parents’ minimal progress toward reunification was totally inadequate to address the jeopardy facing the child were he to return to their care. The court based this determination on the following findings of fact: [The father] has a history of violence and mental health concerns that present a risk to his son. . . . There are concerns about sexually deviant behavior over a period of years by [the father]. [The father’s] continued substance abuse presents a risk of harm to his child. . . . . [The father] has been very inconsistent in visiting his child [and] has missed visits for reasons the court finds utterly inadequate justification for missing visits. . . . [The majority of the father’s] intellectual abilities were in the borderline range [and] make it likely that [he] is likely to need significant support in order to meet a child’s daily living needs. . . . . [The father] has also failed to attend random drug screenings, failed to engage in mental health counseling, failed to consult with a psychiatrist. . . . All the while he has maintained an attitude that there is nothing about him that needs fixing or changing. 1 At the time of the termination hearing, the child had been in foster care for over a year. 3 [The mother] has ongoing mental health issues that pose a risk to her consistent parenting of the baby. [She] has a history of low intellectual functioning that has impaired her parenting of older children and presents a risk for this baby. . . . [She] consented to [a] petition to terminate her rights regarding [her older son] . . . . . . . [The mother] went along while [the father] stayed in the house night after night in violation of the [initial] safety plan. She stuck with him as he called out of visits with the child and blew off his counseling. . . . She has consistently chosen [the father] over the child. [The mother] has also failed, independently of [the father], to make progress necessary to alleviate jeopardy and take responsibility for the child. She failed to complete drug screens. She failed to be in individual counseling for much of the duration of the case.",facts
+711,1314187,1,3,"[1,2] Appeals of matters arising under the Nebraska Probate Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 1995 & Cum. Supp. 2004), are reviewed for error on the record. In re Estate of Rosso, ante p. 323, 701 N.W.2d 355 (2005). When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. [3,4] An appeal from the county court's allowance or disallowance of a claim in probate will be heard as an appeal from an action at law. See In re Estate of Matteson, 267 Neb. 497, 675 N.W.2d 366 (2004). In reviewing a judgment of the probate court in a law action, an appellate court does not reweigh evidence, but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. See In re Estate of Krumwiede, 264 Neb. 378, 647 N.W.2d 625 (2002). The probate court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous. See id. On a question of law, however, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Id.",standard of review
+712,865838,1,1,"¶6. On appeal, this Court: employs a de novo standard of review in reviewing a lower court's grant of summary judgment motion. Summary judgment is appropriate if the evidence before the Court – admissions in the pleadings, answers to interrogatories, 2 depositions, affidavits, etc.– shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. This Court does not try issues on a Rule 56 motion, but only determines whether there are issues to be tried. In reaching this determination, the Court examines affidavits and other evidence to determine whether a triable issue exists, rather than the purpose of resolving that issue. Miss. Gaming Comm'n v. Treasured Arts, 699 So. 2d 936, 938 (Miss. 1997)) (internal citations omitted). ¶7. According to Mississippi Code Section 83-23-103, “[t]he purpose of [MIGA] is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer. . . . ” Miss. Code Ann. § 83-23-103 (Rev. 1999). Furthermore, Mississippi Code Section 83-23-107 requires that the MIGA statute “shall be liberally construed to effect the purpose under § 83-23-103. . . .” Miss. Code Ann. § 83-23107 (Rev. 1999). Accordingly, this Court has held: The Mississippi Insurance Guaranty Association Law was enacted to protect policy holders of certain kinds of insurance in the event of their insurer's insolvency. MIGA is a statutorily-created unincorporated association consisting of insurance companies doing business in Mississippi. Each solvent insurer doing business in this state is assessed a pro rata share of amounts paid on behalf of insolvent insurers. MIGA is prohibited by statute from paying anything other than a covered claim, and the statute further requires that all other sources of insurance must be exhausted before looking to MIGA for any coverage. Miss. Ins. Guar. Ass'n v. Byars, 614 So. 2d 959, 963 (Miss. 1993) (internal citations omitted). ¶8. The matter before us today is controlled by the following statutory provision: Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer, which is also a 3 covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this article shall be reduced by the amount of any recovery under such insurance policy. Miss. Code Ann. § 83-23-123(1) (Rev. 1999). In applying the statute, we first must determine whether Leitch had “a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer. . . .” If so, we then must determine whether that claim was also “a covered claim,” that is to say, a claim covered by the MIGA statutes. ¶9. As already stated, Leitch was covered by a State Farm insurance policy which included uninsured motorist coverage. There is no assertion that State Farm is “an insolvent insurer.” Thus, we see no logical argument distinguishing Leitch’s claim against State Farm from the statutory language: “a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer. . . .” Id. ¶10. We next must determine whether Leitch’s claim against State Farm was also a “covered claim,” a term defined by statute as follows: an unpaid claim, including one of unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this article applies issued by an insurer, if such insurer becomes an insolvent insurer and (1) the claimant or insured is a resident of this state at the time of the insured event, provided that for entities other than an individual, the residence of a claimant or insured is the state in which its principal place of business is located at the time of the insured event; or (2) the property from which the claim arises is permanently located in this state. “Covered claim” shall not include any amount awarded as punitive or exemplary damages; or sought as a return of premium under any retrospective rating plan; or due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise and shall preclude recovery thereof from the insured of any insolvent carrier to the extent of the policy limits. Miss. Code Ann. § 83-23-109(f) (Rev. 1999). 4 ¶11. The very basis of Leitch’s suit against MIGA is his assertion that his claim is a “covered claim,” that is, that it is covered by the MIGA statutes. As recited in the facts above, at the time of the accident, the H-G&F truck was insured by Reliance Insurance Company, which has since been declared an insolvent insurer within the meaning of Section 83-23-109 of the Mississippi Code. Thus, we find Leitch’s claim is unquestionably a “covered claim,” that is, a claim against MIGA. ¶12. Because Leitch has a claim against his uninsured motorist carrier, State Farm, and a “covered claim” – as that term is defined in the MIGA statutes – we must apply the following mandatory statutory language: “Any amount payable on a covered claim under this article shall be reduced by the amount of any recovery under such insurance policy.” Miss. Code Ann. § 83-23-123(1) (Rev. 1999). In restating the statutory language and inserting the appropriate nomenclature, the statute reads: “Any amount payable [by MIGA] shall be reduced by the amount of any recovery [from State Farm].” Miss. Code Ann. § 83-23-123(1) (Rev. 1999). ¶13. Leitch cites our decision in Mississippi Insurance Guaranty Assocation v. Cole ex rel. Dillon, 954 So. 2d 407, 414 (Miss. 2007), for the proposition that his settlement with State Farm should not diminish MIGA’s coverage or obligation to pay. In Cole, the plaintiff brought a medical-malpractice action against her treating physician, her physician’s practice group, and the community hospital where she was treated. Id. The plaintiff settled with the physician and the practice group. After the suit had been filed, the hospital’s insurer became insolvent. Id. MIGA defended the hospital and filed a motion for summary judgment arguing that a joint tortfeasor's solvent insurance coverage had to be exhausted before it had any 5 responsibility to pay. Id. Thus, under MIGA’s analysis of the statute, the settlement between the plaintiff, the physician, and the practice group -- which was in excess of MIGA’s $300,000 statutory maximum obligation -- relieved MIGA of any responsibility to pay. Id. ¶14. We held that the plaintiff’s claims against the doctor and the practice group were not “covered claims” as contemplated by the statute, because their insurance carrier remained solvent. Therefore, “these defendants never had an insolvent insurer and thus failed to satisfy the definition of ‘covered claim.’” Id. at 413. The Court then reasoned that, because these were not “covered claims,” the plaintiff was not required to exhaust her remedies through these policies pursuant to Mississippi Code Section 83-23-123(1), nor would any recovery from those policies reduce MIGA’s obligation. Id. at 413-414. ¶15. Although our result in Cole was correct, our reasoning requires clarification. Our analysis should have focused on determining whether the plaintiff’s “covered claim” (as defined in the MIGA statutes) was the same claim as the plaintiff’s claim against each of the other insured defendants. For MIGA to have a statutory obligation and authority to pay, any “claim” against a solvent insurer that is the same as the “covered claim” against MIGA must first be exhausted. Miss. Code Ann. § 83-23-123(1) (Rev. 1999). We here repeat the language of the statute for clarity: “Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer, which is also a covered claim . . . .” Id. (emphasis added). Although the defendants in Cole were joint tortfeasors, they were not “insurers,” and the respective claims against them were not the same. For the statute to have application, the covered claim against MIGA must also be “a claim against an insurer . . . .” Miss Code Ann. § 83-23-123(1) (Rev. 1999). Although the 6 plaintiff in Cole had claims against other defendants, she had no claim against a solvent insurer “which [was] also a covered claim . . . .” Id. (emphasis added). Thus, our holding in Cole was properly based on the fact that the plaintiff’s “covered claim”(inherited by MIGA from the hospital’s insolvent insurer) was not also a claim the plaintiff had against a solvent insurer. ¶16. The case before us today presents a plaintiff who made a claim against State Farm (a solvent insurer) which is the same as the “covered claim” he now pursues against MIGA. The maximum amount payable on a “covered claim” is $300,000. Miss. Code Ann. § 83-23115((1)(a)(iii). According to the statute, “[a]ny amount payable on a covered claim . . . shall be reduced by the amount of any recovery under [the State Farm] policy.” Miss. Code Ann. § 83-23-123(1). Accordingly, MIGA is statutorily required to reduce the “amount payable on [Leitch’s] covered claim . . . by the amount of any recovery under [the State Farm] insurance policy.” ¶17. When we are required to interpret a constitutional statute, our duty is to give full effect and unfettered deference to the statutory language chosen by the Legislature. Although our interpretations are not controlled by the decisions of other jurisdictions, they aid us in our determination of what is a reasonable interpretation – particularly where those other jurisdictions have interpreted the same or substantially similar language. Our decision today is in accord with numerous other state court decisions.1 1 See e.g. Colo. Ins. Guar. Assoc. v. Menor, 166 P.3d 205 (Colo. App. 2007); Robinson v. Gailno, 275 Conn. 290, 880 A.2d 127 (Conn. 2005); Bird v. Norpac Foods, Inc. 325 Or. 55 (Or. 1997); Zhou v. Jennifer Mall Rest., Inc. 699 A.2d 348 (D.C. 1996); Pinkham v. Morrill, 622 A.2d 90 (Me. 1993); Burke v. Valley Lines, Inc., 421 Pa. Super. 362, 617 A.2d 1335 (Pa. Super. Ct. 1992); Hawkins v. Ky. Ins. Guar. Assoc., 838 S.W.2d 410 (Ky. Ct. App. 1992); Stecher v. Iowa 7 ¶18. Assuming Leitch’s damages amount to be $300,000 or more, the “amount payable on a covered claim” by MIGA would be $300,000, because the maximum amount payable by MIGA is $300,000;2 and that full amount has been discharged by the $300,000 payment to Leitch from State Farm. See Miss. Code Ann. § 83-23-123(1). Accordingly, the trial court was correct in granting summary judgment, as was the Court of Appeals in affirming the trial court’s ruling.",analysis
+713,2637827,1,2,"[¶ 4] The undisputed material facts relevant to this appeal are not many. On November 9, 2004, the appellant was a pretrial detainee incarcerated in the Laramie County Detention Facility. While she was mopping the floors in the pod that evening, she was sexually assaulted by a detention deputy. [1] Upon learning about the sexual assault, the sheriff suspended, and then terminated, the deputy's employment on the ground that sexual contact between inmates and detention deputies violated the policies of the sheriff's office.",facts
+714,1865465,1,4,"The Water Management Board is authorized to regulate and control the development, conservation, and allocation of the right to South Dakota's waters. See SDCL ch. 46-1; SDCL 46-2-9; SDCL 46-2-11; Matter of South Dakota Water Management Board, 351 N.W.2d 119 (S.D. 1984); and Matter of South Lincoln Rural Water System, 295 N.W.2d 743 (S.D.1980). Pursuant to SDCL 1-26-15, the Board was required to provide rules for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency. ARSD 74:02:01:46 provides procedures for such declaratory rulings, i.e., it simply effectuates the law as declared by the State Legislature. Landers contends, however, that this action was beyond the scope of the Board's jurisdiction because it involves disputed facts and seeks coercive relief. [] With Landers' contention, we disagree. Controversies and disputed questions of fact do not preclude a case from declaratory procedures. Greene v. Wiese, 75 S.D. 515, 69 N.W.2d 325 (1955). Declaratory and coercive relief may both be granted upon proper grounds. 22 Am.Jur.2d Declaratory Judgments § 100 (1965). See also, D. Dobbs, Handbook on the Law of Remedies, § 2.1 (1973). SDCL 1-26-25 provides that the Board may direct the taking of action, and under SDCL 1-40-19 and SDCL 1-32-1(10), the Board may order action or the abatement of action. Whether or not the Board had the independent authority to enforce its order (a separate consideration), as the footnote reveals the circuit court questioned, need not be addressed for the circuit court most assuredly has the authority to enforce its own order requiring removal of the dams. Landers further contends that the circuit court had exclusive jurisdiction of this matter because SDCL 46-10-4.1 deprives the Board of such jurisdiction. SDCL 46-10-4.1 provides, inter alia, that any person may bring an action for the purpose of determining conflicting water rights or rights to use water. In addressing Landers' contention, we first note that SDCL 46-10-4.1 states that a person may bring an action in circuit court. The statute does not, however, require it to be brought in circuit court. Second, we note that in other areas of the law, we have recognized that courts and administrative bodies can each have jurisdiction over the same type of dispute. See Mordhorst v. Egert, 88 S.D. 527, 223 N.W.2d 501 (1974). Under the circumstances here, both the Board and the circuit court could statutorily entertain this matter and we reject Landers' assertion that the trial court had exclusive jurisdiction. It is noted that Romey sought coercive relief after the Water Resources engineer informed Landers to halt the construction of dams; that Landers indicated he would; but that Landers continued to construct additional dams, dikes, and levees. Landers did not have a water permit nor had he filed an application for a water permit to appropriate water for irrigation for any of the dams, dikes, and levees constructed by him on either branch of Black Banks Creek. It is understandable that Romey and State officials would seek redress before the Water Management Board of this State to stop, correct, and alleviate this type of conduct. We note further that the two original dams on the south branch of the Black Banks Creek were permitted to exist to the benefit of Landers. This Board attempted to be fair and to achieve the ends which could be fairly said to effectuate the policy of the State Legislature, which State Legislature created the administrative agency and defined its duties.",jurisdiction
+715,2822799,1,1,"This Court's power to issue remedial writs derives from article V, section 4.1 of the Missouri Constitution. State ex rel. Dir. of Revenue v. Mobley, 49 S.W.3d 178, 179 (Mo. banc 2001). A writ of mandamus may issue under very limited circumstances as it is a hard and fast unreasoning writ, and is reserved for extraordinary emergencies. Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980). A court should issue a writ of mandamus only if the relator has demonstrated a clear, unequivocal, and specific right to have the respondent take action. State ex rel. Missouri Growth Ass'n v. State Tax Comm'n, 998 S.W.2d 786, 788 (Mo. banc 1999). I would not issue a writ of mandamus in this case because Todd Hewitt has an adequate remedy by appeal following arbitration. See Rule 84.22(a); State ex rel. Reser v. Martin, 576 S.W.2d 289, 290-91 (Mo. banc 1978). I strongly disagree with the per curiam opinion's sidestepping of the statutory right of appeal and issuance of a writ of mandamus in this case, claiming mandamus is an appropriate remedy when alternative remedies waste judicial resources or result in a burdensome delay, creating irreparable harm to the parties. Slip op. at 7. That justification/rationalization is untenable in a case like this, in which the timeline 1 alone demonstrates that the resolution of contract law issues in response to the motion to compel arbitration under the guise of saving judicial resources or avoiding delay is just the wrong decision.",introduction
+716,4440979,1,2,"¶5 This Court's review of a dismissal for failure to state a claim is conducted de novo . Lockhart v. Loosen, 1997 OK 103 , ¶ 4, 943 P.2d 1074 , 1077; Washington v. State ex rel. Dep't of Corr., 1996 OK 139 , ¶ 7, 915 P.2d 359 , 361. Questions of statutory interpretation are pure questions of law and are reviewed de novo . Ward Petroleum Corp. v. Stewart , 2003 OK 11, ¶4, 64 P.3d 1113, 1115. ¶6 The fundamental rule of statutory construction is to ascertain and give effect to legislative intent, and that intent is first sought in the language of the statute. YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶6, 136 P.3d 656, 658. If there is an ambiguity, we apply the rules of statutory construction. Id . Ambiguity exists if there is more than one reasonable interpretation. Id . In construing ambiguous statutory language . . . we look to the various provisions of the relevant legislative scheme to ascertain and give effect to the legislative intent and the public policy underlying that intent. Id .",standard of review
+717,3166955,1,1,"¶1 We are asked to review the court of appeals‘ retroactive application of our decision in State v. Clopten to Mr. Guard‘s case. We issued Clopten while Mr. Guard‘s case was on direct appeal. In Clopten, we held that ―in cases where eyewitnesses are identifying a STATE v. GUARD Opinion of the Court stranger and one or more established factors affecting accuracy are present, the testimony of a qualified expert is both reliable and helpful, as required by rule 702.‖1 Prior to Clopten, there was a ―de facto presumption against the admission of eyewitness expert testimony,‖ and courts generally relied on jury instructions to address this issue.2 Mr. Guard‘s motion to put on an expert on eyewitness testimony was denied because he failed to establish that such testimony was reliable, but the jury was instructed on the possible issues surrounding eyewitness testimony. The jury found Mr. Guard guilty of kidnapping, and he was subsequently sentenced to a prison term of ten years to life. Mr. Guard timely appealed his conviction, but his appeal was delayed due to his attorney‘s failure to file a docketing statement. ¶2 In deciding whether to apply Clopten retroactively, the court of appeals acknowledged our ―clear break‖ rule regarding retroactive application of new rules of criminal procedure to cases on direct review, but declined to apply it. Rather, the court concluded that the ―unusual circumstances‖ in this case required the retroactive application of our rule in Clopten.3 The court reasoned that, because the cases were very similar and were tried around the same time, if Mr. Guard‘s case had not been delayed, Guard and Clopten would ―almost inevitabl[y] . . . have been either consolidated on appeal or treated as companion cases‖ and the result in Guard ―would have been identical to the result in Clopten.‖4 Thus the court stated, ―it seems inconsistent with the administration of justice to deny Guard the benefit of the supreme court‘s approach in Clopten where, but for the happenstance that delayed Guard‘s appeal, it appears to us that the same analysis would have been applied to both cases.‖5 The court therefore applied the rule in Clopten, holding that it was harmful error for the trial court not to admit Mr. Guard‘s eyewitness expert. ¶3 The State appealed. It argues that Clopten was a ―clear break‖ from our previous caselaw on the admissibility of eyewitness expert testimony and should not have been applied retroactively. The State also argues that Mr. Guard did not preserve the issue. Mr. Guard counters that the court of appeals did not apply Clopten 1 2009 UT 84, ¶ 49, 223 P.3d 1103. 2 Id. ¶ 30. 3 State v. Guard, 2013 UT App 270, ¶ 18, 316 P.3d 444. 4 Id. 5 Id. ¶ 19. 2 Cite as: 2015 UT 96 Opinion of the Court retroactively (but merely found it persuasive), that Clopten was not a ―clear break,‖ and that Mr. Guard adequately preserved the issue. ¶4 We reverse. We conclude that Mr. Guard adequately preserved the issue. We decline to decide whether Clopten was a ―clear break‖ (and therefore should not have been given retroactive application) because we conclude that our ―clear break‖ rule is flawed and therefore abandon it. Instead, we return to our prior precedent—new rules of criminal procedure announced in judicial opinions are applicable retroactively to all cases pending on direct review at the time the new rule is announced. ¶5 After determining that Clopten applies retroactively to Mr. Guard‘s case, we then address whether the trial court abused its discretion under the Clopten standard when it failed to admit Mr. Guard‘s eyewitness expert. We conclude that it was not an abuse of discretion for the trial court to deny Mr. Guard‘s motion to admit eyewitness expert testimony under Clopten, and thus we reverse the court of appeals‘ decision.",introduction
+718,884960,1,3,"¶ 11 Did the District Court err by granting both Defendants' motions for summary judgment on the issue of defamation with respect to the falsity of the statements made? ¶ 12 Appellant Hale argues that the District Court erred in granting summary judgment to Billings Police and TCI based on the conclusion that the information Billings Police provided TCI and the information TCI broadcast to the public was either truthful, or, if not truthful, then constitutionally protected, and therefore not defamatory as a matter of law. ¶ 13 Pursuant to § 27-1-802, MCA, defamatory libel is: [F]alse and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation. Thus, as a first step toward summary judgment, the moving parties here must establish the absence of genuine issues of material fact relating to the truthfulness of the publications in question. ¶ 14 Montana's Constitution provides a necessary beginning reference point to this discussion, a point not directly raised by the parties but, nevertheless, present within the parties' cited authority. In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts. Art. II, § 7 Mont. Const. (emphasis added). ¶ 15 This Court, however, has distinguished this provision by finding that there is no absolute prohibition against granting summary judgment in libel cases. Williams v. Pasma (1982), 202 Mont. 66, 72, 656 P.2d 212, 215 (citing Griffin v. Opinion Publishing Co. (1943), 114 Mont. 502, 138 P.2d 580). Not since Griffin was decided, however, has the specific interplay between judge and jury been adequately addressed by this Court. In light of the District Court's summary judgment memorandum and order, which include conclusions of law as well as fact on a number of issues that seemingly conflict with Montana's Constitution, it is imperative that we at this time determine the scope of constitutional directives found in Article II, Section 7. ¶ 16 The Restatement (Second) of Torts has been referenced as a reliable authority in myriad defamation cases in Montana, and, in fact, provided the foundation for the rules regarding the roles of judges and juries in Griffin. See, e.g., Griffin v. Opinion Publishing Co. (1943), 114 Mont. 502, 138 P.2d 580, overruled on other grounds by State v. Helfrich (1996), 277 Mont. 452, 922 P.2d 1159; Granger v. Time, Inc. (1977), 174 Mont. 42, 568 P.2d 535; Sacco v. High Country Independent Press, Inc. (1995), 271 Mont. 209, 896 P.2d 411. The Restatement acknowledges that while such states as Montana provide that in libel cases the jury shall determine the law .... it is still the province of the court to determine certain questions of law. Restatement (Second) of Torts § 614 cmt. c. (1977). It is therefore crucial to the determination of the issues before us on appeal that we establish conclusive guidelines that accord with the directives of both Article II, Section 7 and the Restatement for this and future cases. ¶ 17 To this end, we find persuasive the rule that, subject to the control of the court whenever the issue arises, the jury determines whether ... the matter was true or false. Restatement (Second) of Torts § 617. The Restatement provides one caveat to this rule: if the evidence is so overwhelming that any other conclusion would be unreasonable, the court is afforded the discretion to make a proper finding. Restatement (Second) of Torts § 617 cmt. a. In contrast, the Restatement provides that the court, as a preliminary finding, must determine whether a communication is capable of bearing a particular meaning; and ... whether the meaning is defamatory. Restatement (Second) of Torts § 614. ¶ 18 Applying the foregoing to the issue of whether the District Court's conclusion that the information Billings Police provided TCI was essentially truthful, we conclude that Article II, Section 7 of the Montana Constitution, coupled with Sections 614 and 617 of the Restatement, is dispositive. Unless the evidence is so overwhelming that any other conclusion would be unreasonable, the issue of whether the statements were true or false is a determination for the jury alone to make. See also Hickey v. Settlemier (1993), 116 Or.App. 436, 841 P.2d 675, 678 (following Restatement (Second) of Torts, § 617(b), and concluding that the truth or substantial truth of a defendant's statement is a question of fact for the jury and summary judgment is inappropriate). ¶ 19 The record here indicates that Billings Police provided TCI with Hale's name, physical description, photo, and crime charged, all of which at the time — January 9, 1996 — was seemingly true information on its face. However, reviewing the evidence in the record as a whole, we cannot agree that any other conclusion as to the truth or falsity of the statements would be unreasonable. ¶ 20 Hale contends, and Respondents do not deny, that the information Billings Police provided to TCI, along with similar information of other persons subject to outstanding arrest warrants, was offered on a sheet upon which the phrase most wanted was printed. Pleadings by Respondent Billings Police indicate that they provided information to create a most wanted list for dissemination to the public. Furthermore, the record indicates that Billings Police, in assisting TCI with its Crimestopper program, were to some extent aware that the broadcast would portray Hale as a potentially armed and dangerous fugitive, who in fact was one of the most wanted criminal suspects in Yellowstone County. Unlike circumstances where members of the press access public records, TCI's crime prevention program requested that the Billings Police supply names and information involving their most-wanted fugitives in Yellowstone County, so that ordinary citizens could assist the police in locating these suspects for apprehension. Therefore, the question can be asked, Based on this solicitation, was the information Billings Police provided TCI false? The answer to this question, gathered from the entirety of the record before this Court, is far from conclusive. ¶ 21 The record indicates that Hale's name was chosen randomly from the three-to-five thousand outstanding arrest warrants on file with Billings Police and that his whereabouts were known at all times following the issuance of the arrest warrant, suggesting perhaps that, under any ordinary, plain-meaning definitions of the terms, he was neither a most-wanted suspect, nor a fugitive from justice. It is apparent from the record that the evidence is not so overwhelming that the statements were essentially truthful, so as to preclude a jury from determining otherwise. Thus, we hold that summary judgment as to this issue was improper, and should be determined by the jury, with proper instruction from the court. ¶ 22 As for whether statements made in TCI's broadcast were constitutionally protected opinion — the second conclusion reached on this issue by the District Court — we conclude that this is a matter which a court can and should rightfully determine upon a motion for summary judgment. Such a determination, pursuant to Restatement (Second) of Torts § 617, goes to whether the statement is capable of bearing a defamatory meaning, and whether the meaning is in fact defamatory. ¶ 23 The District Court determined that the information broadcast by TCI, namely the references to may be armed and dangerous, most wanted, and fugitive, if not entirely accurate were, nevertheless, constitutionally protected under First Amendment analysis as statements of opinion as opposed to factual assertions, and therefore could not, as a matter of law, be deemed defamatory. All parties to this action refer this Court's attention to its own analysis in Roots v. Montana Human Rights Network (1996), 275 Mont. 408, 913 P.2d 638, where we established the following rule pertaining to opinion speech derived from the United States Supreme Court decision in Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1: The First Amendment protects statements of opinion on matters of public concern where they do not contain a provable false factual connotation or where they cannot reasonably be interpreted as stating actual facts about an individual. Roots, 275 Mont. at 412, 913 P.2d at 640 (citing Milkovich, 497 U.S. at 18-20, 110 S.Ct. at 2705-06). Although crime prevention is certainly a matter of public concern, that the opinion privilege would be raised in this case, and then ruled on as a matter of law by the District Court, necessitates the following elaboration and clarification of our analysis and rule found in Roots. ¶ 24 The origins of constitutionally protected opinion can be traced, of course, to Supreme Court Justice Holmes' notion of the marketplace of ideas. See Abrams v. United States (1919), 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (dissenting opinion). Thus, ideas expressed as opinions, although potentially defamatory, may be corrected through discussion rather than by the courts. See Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (stating [h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of ideas. But there is no constitutional value in false statements of fact). ¶ 25 In reversing summary judgment in favor of an Ohio newspaper, the Milkovich Court reviewed the various protections afforded under its First Amendment jurisprudence and consequently rejected the direction taken by many lower courts, that, under Gertz dictum, opinions as opposed to facts require an additional separate constitutional privilege. Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707. Two of the protections identified by the Milkovich Court were melded by this Court into the above Roots rule. See, e.g., Milkovich, 497 U.S. at 19-20, 110 S.Ct. at 2706 (citing Philadelphia Newspapers, Inc., v. Hepps (1986), 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783, for the proposition that statements relating to matters of public concern containing a provably false factual connotation do not receive full constitutional protection; and, Hustler Magazine v. Falwell (1988), 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41, for the proposition that statements reasonably interpreted as stating actual facts about an individual — and which are therefore not imaginative expression or rhetorical hyperbole — receive no constitutional protection). ¶ 26 The misguided direction identified by the Milkovich Court was precisely the path followed by the District Court here. The trial court erred in relying on an Illinois appellate court decision that followed a pre- Milkovich federal circuit court decision. See Gist v. Macon County Sheriff's Dep't (1996), 284 Ill.App.3d 367, 219 Ill.Dec. 701, 671 N.E.2d 1154 (following test derived from Ollman v. Evans (D.C.Cir.1984), 750 F.2d 970). ¶ 27 In further reliance on Milkovich as a touchstone, we now conclude that it is error for a court to create an artificial dichotomy by distinguishing statements of opinion from statements of fact, and thereby granting unqualified immunity to the former. Milkovich, 497 U.S. at 19, 110 S.Ct. at 2706. Such a dichotomy was not our intent in Roots. In order to further clarify the rule stated there, we turn to the Restatement approach and conclude: if an opinion is not based on disclosed facts, and as a result creates the reasonable inference that the opinion is based on undisclosed defamatory facts, such an opinion is not afforded constitutional protection. See Restatement (Second) of Torts § 566 and cmt. c. (1977). ¶ 28 We now apply the Roots rule, along with the foregoing clarification, to the alleged defamatory opinion statements here. In a close paraphrase of the analysis in Milkovich, when the Billings Police and TCI informed the public, essentially, In our opinion, we think Mark Hale is a most wanted fugitive, who may be armed and dangerous, the statement implied a knowledge of facts far beyond those disclosed which may have reasonably led viewers to conclude that Hale was most wanted, was a fugitive, and was possibly armed and dangerous. See Milkovich, 497 U.S. at 18-19, 110 S.Ct. at 2705-06. Such statements of opinion can cause damage, pursuant to § 27-1-802, MCA, and are actionable, under Roots, if they contain a provably false factual connotation or can reasonably be interpreted as stating actual facts about an individual. ¶ 29 The term armed and dangerous, although qualified with may be, nevertheless implies to viewers that there are undisclosed, potentially defamatory facts upon which the opinion is based. Had the program stated that Hale was wanted for the commission of a crime involving a weapon, such as armed robbery, or was last seen carrying a sawed-off shotgun, then the statement would have been based on disclosed facts, and therefore could not have been found defamatory. Such is not the case here. Hale never stood accused of using a weapon and, ten months following the issuance of the warrant, Billings Police and TCI apparently had no idea one way or the other whether Hale even possessed a gun, let alone whether he may have been armed. Moreover, their opinion that Hale was dangerous is belied by the undisclosed fact that the Billings Police knew for months Hale's whereabouts and the nature of the offense with which was he charged, but made little effort to apprehend him. Consequently, Hale could demonstrate the falsity of the implied factual connotation created in the viewers' minds. ¶ 30 The term most wanted is offered for public consumption for a similar singular purpose: to warn that the person in question, above all other ordinary wanted persons, is the focus of intense scrutiny by law enforcement personnel, thus providing a clear connotation that the person has been identified as such based on undisclosed facts. This connotation is rendered all the more acute when coupled with the instructions to the public that police should be notified immediately, and that the suspect may be armed and dangerous. Such a factual connotation, in turn, may be proven false. The record indicates that neither the Billings Police nor TCI used any method whatsoever for determining who is or is not deserving of being identified as one of the most wanted criminal suspects in Yellowstone County. Respondents do not deny that names for Yellowstone County's Most Wanted program were chosen entirely at random. ¶ 31 Likewise, the term fugitive suggests but one urgent message to the intended hearer: the suspect has allegedly committed a crime, has eluded capture, and is now fleeing justice. Indeed, this is the essential purpose of all such Crimestopper broadcasts, to legitimately assist the police in apprehending suspects whose whereabouts are unknown. One common definition of the term describes a person who is [r]unning away or fleeing, as from the law. American Heritage Dictionary 538 (2d College ed.1985). Black's Law Dictionary similarly defines fugitive as [o]ne who flees; used in criminal law with the implication of a flight, evasion, or escape from arrest, prosecution, or imprisonment. Black's Law Dictionary 671 (6th ed.1990). Furthermore, a more specific definition of fugitive from justice describes [a] person who, having committed a crime, flees from jurisdiction of court where crime was committed or departs from his usual place of abode and conceals himself within the district. Black's Law Dictionary 671 (6th ed.1990) (emphasis added). Once offered for public consumption, the term inherently connotes that police are in pursuit of the person, and that the person is, with knowledge of the pursuit, actively avoiding confrontation or capture by either fleeing or hiding. Such a factual connotation can be proven as either true or false, and, in order for Respondents to prevail for the purposes of summary judgment here, must be unequivocally resolved in their favor. The record does not bear this out. ¶ 32 As previously stated, the record indicates that Hale's whereabouts were known at all times following the issuance of the arrest warrant, and that he was unaware that a warrant against him had been issued. Furthermore, the post-arrest broadcast contained factual discrepancies; namely, that a valid warrant for Hale's arrest remained in effect, and that Hale remained at large as a most-wanted fugitive. Therefore, providing constitutional protection under the rule stated in Roots to the statements made during TCI's broadcast would be in error. Without such protection, genuine issues of material fact regarding the falsity of the statements made during the broadcast remain in contention, and summary judgment in favor of Respondents was improper.",issues
+719,4213205,1,3,"[1] Whether a party has the right to intervene in a proceeding is a question of law.2 On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.3",standard of review
+720,4564577,1,4,"[1] An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (2019). [2] An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Id. [3] In an appeal from a declaratory judgment, an appellate court, regarding questions of law, has an obligation to reach its conclusion independently of the conclusion reached by the trial court. Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb. 434, 915 N.W.2d 36 (2018). - 827 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports CAIN v. LYMBER Cite as 306 Neb. 820",standard of review
+721,2512667,2,1,"
+(2) Welfare and Institutions Code section 602, subdivision (a) provides in relevant part: [A]ny person who is under the age of 18 years when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime . . . is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court. (Italics added.) Thus, as a matter of state law, the Legislature has granted juvenile courts the authority to declare juveniles wards of the court on the basis of acts that violate state or federal criminal law. Jose C. contends this jurisdictional grant is necessary but not sufficient; that under the supremacy clause (U.S. Const., art. VI, cl. 2), state court jurisdiction depends as well on whether Congress has withdrawn from state courts the power to exercise jurisdiction. As a constitutional matter, it has long been settled that Congress has the power to constrict state court jurisdiction, at least with respect to federal matters. ( Howlett v. Rose (1990) 496 U.S. 356, 368, fn. 15 [110 L.Ed.2d 332, 110 S.Ct. 2430]; Claflin v. Houseman, Assignee (1876) 93 U.S. 130, 137 [23 L.Ed. 833]; The Moses Taylor (1866) 71 U.S. 411, 429-430 [18 L.Ed. 397]; Martin v. Hunter's Lessee (1816) 14 U.S. 304, 337 [4 L.Ed. 97].) Relying on title 18 United States Code section 3231 (hereafter section 3231), Jose C. argues that Congress has done so here and thereby expressly preempted the instant proceeding. The first sentence of section 3231 provides: The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. This portion of the statute establishes two general principles: first, federal district courts may exercise jurisdiction over federal criminal offenses, and second, state courts may not do so. At a minimum, therefore, section 3231 displaces state court jurisdiction over the direct prosecution, conviction, and imposition of federal criminal punishment for violations of federal criminal statutes. Jose C. contends section 3231 goes further and precludes state courts from interpreting and adjudicating in any proceeding whether a federal criminal statute has been violated. In contesting whether the language of the statute bars adjudication of federal criminal conduct in the context of a state wardship petition, the People and Jose C. debate at length whether a state wardship petition gives rise to a civil or criminal proceeding. Wardship proceedings have at different times, and for different purposes, been characterized as de facto criminal (e.g., In re Gault (1967) 387 U.S. 1, 27-31, 36-37 [18 L.Ed.2d 527, 87 S.Ct. 1428]; In re Kevin S. (2003) 113 Cal.App.4th 97, 108-109 [6 Cal.Rptr.3d 178]; In re Gregory K. (1980) 106 Cal.App.3d 164, 168 & fn. 2 [165 Cal.Rptr. 35]) and as genuinely civil (e.g., In re Derrick B. (2006) 39 Cal.4th 535, 540 [47 Cal.Rptr.3d 13, 139 P.3d 485]; People v. Sanchez (1985) 170 Cal.App.3d 216, 218 [216 Cal.Rptr. 21]; Welf. & Inst. Code, § 203). In truth, they are hybrid proceedings, and the question whether a wardship proceeding is de facto criminal or civil has no single answer; rather, it depends on the purpose for which the question is asked. Here, faced with a preemption question, we conclude the precise characterization is immaterial because, whether characterized as civil or criminal, wardship proceedings that determine whether a federal criminal statute has been violated are not preempted by section 3231.
+Taking first the view that wardship proceedings are properly characterized as civil, we follow the United States Supreme Court's lead in Tafflin v. Levitt (1990) 493 U.S. 455 [107 L.Ed.2d 887, 110 S.Ct. 792] and find no preemption. In Tafflin, the Supreme Court considered whether state courts have concurrent jurisdiction over civil violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. §§ 1961-1968). Civil RICO is an unusual statute, in that a civil RICO claim may depend upon proof that one of an enumerated list of federal criminal laws has been violated. ( Id., §§ 1961(1), 1962, 1964(c); Cianci v. Superior Court (1985) 40 Cal.3d 903, 909 [221 Cal.Rptr. 575, 710 P.2d 375].) Thus, to adjudicate whether a civil RICO claim has been established, a court or jury may need to determine whether a federal criminal violation has occurred. The Tafflin plaintiffs, arguing for exclusive federal court jurisdiction over such claims, contended permitting a state court to make this predicate determination would violate section 3231's grant of exclusive federal criminal jurisdiction and thus be incompatible with federal interests. The United States Supreme Court found no incompatibility. [C]oncurrent jurisdiction over [18 U.S.C.] § 1964(c) suits, it explained, is clearly not incompatible with § 3231 itself, for civil RICO claims are not `offenses against the laws of the United States,' § 3231, and do not result in the imposition of criminal sanctions—uniform or otherwise. ( Tafflin v. Levitt, supra, 493 U.S. at p. 464.) It went on to conclude that state courts interpreting and applying federal criminal law posed no threat to federal interests, as state courts would be bound by federal precedent and their interpretations would be subject to direct review in the United States Supreme Court. ( Id. at pp. 465-466; see also id. at p. 468 (conc. opn. of White, J.) [opining that federal misapplication of state law under RICO posed greater risk than the reverse].) The Tafflin court asserted its full faith in the ability of state courts to handle the complexities of civil RICO actions ( Tafflin, at p. 465) and declined to denigrate the respect accorded coequal sovereigns by concluding jurisdiction must be withheld ( id. at p. 466). (3) In short, though a civil proceeding such as civil RICO may require adjudication of whether a federal criminal law has been violated, that determination does not of itself convert the civil proceeding into an offense[] subject to the exclusive jurisdictional bar of section 3231. Rather, Tafflin makes clear, a proceeding involves adjudication of an offense only if, at a minimum, it also involves the imposition of criminal sanctions. ( Tafflin v. Levitt, supra, 493 U.S. at p. 464.) Assuming, as we do at present, that a state wardship proceeding involves only civil sanctions and is, like civil RICO, primarily remedial rather than punitive ( Tafflin, at p. 464; see In re Charles C. (1991) 232 Cal.App.3d 952, 955 [284 Cal.Rptr. 4]), the identical reasoning applied here demonstrates that adjudication of federal criminal violations in the course of a state wardship proceeding does not convert those proceedings into offenses and render jurisdiction preempted by section 3231. [1]
+We now consider the contrary characterization, that for purposes of preemption under title 18 United States Code section 3231, a state wardship proceeding under Welfare and Institutions Code section 602 is properly viewed as fundamentally criminal. This characterization changes our reasoning, but not our conclusion that section 3231 does not preempt state wardship proceedings. (4) First, it has always been understood that the several states are independent sovereigns possessing inherent police power to criminally punish conduct inimical to the public welfare, even when that same conduct is also prohibited under federal law. [2] The Constitution leaves in the possession of each State `certain exclusive and very important portions of sovereign power.' ( Heath v. Alabama (1985) 474 U.S. 82, 93 [88 L.Ed.2d 387, 106 S.Ct. 433], quoting Hamilton, The Federalist No. 9 (Cooke ed. 1961) p. 55.) Foremost among the prerogatives of sovereignty is the power to create and enforce a criminal code. ( Heath, at p. 93.) This understanding is at the root of the dual sovereignty exception to the United States Constitution's double jeopardy clause, which recognizes that because individual states and the United States are two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory, each may punish the same act without offending double jeopardy principles. ( United States v. Lanza (1922) 260 U.S. 377, 382 [67 L.Ed. 314, 43 S.Ct. 141].) [3] Thus, Congress may pass a law barring a particular act and imposing a specific punishment, and a state Legislature may pass a state law barring the same act and imposing a different specific punishment, as well as vesting jurisdiction over violations of the state law in its state courts, without encroaching upon the exclusive jurisdiction of the federal courts to adjudicate violations of the federal law and impose the federal punishment. [4] (5) Section 3231 embraces these settled principles. It provides in its second sentence: Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof. (Italics added.) Thus, while the section grants federal courts exclusive jurisdiction over the prosecution of federal offenses, it does not do so over the punishment of acts criminalized by federal law; to the extent state law also establishes sanctions for those acts, state courts retain jurisdiction under their own state laws to hear cases and impose punishment. (See In re Dixon (1953) 41 Cal.2d 756, 764 [264 P.2d 513].) [5] Second, whether a state Legislature exercises its sovereign power to impose independent state criminal punishment for an act by writing its own statute prohibiting it, or by writing a statute incorporating an existing federal criminal prohibition, is immaterial. The distinction is a purely formal one. A state or territory that elects to incorporate portions of federal criminal law into its own criminal code may establish state jurisdiction to try violations as state crimes without offending section 3231. ( U.S. v. Lee (9th Cir. 2006) 472 F.3d 638, 642-643; cf. People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1446 [7 Cal.Rptr.3d 226] [acknowledging that while a state cannot directly enforce federal criminal law, it can reach conduct subject to the federal criminal law by incorporating the conduct into the state law].) [6] (6) This is, in essence, what Welfare and Institutions Code section 602 does. It incorporates by reference federal criminal law, rendering it a basis for the imposition of independent state sanctions, and grants state courts authority to adjudicate such matters. It recognizes the independent state interest in rehabilitating juveniles within this state who are unable to conform their conduct to the requirements of the law—whether that law be local ordinance, state statute, or federal enactment. [7] Section 3231 does not deprive state courts of jurisdiction granted under their own state laws to impose independent state sanctions. Jose C. objects that under this interpretation of section 3231, states may augment federal criminal statutes in any way they please, adding on various civil or criminal piggyback remedies or sanctions that might conflict with federal dictates. But whether Congress has preempted state court jurisdiction is not to be confused with whether it has preempted state legislative action. The former involves only the question whether a state court has the power to entertain a particular cause; the latter involves the further question whether a state may enact substantive legislation governing the subject matter of the particular cause. (See Houston v. Moore, supra, 18 U.S. at pp. 24-25 [drawing the identical distinction in the course of concluding that state regulation, but not state jurisdiction, was preempted].) Section 3231, as interpreted in Tafflin v. Levitt, supra, 493 U.S. 455, does not preempt jurisdiction over a proceeding that entails adjudication of the elements of an underlying federal criminal statute. Whether it preempts the substantive state enactment imposing an additional civil (or criminal) remedy—here, the authorization of state juvenile sanctions upon a finding a federal crime has been committed—is a discrete question we deal with separately below. (See pt. II.B., post. ) Jose C. also relies on two sister-state decisions that have addressed this issue and concluded section 3231 does in fact preempt state court jurisdiction. In State v. Tidwell (1982) 32 Wn.App. 971 [651 P.2d 228], a juvenile was convicted in state juvenile court of violating title 18 United States Code section 241, a federal civil rights statute, after burning a cross on an African-American family's lawn. The Washington Court of Appeals concluded the state court lacked jurisdiction, even in a juvenile proceeding, to determine whether someone had violated federal law. It reasoned that because section 3231 granted federal courts exclusive jurisdiction over federal offenses, it preempted the Washington statute granting state juvenile courts jurisdiction over violations of federal law. Violations of title 18 United States Code section 241 were offenses only against the federal sovereign and could not be punished by the state. Instead, the state court could consider only a state criminal trespass charge. ( Tidwell, at pp. 230-232.) In Matter of Welfare of J.J.T. (Minn.Ct.App. 1997) 559 N.W.2d 714, 715-716, the Minnesota Court of Appeals followed Tidwell and without any independent reasoning concluded a state court could not declare a juvenile a delinquent based on a petition alleging federal criminal violations. State v. Tidwell, supra, 651 P.2d 228, predates Tafflin v. Levitt 's determination that state courts are competent to decide whether a federal criminal law has been violated, section 3231 notwithstanding, if the proceeding is not itself a criminal prosecution. ( Tafflin v. Levitt, supra, 493 U.S. at pp. 464-466.) It also fails to consider whether the Washington Legislature had made, or could make, offenses against federal sovereignty into matters of independent state concern by incorporating federal law into its state juvenile delinquency scheme. Accordingly, we do not find it persuasive. (7) In sum, whether characterized as civil or criminal, wardship proceedings that entail adjudication of whether a federal criminal statute has been violated are not expressly preempted by section 3231. [8]",jurisdiction
+722,2230023,1,5,"The Bank alleged in its petition that [b]ased on the written account agreement, both defendants are jointly and severally liable to plaintiff for the account overdrafts. An overdraft occurs when the bank pays from its funds a check drawn on it by a depositor who does not have sufficient funds on deposit to pay the check. Video Trax, Inc. v. NationsBank, N.A., 33 F.Supp.2d 1041, 1045 n. 3 (S.D.Fla.1998), aff'd per curiam, 205 F.3d 1358 (11th Cir.2000); see also Black's Law Dictionary 1136 (8th ed.2004) (defining overdraft as [a] withdrawal of money from a bank in excess of the balance on deposit). It is undisputed that there were overdrafts in the Winfield Implement checking account that resulted in a negative account balance. However, when the cash proceeds from Steele's and Hassenfritz's promissory notes were applied to the account, the account balance went from a negative figure to a positive one. As a result, the account overdrafts—the sole subject of the Bank's petition—no longer existed at the time the petition was filed. The defendants correctly argued in their motion for summary judgment that [t]he overdrafts complained of in the petition have been fully satisfied and paid by virtue of the promissory notes executed by Jerry Steele and James Hassenfritz. Steele has fully paid his promissory note. Steele has no liability for the Hassenfritz note which remains in default. Plaintiff's only remedy should be against Hassenfritz on the Hassenfritz note. In their application for further review, the defendants also correctly argue that [t]his was not just a replacement of one piece of paper for another representing a debt. Rather, once the proceeds of the promissory notes were deposited into the Winfield Implement checking account, [t]here was no longer a shortage upon which personal liability could occur under the language of the checking account agreement. The Bank relies heavily on Orcutt v. Hanson, 163 N.W.2d 914 (Iowa 1969). The issue in that case was whether the execution and acceptance of a promissory note was full and complete settlement of an open account. Orcutt, 163 N.W.2d at 915-16. In his affidavit, the defendant stated that the note was given by him and accepted by the plaintiff as a full and complete settlement of the account. Id. at 916. This statement was enough to convince this court that a genuine issue of material fact existed as to whether the execution and acceptance of the note was intended as a full and complete settlement of the open account or only a conditional payment as the plaintiff contended. Id. at 916-17. The court stated the general rule that a promissory note given by a debtor for a precedent debt will not be held to extinguish the debt in the absence of an agreement to that effect. The mere promise in writing to pay cannot of itself be regarded as an effective payment.... Id. at 917 (emphasis added) (citations omitted). Here, there was more than a mere promise in writing to pay. Id. The proceeds of the promissory notes were applied to the checking account shortage in a manner described by the Bank as a customer deposit, thereby completely eliminating the overdrafts and shortage. See 60 Am. Jur.2d Payment § 51, at 745 (2003) (If by agreement a note is taken in absolute payment of a debt, the debt is extinguished whether or [not] the note is paid, leaving the creditor's remedy on the note. (Footnotes omitted.)).",analysis
+723,2599733,1,3,"{5} Defendant asserts that no rational jury could have found each element of the crime to be established beyond a reasonable doubt, and in particular that the website belonged to someone else. State v. Garcia, 114 N.M. 269, 273-74, 837 P.2d 862, 866-67 (1992) (discussing the substantial evidence standard of review). Accordingly, we inquire whether substantial evidence establishes that Collett, and not Defendant, owned the website. To make this determination, however, we must first address ownership in the unfamiliar context of the internet. That, in turn, is a question of law which we review de novo. Hasse Contracting Co. v. KBK Fin., Inc., 1999-NMSC-023, ¶ 9, 127 N.M. 316, 980 P.2d 641. Thus, to answer the question presented on certiorari, we first address ownership in the website context, then turn to the evidence to determine whether someone other than Defendant owned the website. Ownership of the Website {6} Because of the internet's technical nature, we take a moment to provide some general background information on this unique and wholly new medium of worldwide human communication. Reno v. ACLU, 521 U.S. 844, 850, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (quoted authority omitted). As noted by our Court of Appeals in Sublett v. Wallin, [t]he internet is `an international network of interconnected computers' that allows users to access a massive amount of information by connecting to a host computer. 2004-NMCA-089, ¶ 24, 136 N.M. 102, 94 P.3d 845 (quoting Reno, 521 U.S. at 849-50, 117 S.Ct. 2329). A website is [a] set of interconnected webpages, usually including a homepage, generally located on the same server, and prepared and maintained as a collection of information by a person, group, or organization. The American Heritage Dictionary of the English Language 1949 (4th ed.2000) [hereinafter American Heritage ]; see also Sublett, 2004-NMCA-089, ¶ 24, 136 N.M. 102, 94 P.3d 845 (stating that [a] `website' consists of any number of web pages with a unique `address' that allows users to locate it (quoted authority omitted)). Thus, a web page is an integral part of a website. A web page is further defined as [a] document on the World Wide Web, consisting of an HTML file and any related files for scripts and graphics, and often hyperlinked to other documents on the Web. American Heritage, supra, at 1949. {7} The Court of Appeals held in this appeal that the jury had sufficient evidence to find that Defendant did not own the website, and therefore, had obtained property belonging to someone else by fraud. Kirby, No. 24,845, slip op. at 2-3. Explaining its decision, the Court of Appeals emphasized that because a website includes the web pages, and Defendant never paid Collett for the web pages as contractually agreed, ownership remained with someone other than Defendant. Id. We agree with that reasoning as far as it goes, but determine that further analysis may assist the bar and the public in better understanding this complex and novel area of the law. See Sublett, 2004-NMCA-089, ¶ 24, 136 N.M. 102, 94 P.3d 845 (noting how few opportunities the courts of this state have had to address the internet in a legal context). {8} We first turn our attention to the legal document governing the agreement between Collett and Defendant, the Website Design Contract. According to that contract, Collett was engaged for the specific project of developing and/or improving a World Wide Website to be installed on the client's web space on a web hosting service's computer. Thus, the end product of Collett's work was the website, and the client, Defendant, owned the web space. Defendant was to select a web hosting service which would allow Collett access to the website. Collett was to develop the website from content supplied by Defendant. {9} While the contract did not explicitly state who owned the website, it did specify ownership of the copyright to the web pages. Copyright to the finished assembled work of web pages was owned by Collett, and upon final payment Defendant would be assigned rights to use as a website the design, graphics, and text contained in the finished assembled website. Collett reserved the right to remove web pages from the Internet until final payment was made. Thus, the contract makes clear that Collett was, and would remain, the owner of the copyright to the web pages making up the website. Upon payment, Defendant would receive a kind of license to use the website. {10} This contract is consistent with general copyright principles, under which copyright ownership likely would have rested with Collett even if no contractual agreement had existed. See Rinaldo Del Gallo, III, Who Owns the Web Site?: The Ultimate Question When a Hiring Party Has a Falling-Out with the Web Site Designer, 16 J. Marshall J. Computer & Info. L. 857, 895 (1998) (Copyright [of a website] vests initially in the author. Therefore, absent a subsequent agreement to the contrary, the hiring party has no ownership right in the copyright.). The United States Copyright Act discusses ownership of authored works, such as web pages. Under that Act, copyright ownership of a work vests initially in the author or authors of the work. 17 U.S.C. § 201(a) (2000); see also Attig v. DRG, Inc., No. Civ. A. 04-CV-3740, 2005 WL 730681, at  (E.D.Pa. Mar.30, 2005) (discussing how the general rule under the Copyright Act is that ownership of the copyright to a website rests with the web designer as the author of the work); Kantemirov v. Goldine, No. C05-01362 HRL, 2005 WL 1593533, at  (N.D.Cal. June 29, 2005) (Neither party has cited, and the court has not found, authority holding that website design . . . fall[s] within the subject matter of the Copyright Act. Nonetheless, . . . [g]iven the flexible definition of works falling with [sic] the scope of the Copyright Act, . . . website design and layout . . . falls within the general subject matter of the . . . Act.). {11} Thus, the creator of the work owns the copyright to that work. [1] This is true even if the work created by the author is an expression of another's view of the ultimate work product. Cf. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (stating that the originality requirement necessary to copyright material merely requires a minimal degree of creativity). Here, Collett was the author of the web pages, and accordingly, he owned the copyright to those web pages. {12} Defendant does not dispute this proposition. In his brief to this Court, Defendant concedes that the website contained copyright material that belonged to Loren Collett. However, he contends that Collett's ownership of the copyright is separate from ownership of the website. Thus, because the contract only specified ownership of the copyright interest in the web pages and not ownership of the website, Defendant asserts that from the very beginning he and not Collett owned the website. Therefore, no rational jury could have found, as an essential element of the crime charged, that the web site belonged to someone other than the defendant. See UJI 14-1640. {13} Specifically, Defendant argues that because he owned certain elements that are part of a website and help make it functional, he was the website owner regardless of who owned the copyright to the web pages. Specifically, Defendant purchased a domain name for the website and had contracted with an internet hosting service for storage of that website. This same hosting service was the platform from which the website was to be displayed on the internet. Defendant, as the owner of the domain name and storage service, also owned the password that enabled him to admit or exclude other people from the website. As we have seen, Defendant excluded Collett from the website after Collett, seeking payment for his work, threatened to pull the web pages from the site. Defendant argues that his control of the password, ownership of the domain name, and contract with an internet hosting service provider gave him ownership of the web site. {14} While a domain name, service provider, and password are all necessary components of a website, none of them rises to the importance of the web pages that provide content to the website. A domain name is also referred to as a domain address. 3 Steven D. Imparl, Internet Law: The Complete Guide II-4-1 (2006). A domain address is similar to a street address, in that it is through this domain address that Internet users find one another. Inset Sys., Inc. v. Instruction Set, Inc., 937 F.Supp. 161, 163 (D.Conn.1996). But it is nothing more than an address. 3 Internet Law, supra, at II-4-1. If a company owned a domain name or address but had no web pages to display, then upon the address being typed into a computer, only a blank page would appear. A blank web page is of little use to any business enterprise. It is the information to be displayed on that web page that creates substance and value. Similarly, the service provider only stores that information on the web pages and relays that communication to others. See Reno, 521 U.S. at 850, 117 S.Ct. 2329. Having a service provider meant little to Defendant if the web pages were blank. Thus, the predominant part of a website is clearly the web page that gives it life. In fact, the two terms, website and web page, are often used interchangeably. See id. at 852-53, 117 S.Ct. 2329 (noting that users of the Web seek to locate sites but that what is found when the site is located are web pages containing the information sought by the `surfer'). {15} Not surprisingly, we have not been referred to, nor have we located, any case law that tries to distinguish between ownership of a website and ownership of the web pages that comprise the website. The few cases of any help at all, discussed below, involve disputes between web designers and the persons hiring the web designers, not dissimilar from the dispute between Collett and Defendant. Those opinions apply general copyright and contract principles to determine ownership of the copyright to the web pages, and then appear to assume, without much discussion, that ownership of the website follows from ownership of the copyright, unless otherwise agreed. {16} The cases begin with general principles, previously discussed, that copyright ownership vests initially in the author or authors of the work. 17 U.S.C. § 201(a). `As a general rule, the author is the party who actually creates the work, that is, the person who translates the idea into a fixed, tangible expression entitled to copyright protection.' Janes v. Watson, No. SA-05-CA-0473-XR, 2006 WL 2322820, at  (W.D.Tex. Aug. 2, 2006) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)). {17} In Janes, a fight between business partners, the partner who created the website for use by the partnership subsequently denied the partnership access to the website, claiming it as his own. Id. at -3. No contractual agreement specified the relationship between the parties. Id. at . The partner claimed that he alone had developed the website outside the scope of his employment, he had placed his name as the copyright owner on advertising materials for the website, id. at -12, and thus, he had only permitted the partnership to use the website as an implied licensee, id. at . The partnership disagreed, claiming, as alternative positions under the federal Copyright Act, that the two were either joint authors of the website or the website was a Work for Hire developed for the partnership within the scope of the partner's employment, and thus, the sole property of the partnership. Id. at . Summary judgment was denied due to outstanding issues of material fact. Id. at . Significantly for our purposes here, neither the court nor the parties suggested that ownership of the website was in any way distinguishable from ownership of its contents, including the copyrights. To the contrary, the partnership expressed the view that they were one and the same; namely, that it was the sole or joint author of the website, and therefore the sole or joint owner of the copyrights in, to and under the . . . website. Id. at . {18} A similar case is Holtzbrinck Publishing Holdings, L.P. v. Vyne Communications, Inc., in which an independent website designer claimed website ownership even after receiving partial payment. No. 97 CIV. 1082(KTD), 2000 WL 502860, at -3 (S.D.N.Y. Apr. 26, 2000). The court's discussion began with a broad vision: As a result of the rapid growth of the Internet, many companies are creating websites to benefit their businesses, and are hiring website designers to construct the sites for them. Some of these arrangements, however, are made without either a copyright ownership or licensing clause. The resulting problem is evidenced by this case, where a relationship falters and both parties fight over the ownership of the website, and the right to use the files comprising the site. Because of the sparse case law on the subject, this case presents novel issues in the area of copyright law and its application to a website. Id. at . {19} Applying general principles, the court indicated that the copyright remained in the website designer, unless the hiring party could prove a conveyance in writing or that the designer was acting as the hiring party's employee for hire or as a joint author. Id. at . In the absence of such proof, the hiring party would have an implied license to use the website, but not ownership. Id. at . Significant to our own inquiry, the court used ownership of the website and the contents of the website interchangeably, stating: There is no dispute that [the designer] created the custom-written software for the [hiring party] Website, and that [the designer] is in the first instance the owner of the copyright in the program code. Therefore, to the extent that [the designer] owned any preliminary copyright in the Website, the copyright was never transferred to [the hiring party]. . . . The record isn't developed enough, however, to indicate whether the parties intended that [the designer's] work on the [] Website be considered a Work for Hire, or whether the parties intended that their joint contributions to the Website be considered a Joint Work. Thus, I cannot conclude that [the designer] is the owner of the copyright, even though it is clear that no transfer of ownership occurred. Id. at  (citation omitted). {20} Scholars addressing this issue come to the same conclusion that, absent a governing agreement, ownership of the website rests with ownership of the copyright. See Del Gallo, supra, at 858 (explaining that determination of who owns a website depends on who owns the bundle of sticks represented by the copyright and whether any of the sticks have been given away); Geoffrey George Gussis, Website Development Agreements: A Guide to Planning and Drafting, 76 Wash. U.L.Q. 721, 741 (1998) ([T]he United States Copyright Act vests ownership, without an agreement to the contrary, in the author of the work. (quoted authority omitted)); Joshua H. Warmund, Development Agreements are Vital to Prevent Later Disputes Over Proprietary Interests in Web Sites, N.Y. St. B.J., Nov.-Dec.2002, at 34, 36 ([P]roprietary interest in a web site vests through copyright transfer.). Thus, a website designer that is the initial sole author is also the owner. Del Gallo, supra, at 871. As such, the web designer enjoys all the sticks in [the] bundle of rights that are his to enjoy as the sole owner, unless any of those sticks have been transferred or given away. Id. {21} Applying these general principles to the case before us, the contract between Defendant and Collett clearly recognized Collett's legal ownership of the copyright to the web pages. Payment was to be the pivotal point in their legal relationship, and even then Defendant was only to receive a license to use those pages. The contract never transferred any interest in the web page design or ownership of the website to Defendant. As the owner of the copyright, Collett was the owner of the website, and any change was conditioned upon payment. Sufficiency of the Evidence Presented at Trial {22} At trial the jury was presented with evidence of Collett's ownership of the web pages and website. The Website Design Contract with its provisions regarding Collett's ownership of the copyright to the web pages was in evidence. There was testimony that under the contract Collett owned the computer programming which makes the web pages viewable, and that Collett owned the files making the web pages. Moreover, the prosecutor and defense counsel both referred to the website, not just the web pages, as Collett's. Then, Defendant changed the password, locking out Collett from the website and access to his copyrighted web pages. Based on this evidence, a rational jury could have concluded that Collett, not Defendant, owned the website and its contents, and that as set forth in the jury instructions, Defendant committed fraud by taking property that belonged to someone other than the defendant.",standard of review
+724,2453230,1,2,"¶ 8 Hardee argues that constitutional due process requires the Department to justify its revocation of her home child care license by clear and convincing evidence, that the review judge failed to give proper deference to the ALJ's factual findings, and that she is entitled to attorney fees under the EAJA. We disagree. We hold that, at an administrative hearing to revoke a home child care license, the requirement that the Department justify its revocation by a preponderance of the evidence satisfies due process. We expressly overrule Ongom. We further hold that the review judge gave appropriate deference to the ALJ's findings of fact, and that the EAJA does not entitle Hardee to attorney fees.
+¶ 9 The Administrative Procedure Act (APA) governs judicial review of administrative agency decisions. RCW 34.05.510; see also Tapper v. Emp't Sec. Dep't, 122 Wash.2d 397, 402, 858 P.2d 494 (1993). The party challenging an agency decision has the burden of demonstrating the invalidity of the agency's action. RCW 34.05.570(1); see also Thurston County v. W. Wash. Growth Mgmt. Hr'gs Bd., 164 Wash.2d 329, 341, 190 P.3d 38 (2008). The APA provides nine bases on which to challenge an agency decision, two of which involve instances where [t]he order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied and where [t]he order is not supported by evidence that is substantial when viewed in light of the whole record before the court. RCW 34.05.570(3)(a), (e); see also Thurston County, 164 Wash.2d at 341, 190 P.3d 38. When reviewing an administrative agency decision, we stand in the same position as the superior court. Thurston County, 164 Wash.2d at 341, 190 P.3d 38. Whether an agency order, or the statute supporting the order, violates constitutional provisions is a question of law and [w]e review issues of law de novo. Id.; Amunrud v. Bd. of Appeals, 158 Wash.2d 208, 215, 143 P.3d 571 (2006). An agency order is supported by substantial evidence if there is `a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.' Thurston County, 164 Wash.2d at 341, 190 P.3d 38 (internal quotation marks omitted) (quoting City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 136 Wash.2d 38, 46, 959 P.2d 1091 (1998)).
+¶ 10 The statute governing Hardee's administrative hearing requires a preponderance of the evidence to uphold the Department's action. The statutory authority governing the Department's licensing procedures may be found in chapter 43.215 RCW. It provides that, at an administrative hearing, the ALJ shall uphold the Department's decision to revoke a home child care license if a preponderance of the evidence supports the decision. RCW 43.215.300(2). Hardee challenged the Department's revocation decision at an administrative hearing. According to the legislature, the preponderance of the evidence standard was the proper evidentiary burden to place on the Department. ¶ 11 Hardee argues that constitutional due process requires a clear and convincing evidentiary standard. [7] The function of a standard of proof ... is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.' Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)). The significance of the private interest at stake directly corresponds to the rigor of the burden placed on the State. Rights that touch on fundamental areas of human concern require the State to justify its action by clear and convincing evidence. See Addington, 441 U.S. at 432-33, 99 S.Ct. 1804 (holding that due process requires a clear and convincing evidentiary standard at a proceeding to involuntarily commit an individual to a state mental hospital); Santosky v. Kramer, 455 U.S. 745, 768, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that due process requires a clear and convincing evidentiary standard at a proceeding to terminate parental rights). Rights of lesser significance do not require the State to satisfy a burden beyond the preponderance of the evidence standard. See Rivera v. Minnich, 483 U.S. 574, 575, 107 S.Ct. 3001, 97 L.Ed.2d 473 (1987) (holding that, in an action to compel child support, due process does not require a burden beyond a preponderance of the evidence standard to prove paternity); Vance v. Terrazas, 444 U.S. 252, 266, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980) (holding that due process does not require a burden beyond a preponderance of the evidence standard at an expatriation proceeding); see also Steadman v. Sec. & Exch. Comm'n, 450 U.S. 91, 104, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981) (noting that constitutional due process does not prohibit Congress from adopting the preponderance of the evidence standard to determine whether an individual violated antifraud provisions of federal securities law). ¶ 12 A professional license is a property interest for which revocation requires due process. Haley v. Med. Disciplinary Bd., 117 Wash.2d 720, 732, 818 P.2d 1062 (1991); see also Bang D. Nguyen v. Dep't of Health Med. Quality Assurance Comm'n, 144 Wash.2d 516, 518, 29 P.3d 689 (2001) (holding that a medical license constitutes a property interest and that due process requires clear and convincing evidence before revocation). However, not all occupations require an identical personal investment and not all state-granted credentials constitute a professional license. ¶ 13 In light of our decisions in Nguyen and Ongom, the Court of Appeals has struggled to determine which evidentiary standard should apply to administrative hearings that affect an individual's ability to engage in her occupation of choice. Compare Eidson v. Dep't of Licensing, 108 Wash.App. 712, 32 P.3d 1039 (2001) (holding that the preponderance standard applies to a real estate agent), and Kabbae v. Dep't of Soc. & Health Servs., 144 Wash.App. 432, 192 P.3d 903 (2008) (holding that the preponderance standard applies to an adult-home caregiver), and Brunson v. Pierce County, 149 Wash.App. 855, 205 P.3d 963 (2009) (holding that the preponderance standard applies to exotic dancers), and Kraft v. Dep't of Soc. & Health Servs., 145 Wash.App. 708, 187 P.3d 798 (2008) (holding that the preponderance standard applies to a program manager at an adult home), and Islam v. Dep't of Early Learning, 157 Wash.App. 600, 238 P.3d 74 (2010) (holding that the preponderance standard applies to a home child care provider), with Chandler v. Office of Ins. Comm'r, 141 Wash. App. 639, 173 P.3d 275 (2007) (holding that the clear and convincing standard applies to an insurance agent), and Nims v. Wash. Bd. of Registration, 113 Wash.App. 499, 53 P.3d 52 (2002) (holding that the clear and convincing standard applies to a licensed engineer).
+¶ 14 To determine whether the legislative standards for an adjudicative proceeding satisfy constitutional due process requirements, we consider three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Post v. City of Tacoma, 167 Wash.2d 300, 313, 217 P.3d 1179 (2009) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Applying the Mathews factors, the preponderance of the evidence standard promulgated by the legislature satisfies due process at an administrative proceeding to revoke a home child care license.
+¶ 15 Providing care to children is an enormous responsibility and an occupation that merits great societal respect. However, a license for a home child care facility is not a personal interest that compels a standard of proof beyond a preponderance of the evidence. A license to operate a home child care business adheres to the facility and not the individual provider. WAC 170-296-0020 (defining family home child care as a facility licensed to provide direct care to children). Unlike a professional license, the Department can revoke a home child care license for the misconduct of a resident other than the provider. WAC 170-296-0210, -0215. A provider can obtain a license for a home by completing a mere 20 hours of state approved training. WAC 170-296-1410(5)(d). Further, an individual who wishes to care for children but who lacks the requisite qualifications to obtain a license, can still potentially work in the field as a child care staff member. WAC 170-296-1410(6) (defining the less stringent requirements for child care staff). Someone who loses her license but continues to feel a vocational calling to provide child care can still work in the field under the supervision of another licensed child care provider.
+¶ 16 It is unlikely that requiring the additional procedural safeguard of a different evidentiary standard is necessary to curtail erroneous deprivations of home child care licenses. Adjudicative proceedings already exist that afford significant procedural safeguards to a home child care provider. At an administrative hearing, a home child care provider benefits from an unbiased tribunal, notice of the proposed action and the grounds asserted for it, an opportunity to present reasons why the proposed action should not be taken, the right to call witnesses, the right to know the evidence against her, the right to have a decision based only on the evidence presented, the right to counsel, the making of a record of the proceedings, public attendance of the proceedings, and judicial review of the proceedings. See generally RCW 34.05.410-.598 (establishing applicable procedures for administrative proceedings and judicial review of such proceedings); see also Harry J. Friendly, Some Kind of Hearing, 123 U. Pa. L.Rev. 1267, 1279-95 (1975) (discussing the elements of a fair hearing). While additional procedural safeguards will always decrease the likelihood of revocation, that fact alone does not justify their adoption. Rather, the current procedures must suffer from inadequacies that make erroneous deprivations readily foreseeable. The current procedural protections in place sufficiently protect against erroneous deprivations.
+¶ 17 The State's interest in protecting children from the threat of physical and sexual abuse is paramount. The legislature expressly states that [t]o safeguard and promote the health, safety, and well-being of children receiving child care and early learning assistance ... is paramount over the right of any person to provide care. RCW 43.215.005(4)(c). Though our inquiry concerning the State's interests does not defer to legislative proclamations, statutory aims and objectives serve as strong independent evidence of a public good's value. The State holds the highest interest in the protection of children. In fulfilling its obligation to protect children, the State must be able to regulate the providers and facilities to which we entrust their care. A requirement that the Department perfect its case to a quasi-criminal standard of proof could endanger children and ignores the reality and the responsibility of the State to protect its most innocent and vulnerable residents.
+¶ 18 Hardee argues that our decisions in Nguyen and Ongom compel a different result. Nguyen is unlike the present case and does not stand for the general proposition that the State's revocation of any occupational credential requires clear and convincing evidence. [9] Nguyen specifically addresses the unique context of a medical doctor's property interest in his license to practice medicine. Nguyen, 144 Wash.2d at 522, 29 P.3d 689 (At its heart this case concerns the process due an accused physician by the state before it may deprive him his interest in property and liberty represented by his professional license.). ¶ 19 Disciplinary proceedings against physicians affect a greater property interest than that of a home child care provider despite the great respect we owe the latter. Physicians hold a unique role in our society. Historically, they belonged to one of the three paradigmatic professions: law, medicine, and pastoral ministry. See Samuel Haber, The Quest for Authority and Honor in the American Professions, 1750-1900, at 4-5 (1991); see also Nathan O. Hatch, Introduction: The Professions in a Democratic Culture, in The Professions in American History 3 (Nathan O. Hatch ed., 1988); William M. Sullivan, Work and Integrity: The Crisis and Promise of Professionalism In America 2 (1995). Becoming a licensed physician requires a four year undergraduate degree, a four year postgraduate degree, and additional years of residency training. Physicians must pass multiple tests and examinations before licensure and maintain continuing educational requirements thereafter. A physician's license is not limited to a particular location. Once licensed, a physician may engage in his or her craft anywhere within the jurisdiction that issued the license. The physician holds the medical license—not the facility in which the physician administers care. Because the license is held by the individual, a disciplinary board cannot predicate a revocation of the license on the misconduct of other individuals. Upon revocation of the license, a physician can no longer engage in the practice of medicine. The physician cannot administer medical care under the guise of being a lesser type of medical provider. The unique education, investment, and personal attachment of a physician's license indicates that the physician holds a greater property interest in the license than that of a home child care provider in the provider's state-granted credential. Our decision in Nguyen is distinct from the facts presented by Hardee's case.
+¶ 20 Ongom presented a more difficult case. The license at issue in Ongom lacked many of the characteristics traditionally associated with the historical professions and the licensee had a personal interest in her certification lesser than that held by a physician in his or her medical license. See Ongom, 159 Wash.2d at 157-58, 148 P.3d 1029 (Owens, J., dissenting). Despite Ongom's more limited property interest, we held that her disciplinary proceedings required application of the clear and convincing standard. Id. at 142, 148 P.3d 1029. We based this holding on the premise that Ongom's case was indistinguishable from Nguyen. Id. (In sum, this case is on all fours with Nguyen.... ). ¶ 21 To arrive at this holding, we applied the generalized considerations set forth in Mathews. Id. at 138, 148 P.3d 1029. Applying the first Mathews factor, we rejected the argument that we could distinguish Nguyen on the basis of the personal interest at stake. Id. We said: Although undoubtedly a medical license is much more difficult to obtain than a registration to practice as a nursing assistant... [w]e cannot say Ms. Ongom's interest in earning a living as a nursing assistant is any less valuable to her than Dr. Nguyen's interest in pursuing his career as a medical doctor. Id. ¶ 22 Looking to the second Mathews factor, we rejected the argument that we could distinguish Nguyen on the basis of the additional procedural protections afforded to Ongom under the APA. Id. at 140, 148 P.3d 1029. We said that [w]hile there are certainly some differences in the facts and procedures at issue ... these differences do not justify a distinction in the eyes of the law and... the potential risk of error is not appreciably different. Id. ¶ 23 Lastly, in light of the third Mathews factor, we rejected the argument that we could distinguish Nguyen on the basis of the nature of the governmental interest. Id. at 141-42, 148 P.3d 1029. Determining that the inquiry is not about the ultimate governmental interest which justifies the licensing scheme in the first place we said, `[T]his requirement relates to practical and financial burdens to be imposed upon the government were it to adopt a possible substitute procedure for the one currently employed.' Id. at 141, 148 P.3d 1029 (quoting Nguyen, 144 Wash.2d at 532, 29 P.3d 689). Moreover, we concluded that the clear and convincing standard promoted the government's primary interest in accurate proceedings. Id. at 142, 148 P.3d 1029. ¶ 24 Upon careful reconsideration of its reasoning and effects, we now overrule Ongom. [O]verruling prior precedent should not be taken lightly. Lunsford v. Saberhagen Holdings, Inc., 166 Wash.2d 264, 278, 208 P.3d 1092 (2009). We will not overrule a precedent unless there is `a clear showing that an established rule is incorrect and harmful.' Id. at 280, 208 P.3d 1092 (internal quotation marks omitted) (quoting Riehl v. Foodmaker, Inc., 152 Wash.2d 138, 147, 94 P.3d 930 (2004)). Ongom is both incorrect and harmful precedent; therefore, it is overruled. ¶ 25 Ongom is incorrect because of its flawed application of the Mathews factors. First, Ongom confused the interest at stake in a disciplinary proceeding with Ongom's subjective desire to engage in her occupation. For purposes of the Mathews analysis, the personal interest at stake in a proceeding is the property interest (i.e., the license) and not one's subjective desire to perform work in the job of one's choosing. To determine the value of this property interest, a court must look to objective measures of investment (e.g., time, money, education, etc.) rather engaging in the hopeless task of weighing the subjective value each individual places on his or her chosen occupation. See Mathews, 424 U.S. at 340-43, 96 S.Ct. 893 (applying objective measures to distinguish the value of the welfare benefits at stake in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), from the value of the disability benefits at stake in Mathews and holding that only the former requires an evidentiary hearing before adverse administrative action). ¶ 26 A license is an endorsement that lends credibility and esteem to an individual. It is a benefit granted by the State and it encourages third parties to believe that the State sanctions and positively evaluates the work of the license holder. In the present case, the Department's revocation of Hardee's license is not an absolute prohibition that terminates her right to provide child care of any sort. Rather, the revocation is a withdrawal of the State's endorsement and certificate of approval. ¶ 27 Ongom incorrectly applied the first Mathews factor when it mistakenly focused on Ongom's desire to work as a nurse compared to Nguyen's desire to practice medicine. See Ongom, 159 Wash.2d at 138, 148 P.3d 1029. This is not the proper inquiry. The proper inquiry should focus on objective measures to determine the value of the property interest that the State seeks to take away—i.e., the license. It is therefore relevant to consider the time, expense, and education invested to obtain the license. This is not some sort of elitist value judgment. [10] It is simply one realistic measure of the property interest at stake in an administrative proceeding. ¶ 28 Second, Ongom failed to apply the second Mathews factor. Ongom failed to apply the second Mathews factor because it determined, without explanation, that Ongom 's procedural protections under the APA were sufficiently similar to Nguyen 's. Id. at 140, 148 P.3d 1029. This too is incorrect. The adequacy of procedural protections is context dependent. Compare Mathews, 424 U.S. at 349, 96 S.Ct. 893 (not requiring an evidentiary hearing for revocation of disability benefits), with Goldberg, 397 U.S. at 260-61, 90 S.Ct. 1011 (requiring evidentiary hearing for revocation of welfare benefits). Ongom, however, failed to address the adequacy of the procedural protections afforded to Ongom in her particular context. This inquiry is essential to the second Mathews factor that requires us to evaluate, not only the risk of erroneous deprivation, but also the probable value, if any, of additional or substitute procedural safeguards.... Mathews, 424 U.S. at 335, 96 S.Ct. 893 (emphasis added). ¶ 29 Third, Ongom misapplied the third Mathews factor. Describing the government interest factor, Ongom incorrectly stated that `this requirement relates to practical and financial burdens to be imposed upon the government were it to adopt a possible substitute procedure for the one currently employed.' Ongom, 159 Wash.2d at 141, 148 P.3d 1029 (quoting Nguyen, 144 Wash.2d at 532, 29 P.3d 689). Ongom 's reliance on Nguyen 's dicta is misplaced. Mathews did not limit the government's interest to its interest in maintaining current procedural protections vis-à-vis providing additional procedural protections. While the governmental interest includes the financial and administrative burdens of providing additional procedural protections, its interest is not limited to such considerations. See Mathews, 424 U.S. at 335, 96 S.Ct. 893 (describing the third factor as the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail (emphasis added)). ¶ 30 Because of its misapplication of the Mathews factors, Ongom was incorrect. The decision is also harmful. As the United States Supreme Court noted in Mathews: [T]he Government's interest, and hence that of the public, in conserving scarce fiscal and administrative resources is a factor that must be weighed. At some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost. Id. at 348, 96 S.Ct. 893. Due to the scarcity of resources, a decision that requires the State to direct more time and money towards administrative hearings can ultimately harm the very individuals the administrative proceeding was designed to protect. See id. ([T]he cost of protecting those whom the preliminary administrative process has identified as likely to be found undeserving may in the end come out of the pockets of the deserving since resources available for any particular program of social welfare are not unlimited.). ¶ 31 The present case illustrates the harmful consequences of Ongom 's reasoning. Like other sexual assaults, the sexual abuse of children almost always occurs in private. The perpetrator typically selects the victim on the basis of the child's vulnerability, vulnerability that often includes the child's inability to report the abuse and a lack of physical evidence. This is most aggravated when the victim is a young child or an infant. The circumstances surrounding the crime make it, in most instances, extremely difficult to prove. This is true even for criminal prosecutors supported by experienced detectives and a professional police force. ¶ 32 Despite these inherent evidentiary hurdles, Ongom would compel the Department to use its limited resources to satisfy a quasicriminal standard of proof before revoking its endorsement of a child care facility— even when a preponderance of the evidence indicates that the children in the facility were exposed to potential sexual abuse. This requirement is potentially very harmful and is not constitutionally mandated. ¶ 33 Because it is both incorrect and harmful, Ongom is overruled. We hold that, at an administrative hearing to revoke a home child care license, the statutory requirement that the Department justify its revocation by a preponderance of the evidence satisfies constitutional due process. Our decision in Nguyen does not control because, unlike the present case, it involved an individual's unique property interest in a professional license. Our decision in Ongom is overruled.
+¶ 34 When reviewing the factual findings and conclusions of an ALJ, The reviewing officer shall exercise all the decision-making power that the reviewing officer would have had to decide and enter the final order had the reviewing officer presided over the hearing,.... In reviewing findings of fact by presiding officers, the reviewing officers shall give due regard to the presiding officer's opportunity to observe the witnesses. Tapper, 122 Wash.2d at 404, 858 P.2d 494 (emphasis omitted) (quoting RCW 34.05.464(4)); see also WAC XXX-XX-XXXX (providing the Department's own definition of the review judge's authority). Regardless of whether [i]t would perhaps be more consistent with traditional modes of review for courts to defer to factual findings made by an officer who actually presided over a hearing, the legislature chose otherwise. Tapper, 122 Wash.2d at 405, 858 P.2d 494. [I]t is not our role to substitute our judgment for that of the Legislature. Id. at 406, 858 P.2d 494. The findings of fact relevant on appeal are the reviewing officer's findings of fact—even those that replace the ALJ's. Id. Here, the review judge meticulously reviewed the evidence, as well as the ALJ's factual findings, and appropriately substituted her own findings when warranted. [11] ¶ 35 Hardee argues that the review judge inappropriately replaced the ALJ's factual findings. According to Hardee, allowing the review judge to replace the ALJ's factual findings renders the ALJ superfluous. She urges us to adopt the reasoning in Costanich v. Department of Social & Health Services, 138 Wash.App. 547, 554-56, 156 P.3d 232 (2007), rev'd on other grounds, 164 Wash.2d 925, 194 P.3d 988 (2008). ¶ 36 Hardee's arguments are not persuasive. First, the statute and our case law do not render the ALJ superfluous. Even where the review judge replaces the ALJ's factual findings, the ALJ still plays a crucial role in affording the licensee an opportunity to be heard, providing notice of the evidence against the licensee, and making a record of the proceedings. Second, Costanich is both nonbinding authority and distinguishable. Costanich involved interpretation of an administrative regulation distinct from the statutory provision at issue in the case at bar. See Costanich, 138 Wash.App. at 554-55, 156 P.3d 232. Lastly, the legislature empowered the review judge with the lawful authority to replace the ALJ's factual findings. Even if we agreed with Hardee's reasoning, it is not our role to substitute our judgment for that of the Legislature. Tapper, 122 Wash.2d at 406, 858 P.2d 494. We hold that the review judge gave the ALJ's findings of fact appropriate deference. ¶ 37 Further, we hold that substantial evidence supports the review judge's factual findings. The review judge concluded that the Department proved that Hardee violated the terms of her 2003 safety agreement and 2004 waiver by allowing William to have unsupervised access to a child under her care and that she lacked the personal characteristics an individual needs to provide child care. Substantial evidence supports these conclusions. Parental declarations and testimonial evidence from the hearing supported the review judge's determination that William had unsupervised access to young children in violation of the 2003 safety agreement and subsequent waiver. Although the review judge relied on some hearsay evidence, reliance on hearsay is permissible. RCW 34.05.452(1). ¶ 38 The review judge determined that Hardee lacked the personal characteristics to provide child care. She based this determination on Hardee's poor judgment in allowing William unsupervised access to child care children and Hardee's decision to allow other adults to have access to the children during child care hours. [12] Ample evidence supported these determinations.
+¶ 39 Under the EAJA, [e]xcept as otherwise specifically provided by statute, a court shall award a qualified party that prevails in a judicial review of an agency action fees and other expenses, including reasonable attorneys' fees, unless the court finds that the agency action was substantially justified or that circumstances make an award unjust. RCW 4.84.350(1) (emphasis added). Here, Hardee did not prevail in judicial review of the Department's action and she is not entitled to attorney fees.",analysis
+725,2741340,1,1,"¶4. This Court applies a de novo standard of review when questions of law are to be considered on appeal. Brown v. State, 731 So. 2d 595, 598 (Miss. 1999).",standard of review
+726,2295141,1,2,"As a threshold issue, we consider WASA's argument that the Superior Court did not have jurisdiction to consider Euclid Street's claims because Euclid Street was required by statute to timely appeal the WASA Hearing Officer's decision directly to this court. [2] We conclude that because this case did not arise from a contested case over which this court has exclusive jurisdiction, the complaint was properly filed in Superior Court. The District of Columbia Administrative Procedure Act (APA) provides that [a]ny person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case, is entitled to a judicial review thereof in accordance with this subchapter upon filing in the District of Columbia Court of Appeals a written petition for review. D.C.Code § 2-510(a) (2001) (emphasis added); see also D.C.Code § 2-509 (discussing the procedures for adjudicating a contested case). [3] It is well established that the APA vests this court with exclusive jurisdiction to review an agency's decision regarding a contested case. See, e.g., 2348 Ainger Place Tenants Ass'n, Inc. v. District of Columbia, 982 A.2d 305, 308 (D.C.2009) (Where the District of Columbia Administrative Procedure Act vests exclusive jurisdiction in this court over review of administrative actions, the Superior Court may not maintain concurrent jurisdiction.). Thus, a Superior Court action that constitutes a challenge to a previous agency action . . . would be brought in the wrong court. Id. (quoting Fair Care Found. v. District of Columbia Dep't of Ins. and Sec. Regulation, 716 A.2d 987, 997 (D.C.1998)). Only certain types of administrative proceedings are governed by the procedural requirements of a contested case, however. The APA defines a contested case as a proceeding before the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are required by any law . . . or by constitutional right, to be determined after a hearing before the Mayor or before an agency. D.C.Code § 2-502(8). We have held that the phrase contested case refers to a trial-type hearing that is adjudicatory and is concerned basically with weighing particular information and arriving at a decision directed at the rights of specific parties. Dupont Circle Citizen's Ass'n v. District of Columbia Zoning Comm'n, 343 A.2d 296, 299 (D.C.1975) (en banc); accord Timus v. District of Columbia Dep't of Human Rights, 633 A.2d 751, 756 (D.C.1993) (en banc). In contrast, if an agency is acting in a legislative capacity, making policy decisions directed toward the general public, then administrative proceedings are not governed by the contested case requirements of the APA. Dupont Circle Citizen's Ass'n, 343 A.2d at 299. Although we have recognize[d] . . . that the distinction between legislative and adjudicative proceedings is not always precise, id. at 300, we have adopted the factual distinction that: Adjudicative facts are the facts about the parties and their activities, businesses, and properties. Adjudicative facts usually answer the questions of who did what, where, when, how, why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury in a jury case. Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion. Id. (quoting 1 K. Davis, Administrative Law § 7.02 at 413 (1958)); accord Citizens Ass'n of Georgetown, Inc. v. Washington, 291 A.2d 699, 704 & n. 14 (D.C.1972). The procedures that allow WASA's customers to contest any water bill, 21 DCMR § 400.1, in an administrative proceeding would, in most instances, involve a determination of adjudicative facts. See generally King v. District of Columbia Water and Sewer Auth., 803 A.2d 966 (D.C.2002) (considering an appeal from a WASA Hearing Officer's order dismissing customer protest of four water bills). WASA's regulations specifically provide that contest[ed] bills may be challenged at a hearing, the purpose of which is to provide the petitioner with an opportunity to appeal . . . [t]he validity of any water. . . service charge. 21 DCMR § 410.1(a). A Hearing Officer has broad powers to preside over a hearing and may issue subpoenas, take testimony, grant requests for discovery, hold settlement conferences, request additional investigative reports by WASA, and rule on motions. 21 DCMR § 414.4. WASA is also vested with the authority to investigate a challenged bill by verifying computations and meter readings and conducting an on-site inspection of the premises and the water meter, among other powers. 21 DCMR § 403.2. Here, however, the petition that Euclid Street filed with WASA was not the usual challenge to the particulars of a water bill, and the proceeding before the Hearing Examiner did not address the who . . . what, where, when, how, [or] why of a specific bill and lacked the most basic hallmarks of a contested case as it did not involve the presentation and consideration of evidence. [4] Rather than focusing on adjudicative facts, Euclid Street's petition to WASA focused on questions of law and policy, Dupont Circle Citizen's Ass'n, 343 A.2d at 300, such as: [w]hether new tenants are liable to WASA for the delinquent accounts of former tenants, [w]hether Euclid Street is liable to WASA for the delinquent WASA accounts of the tenants, and [w]hether WASA's policy of placing and maintaining liens on [1]460 Euclid Street . . . violates the Due Process Clause of the Constitution . . . [and] the Takings Clause of the Constitution. Indeed, the WASA Hearing Officer concluded that she did not have authority to review Euclid Street's petition in part because it was clear that neither party [at the hearing] . . . was able to identify the specific bill or bills that the customer believed were inaccurate. Nor, apparently, did Euclid Street identify which bills were being disputed, and were therefore subject to the hearing. Thus, as the Hearing Officer explained, [a]fter more than an hour of testimony, it became clear that this hearing was not about the accuracy of the bills, but rather about the method that WASA chose to try to collect unpaid bills. [5] We similarly conclude that although the hearing before WASA pertained to a specific property—1460 Euclid Street—the issues articulated by counsel were legal in nature and did not require an evidentiary hearing to determine disputed facts. See Citizens Ass'n of Georgetown, Inc., 291 A.2d at 705 (holding that a hearing by the District's Zoning Commission was not adjudicative in part because [i]t is difficult to conceive that factual findings would be required on the particular status of specific individuals). Indeed, Euclid Street's request appears to have been, for all practical purposes, a request for a declaratory order under D.C.Code § 2-508, [6] and we are barred by the APA from directly reviewing an agency's refusal to issue such an order. Id. WASA does not dispute that the Hearing Officer properly determined she was not authorized to entertain a petition asking for such relief. As the administrative hearing petition did not involve a contested case, Euclid Street's appeal was properly brought before the Superior Court, and need not have been filed first with WASA. [7]",jurisdiction
+727,4535344,1,1,"¶1 The Pearl Raty Trust (the Trust) seeks water for an undeveloped lot it owns in Little Cottonwood Canyon. Although the lot sits in unincorporated Salt Lake County, it falls within Salt Lake City’s water-service area. According to the Trust, this makes it an inhabitant of Salt Lake City and thereby entitled to the city’s water under article XI, section 6 of the Utah Constitution. The court of appeals rejected this argument. Because the Trust fails to SALT LAKE CITY CORP. v. HAIK Opinion of the Court persuade us that the voters who ratified Utah’s Constitution would have considered it an inhabitant of Salt Lake City, we affirm.",introduction
+728,1670195,1,1,"Defendant, a black male, was charged with armed robbery. His first trial ended in a mistrial when a jury composed of nine whites and three blacks could not agree on the ten votes necessary for a verdict. During the voir dire in defendant's second trial his attorney raised an objection that five black prospective jurors had been improperly excused by the prosecutor on peremptory challenges. [1] The prosecutor, upon instruction by the trial judge, offered racially neutral explanations for these challenges, and the trial judge allowed voir dire to continue. After two more black jurors were peremptorily challenged by the prosecutor, the defense raised a second objection. The prosecutor again offered racially neutral explanations, and the trial judge, although expressing concern over the racial composition of the jury in proportion to that of the parish, allowed voir dire to proceed. The defense made another objection after the prosecutor used his eighth peremptory challenge to exclude a black juror, but the trial judge overruled the objection after the prosecutor gave racially neutral reasons for the challenge. When voir dire was completed, the prosecutor had used eight of his twelve peremptory challenges. All eight of the prospective jurors who were challenged peremptorily were black. The two black jurors who served on the jury were the first and the eighth jurors chosen. Defendant was tried and convicted by a twelve-person jury composed of ten white jurors and two black jurors. The poll of the jury was not recorded, but the vote was ten to two for a verdict of guilty as charged. The court of appeal affirmed the conviction, finding that defendant had not established a prima facie case of discrimination in the prosecutor's exercise of peremptory challenges. 522 So.2d 584. The court noted that there was no pattern of strikes against blacks, the first and eighth selected jurors being black, and there were absolutely no references in the record to racial factors or other such considerations. We granted defendant's application for certiorari to determine the correctness of the rulings of the courts below. 536 So.2d 1226. The Batson Decision In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Court recognized the principle that a state's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause. Id. at 203-204, 85 S.Ct. at 826. However, the Court required, as proof of discriminatory purpose sufficient to establish an equal protection violation, a showing of systematic exclusion of jurors on account of race over a number of cases. Id. at 227, 85 S.Ct. at 839. The Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), changed this burden, deciding that evidence of the prosecutor's discriminatory use of peremptory challenges in a single case may be sufficient to constitute an equal protection violation. The Court held that an equal protection violation occurs when the prosecutor, in a case against a member of a cognizable racial group, exercises peremptory challenges to remove members of the defendant's race from the jury venire for a discriminatory purpose. The Court set standards for assessing a prima facie case of purposeful discrimination and placed the burden on the prosecutor, after such a prima facie showing, to come forward with a neutral explanation for challenging black jurors that is related to the particular case. [2] The Court imposed the requirement of a timely objection to the peremptory challenges, but decided not to formulate a procedure for implementing the holding of the case. Noting the wide variety of jury selection practices in state and federal courts across the country, the Court declined to consider whether it is more appropriate for the trial court, upon a finding of discriminatory purpose, to discharge the venire and select a new jury from a panel not previously associated with the case or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire. Justice Powell's majority opinion in Batson, along with the concurring opinion of Justice White (the author of Swain), placed considerable trust in the perceptive ability and fair-minded attitude of trial judges. Because a trial judge's findings pertaining to purposeful discrimination turn largely on credibility evaluations, such findings should be entitled to great deference by a reviewing court. Id. at 98, note 21, 106 S.Ct. at 1724, note 21. It has been predicted that the effectiveness of the Batson decision in eliminating racially motivated challenges will depend upon the level of scrutiny applied in the determination of the validity of the racially neutral explanations advanced by the prosecutor for the exercise of peremptory challenges against blacks. Raphael, Discriminatory Jury Selection: Lower Court Implementation of Batson v. Kentucky, 25 Willamette L.J. 259 (1989). In the more than three years since the Batson decision no previous applications for certiorari in post-Batson cases on direct review have raised serious issues as to the trial court's abuse of discretion in finding that the prosecutor advanced valid racially neutral reasons for striking blacks from the jury. [3] Perhaps this is an indication that the trial courts of this state have been successful in recognizing prosecutorial pretext in voir dire and in separating valid racially neutral reasons from pretexts designed to hide discriminatory purpose. Nevertheless, we believe that the Batson objective of limiting racial discrimination in jury selection is attainable only if trial judges rigorously scrutinize prosecutors' explanations of challenges against blacks, particularly those based on irrational or intuitive reasons given after a prima facie showing of discriminatory intent. We further believe that appellate courts should accord great deference to rulings by trial judges in these areas. In order to provide better guidance for the trial courts of this state we will review in more detail the required standards established by Batson and will apply these standards to the facts of this case. Prima Facie Case by the Defendant Under Batson the defendant, after timely objection, must demonstrate a prima facie case of purposeful discrimination. [4] To do so, the defendant must establish that he is a member of a cognizable racial group, that the prosecutor has exercised his peremptory challenges to remove other members of that race from the jury, and that these facts, along with the other relevant circumstances, raise an inference that the prosecutor used his peremptory challenges to exclude the veniremen from the jury on account of their race. Id. at 96, 106 S.Ct. at 1722. The trial judge must determine whether the defendant has established the requisite prima facie case. In making this determination, the trial judge should consider all relevant circumstances, including any pattern of strikes by the prosecutor against black jurors and any questions or statements by the prosecutor during voir dire examination or in exercising his challenges which may support or refute an inference of purposeful discrimination. Id. at 96-97, 106 S.Ct. at 1722-1723. In the present case the trial judge, without expressly ruling on the issue, apparently found that defendant adequately established a prima facie case of purposeful discrimination. [5] After defendant made his first Batson objection, the trial judge expressed concern over the composition of the partial jury (two blacks and seven whites) and then instructed the prosecutor to state your reasons under Batson. The judge allowed the voir dire to proceed, but also required the prosecutor to state reasons for his challenges when the defendant raised the second and third Batson objections. The court of appeal concluded that the trial court erred in determining that a prima facie showing of purposeful discrimination had been made by the defendant. The court stated: There was no `pattern' of strikes against blacks giving rise to an inference of discrimination because the first juror and eighth juror selected were both black. Our examination of the voir dire shows there was absolutely no reference to racial factors or other such considerations. Nor were there any other circumstances shown on the record which the trial court could have used to make a finding of discrimination against black jurors. 522 So.2d at 590. We disagree with the court of appeal. An examination of all of the relevant circumstances surrounding the voir dire could reasonably lead a trial judge to infer the existence of purposeful discrimination. Defendant was black and a member of a cognizable racial group. There was a distinct pattern of strikes against black jurors in that the prosecutor used all eight of his exercised peremptory challenges to excuse black persons from the jury. Although two of the twelve persons who served on the jury were black, the mere presence of blacks on a jury does not necessarily defeat a Batson claim. [6] The Court in Batson noted that `[a] single invidiously discriminatory governmental act' is not `immunized by the absence of such discrimination in the making of other comparable decisions'. Id., 476 U.S. at 95, 106 S.Ct. at 1722 (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, n. 14, 97 S.Ct. 555, 564, n. 14, 50 L.Ed.2d 450 (1950)). See also U.S. v. demons, 843 F.2d 741 (3rd Cir. 1988), in which the court stated that striking a single black juror could constitute a prima facie case even when blacks ultimately sit on the panel and even when valid reasons exist for striking other blacks, and U.S. v. David, 803 F.2d 1567 (11th Cir.1986), which noted that the striking of one black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown. Moreover, the presence of two black persons on defendant's jury did not necessarily defeat an inference of discrimination. Because only ten votes were needed to convict defendant of armed robbery, the prosecutor could have assumed, contrary to Batson's admonition that it was unacceptable to do so, that all black jurors would vote on the basis of racial bias and then purposefully discriminated by limiting the number of blacks on the jury to two. [7] We conclude, as apparently did the trial judge, that the showing of the pattern of strikes by the prosecutor and the other relevant circumstances was sufficient for the defense to establish a prima facie case of purposeful discrimination. Rebuttal by the Prosecutor Once the defendant makes a prima facie showing of purposeful discrimination, Batson shifts the burden to the prosecutor to come forward with a neutral explanation for challenging the black jurors. This explanation may be something less than justification of a challenge for cause, but must be something more than the prosecutor's assumption or intuition that the juror will be partial to the defendant because of their shared race. Neither may the prosecutor merely assert good faith or deny discriminatory motive. The neutral explanation must be one which is clear, reasonably specific, legitimate and related to the particular case at bar. Id. 476 U.S. at 97-98, 106 S.Ct. at 1723; Belcuore, Restricting Racially Motivated Peremptory Challenges, 24 Fed.B.J. 39 (Jan.1987). After the prosecutor has presented reasons for his use of a peremptory challenge which on their face are racially neutral, an issue of fact is joined, and the trial court must assess the weight and credibility of the explanation in order to determine whether there was purposeful discrimination in the use of the challenge. Tompkins v. Texas, 774 S.W.2d 195, 202 (Tx.Crim. App.1987), affd. without opinion by an equally divided court, ___ U.S. ___, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989); Batson, 476 U.S. at 98, 106 S.Ct. at 1723. In the present case defendant's prima facie showing raised an inference of discrimination. Therefore, the burden of going forward shifted to the prosecutor to express racially neutral reasons for challenging each of the black jurors. Defendant's showing of purposeful discrimination must be upheld unless the prosecutor contradicts or rebuts this showing. Tompkins v. Texas, supra . The prosecutor offered various explanations for excusing the eight blacks from the jury. [8] He stated that Lubertha Jones was excused because she had only an eighth grade education and did not seem to be aware of the verdict rendered in a civil trial at which she had served on a jury. She answered that they were free when questioned about the verdict in that civil case. The prosecutor did not believe Jones would comprehend the present proceeding. Andra Thompson was excused because he was a smart ass. According to the prosecutor, Thompson appeared to be looking for a joke and did not take the proceedings seriously. Nathaniel Blakes was excused because he appeared to have a jaded attitude toward the police as a result of dissatisfaction after police investigations of crimes in which he or his mother had been the victim. The prosecutor doubted that Blakes could give a police officer the same consideration in determining credibility and truthfulness as he could any other witness. Carl Vance was excused because he had a blank stare on his face and seemed disinterested in the proceedings. According to the prosecutor, Vance appeared to be hostile to counsel for both sides. The prosecutor also was concerned that Vance had been terminated by the Ethyl Corporation after more than eight years and had become a truck driver, but did not want to inquire into the matter at the risk of embarrassing the prospective juror. Audrey Williams was excluded because she had been unemployed in excess of one year, was evasive about her prior work history, and indicated that she had 600 hours in a business college. The prosecutor found the latter assertion very difficult to believe. Charley Jones, who was a member of the Mount Zion City Baptist Church, and Gloria Spears, who was a member of the Zion City Baptist church, were excused because they were Baptist. The prosecutor stated: I felt that any sympathy they might have in the area of religion would lie with this defendant and that they might tend to acquit him based solely upon the fact that he claimed to have been present at a baptist affiliated revival service rather than any indications they might receive from other sources that testify from the witness stand as to this defendant's guilt. They are not being excluded on the basis of their religion alone, but only on the basis of any prejudice that they may have because this man is going to claim to have been at a religious service on the date of the armed robbery. Defense counsel then informed the court that defendant had not been at a Baptist service on the night of the robbery, but had been at a service sponsored by the Church of God in Christ. The prosecutor acknowledged his mistake, but decided to stand on the grounds as stated. The last peremptory challenge was exercised against Mary Matthews, whose son had been shot at while working on his car. Inasmuch as Matthews dropped the case because a teenager did the shooting, the prosecutor thought Matthews was too tolerant of crime. The trial judge did not reach the point of assessing the weight and credibility of the explanations, but merely accepted the explanations because they were racially neutral on their face. [9] Rubber stamp approval of any non-racial explanation, no matter how whimsical or fanciful, would destroy Batson's objective to ensure that no citizen is disqualified from jury service because of his race. State v. Butler, 731 S.W.2d 265 (Mo.App. 1987). Presumably, any prosecutor could confect a set of standard racially neutral explanations for dismissing a juror. See Stewart, Court Rules Against Jury Selection Based on Race, 73 A.B.A.J. 68, 70 (1986). If trial courts were required to find satisfactory any reason given by the prosecutor not based on race, only prosecutors who admitted point blank that they excluded veniremen because of their race would be found in violation of the Fourteenth Amendment's guarantee of equal protection. As the court stated in State v. Slappy, 522 So.2d 18, 22 (Fla. 1988): [A] judge cannot merely accept the reasons proffered at face value, but must evaluate those reasons as he or she would weigh any disputed fact. In order to permit the questioned challenge, the trial judge must conclude that the proffered reasons are, first, neutral and reasonable and, second, not a pretext. These two requirements are necessary to demonstrate `clear and reasonably specific... legitimate reasons.' Batson, 476 U.S. at 89 n. 20, 106 S.Ct. at 1724 n. 20. Moreover, they serve the goal of demonstrating a `neutral explanation related to the particular case to be tried,' id. at 89, 106 S.Ct at 1723, and that `the questioned challenges were not exercised solely because of the prospective jurors' race.' The trial judge in this case therefore applied the incorrect standard in determining the validity of the prosecutor's reasons for challenging the black jurors. [10] The judge failed to assess the weight and credibility of each explanation and to make the necessary finding whether the explanation was legitimate and acceptable. As noted earlier, a reviewing court should generally accord the trial court great discretion in its determination whether there was purposeful discrimination in the prosecutor's exercise of peremptory challenges. This is so because the decision usually turns on credibility determinations. In the present case, however, the trial court applied the incorrect standard. Nevertheless, it is not necessary to remand the case to the trial court for a hearing on the issue and for application of the correct standard. Even if the trial court had applied the correct standard, the reasons given by the prosecutor were not sufficient to rebut the prima facie showing of discrimination, at least as regards jurors Charley Jones and Gloria Spears. The sole reason given for excluding these jurors was the fact they were Baptist. However, the prosecutor did not pursue any consistent, trial-related strategy of striking jurors with the same or similar characteristics. At the time these jurors were excused, the prosecutor had already accepted two black Baptists and two whites who attended the Baptist Church (although one white juror was subsequently excused by the defense). The prosecutor later accepted an alternate juror who was also a Baptist. Other courts have rejected explanations for challenges when the prosecutor failed to challenge other jurors, not of the defendant's race, who shared the same characteristic as that claimed by the prosecutor as the reason for the challenge. [11] See U.S. v. demons, 843 F.2d 741 (3rd Cir. 1988); U.S. v. David, 803 F.2d 1567 (11th Cir. 1986); State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986); State v. Slappy, 522 So.2d 18 (Fla.1988); State v. Butler, 731 S.W.2d 265 (Mo.App. 1987); Floyd v. State, 511 So.2d 762 (Fla.Dist.Ct.App.1987); and People v. Mora, 190 Cal.App.3d 208, 235 Cal.Rptr. 340 (1987). However, the fact that a prosecutor excuses one person with a particular characteristic (such as religious affiliation) and not another similarly situated person does not in itself show that the prosecutor's explanation was a mere pretext for discrimination. The accepted juror may have exhibited traits which the prosecutor could have reasonably believed would make him desirable as a juror. People v. Young, 128 Ill.2d 1, 131 Ill.Dec. 78, 538 N.E.2d 453 (1989). In the present case, however, the prosecutor did not even inquire into the religious affiliation of any juror, black or white. Only the defense made such inquiries. [12] Religious affiliation apparently played no part in the prosecutor's selection strategy until he exercised his sixth and seventh peremptory challenges on Charley Jones and Gloria Spears, at which time nine jurors had been accepted, three of whom were Baptists. Moreover, the prosecutor did not seek additional information about religious beliefs or practices from any of the Baptist jurors who served on the jury or from those who were excused. [13] Significantly, the white Baptist who served on this jury had been on a previous jury which acquitted a person accused of murder. Of the other six jurors excused by the prosecutor on peremptory challenges, four (Luberta Jones, Carl Vance, Audry Williams and Mary Matthews) were Baptist, but the prosecutor did not mention religious affiliation in his reasons for the challenges. Other than race or religion, there was no other apparent reason to exclude the two black Baptists. Charley Jones had worked as a maintenance coordinator for Ciba-Geigy for twenty years, had a college degree in business administration, was a family man, had no prior jury experience and had no close friends in law enforcement. Gloria Spears had a college degree, had worked as a secretary before marrying and having three children, had been a cook in a retirement home for two years, and had no close friends in law enforcement. Furthermore, any prosecutorial strategy in excusing Charley Jones and Gloria Spears in order to avoid seating additional Baptists and minimize the risk that religious affiliation would play a decisive role in the verdict is undermined by the fact that the three Baptists already seated could force a deadlocked jury if they voted solely by religious affiliation. The record in this case strongly suggests that the prosecutor, already frustrated in defendant's first trial by a hung jury which included three blacks, pursued a strategy in the second trial of limiting the number of blacks on the jury to two, thus making a conviction possible even if all of the blacks on the jury voted according to racial bias. [14] This pattern of striking all black jurors (except two) continued in the face of mounting pressure by the trial court to select a jury more representative of the black population of the parish. The prosecutor's stated reason for excluding Charley Jones and Gloria Spears was inconsistent with his attitude on religious affiliation in the selection or rejection of other jurors and was insufficient to rebut the prima facie showing of purposeful discrimination. Accordingly, the judgment of the court of appeal affirming the conviction and sentence is reversed, and the case is remanded to the district court for a new trial. COLE, J., respectfully dissents. MARCUS, J., dissents and assigns reasons. WATSON, J., dissents for reasons assigned by MARCUS, J.",facts
+729,2110500,1,4,"Whether a statute is constitutional is a question of law, with respect to which an appellate court has an obligation to reach a conclusion independent of that of the trial court. State v. Cushman, 256 Neb. 335, 589 N.W.2d 533 (1999); State v. Divis, 256 Neb. 328, 589 N.W.2d 537 (1999). A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. Schindler v. Department of Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999).",standard of review
+730,4561138,1,1,"Cesar Aboytes-Mosqueda was working on a roofing job when he slipped and fell from the roof. Aboytes-Mosqueda brought a workers’ compensation claim against Ismael Huerta and LFA Inc. Aboytes-Mosqueda claims that Huerta was his employer and that Huerta and LFA conducted a scheme to avoid liability under the Nebraska Workers’ Compensation Act. Aboytes-Mosqueda claims that LFA should be considered a statutory employer pursuant to Neb. Rev. Stat. § 48-116 (Reissue 2010). The court considered the evidence presented - 279 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 and dismissed the claim, because Aboytes-Mosqueda failed to prove he was an employee of Huerta. We affirm.",introduction
+731,1840632,1,1,"The general rules regarding our review of summary judgments are well-settled. We review them for correction of errors at law. Carr v. Bankers Trust Co., 546 N.W.2d 901, 903 (Iowa 1996); Schaefer v. Cerro Gordo County Abstract Co., 525 N.W.2d 844, 846 (Iowa 1994); Iowa R.App.P. 4. Summary judgment is appropriate only when the entire record shows no genuine issues of material fact and that the district court correctly applied the law. Carr, 546 N.W.2d at 903; Schaefer, 525 N.W.2d at 846; Iowa R.Civ.P. 237(c). The moving party has the burden to show the nonexistence of a material fact. Fischer v. UNIPAC Serv. Corp., 519 N.W.2d 793, 796 (Iowa 1994). The evidence is viewed in the light most favorable to the nonmoving party. Thorp Credit, Inc. v. Gott, 387 N.W.2d 342, 343 (Iowa 1986). In this case, the parties disagree as to what evidence was before the district court in the summary judgment proceeding. On appeal, the plaintiff refers to depositions that the defendants contend were not included in the plaintiff's resistance to summary judgment as required by Iowa Rule of Civil Procedure 237(e). In our view of the case, however, the scope of the summary judgment record is not significant because the key issue is whether the defendants are absolutely immune from suit—a legal issue.",standard of review
+732,2268496,1,3,"[¶ 8] Where an objection is posed, we review a trial court's evidentiary ruling for an abuse of discretion. A trial court's decision on the admissibility of evidence is entitled to considerable deference, and will not be reversed on appeal unless the appellant demonstrates a clear abuse of discretion. [A]s long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal. Sanchez v. State, 2006 WY 116, ¶ 20, 142 P.3d 1134, 1140 (Wyo. 2006). Leyva v. State, 2007 WY 136, ¶ 17, 165 P.3d 446, 452 (Wyo. 2007). If we conclude the trial court erred in admitting evidence, we must then consider whether the error was prejudicial or harmless. W.R.A.P. 9.04. [¶ 9] When no objection is lodged in the trial court to the evidence challenged on appeal, we apply our plain error standard of review. Plain error will not be found unless: (1) the record clearly shows the alleged error; (2) the party claiming the error demonstrates a violation of a clear and unequivocal rule of law; and (3) the party proves the violation adversely affected a substantial right resulting in material prejudice. Miller v. State, 2006 WY 17, ¶ 15, 127 P.3d 793, 797-98 (Wyo. 2006). Whether an error is reviewed on the basis of plain error or on the basis of harmless error, our primary focus is whether the appellant's case was so seriously prejudiced by the error that he was denied a fair trial. Butcher v. State, 2005 WY 146, ¶ 38, 123 P.3d 543, 554 (Wyo. 2005); Lopez v. State, 2004 WY 103, ¶ 56, 98 P.3d 143, 157 (Wyo. 2004). This involves a determination as to whether, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused. Lopez, ¶ 56, 98 P.3d at 157. The burden of establishing prejudicial error rests upon the appellant. Butcher, ¶ 39, 123 P.3d at 554.",standard of review
+733,3135494,1,4,"The primary objective of statutory interpretation is to ascertain and give effect to the intent of the legislature. People v. Perry, 224 Ill. 2d 312, 323 (2007). This inquiry “must always begin with the language of the statute, which is the surest and most reliable indicator of legislative intent.” People v. Pullen, 192 Ill. 2d 36, 42 (2000). See also Campa, 217 Ill. 2d at 252, citing People v. Woodard, 175 Ill. 2d 435, 443 (1997). We construe the statute as a whole and afford the language of the statute its plain and ordinary meaning. People ex rel. Devine v. Sharkey, 221 Ill. 2d 613, 617 (2006), citing People v. A 3 Neither party has disputed the appellate court’s determination that defendant was not entitled to credit for the time he was in the Program but was nonetheless not obligated to report to the Center. Accordingly, we do not review this determination. -5- Parcel of Property Commonly Known As 1945 North 31st Street, Decatur, Macon County, Illinois, 217 Ill. 2d 481, 499 (2005). “We do not view words and phrases in isolation but consider them in light of other relevant provisions of the statute.” Campa, 217 Ill. 2d at 252-53 (citing People v. Maggette, 195 Ill. 2d 336, 348 (2001), and Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000)). Accordingly, we begin our analysis by considering the meaning of the term “custody” as used in section 5–8–7. Section 5–8–7 provides, in relevant part, that “(b) [t]he offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed .” 730 ILCS 5/5–8–7(b) (West 2004). The State argues that the appellate court erred in concluding that the Program falls within section 5–8–7’s meaning of the term “custody” because only “actual confinement or incarceration” is sufficient. Thus, the State argues that credit for time served is not appropriate under section 5–8–7 because the Program represents a “lesser restraint” that is not the “equivalent of custodial confinement.” The term “custody” is not defined by section 5–8–7 nor any other relevant statue. As noted in Campa, the term “custody” is not defined under either the Code of Criminal Procedure of 1963 (725 ILCS 5/100–1 et seq. (West 2004)) or the Criminal Code of 1961 (720 ILCS 5/1–1 et seq. (West 2004)). Campa, 217 Ill. 2d at 253. Likewise, “custody” is not defined in the Unified Code of Corrections (730 ILCS 5/5–1–1 et seq. (West 2004)). Where a term is not defined, “we must assume that the legislature intended the term to have its ordinary and popularly understood meaning.” Maggette, 195 Ill. 2d at 349. Therefore, despite the General Assembly’s power to make “ ‘a reasonable definition of the terms used in an act’ ” (Perry, 224 Ill. 2d at 326-27, quoting 34 Ill. L. & Prac. Statutes §51, at 86 (2001)), “[i]t is entirely appropriate to employ the dictionary as a resource to ascertain the meaning of undefined terms.” Price v. Philip Morris, Inc., 219 Ill. 2d 182, 243 (2005), citing People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 16 (1991). See also People v. Skillom, 361 Ill. App. 3d 901, 909 (2005) (“It is appropriate to turn to a dictionary when determining the meaning of an otherwise undefined -6- word or phrase”; citing People v. Ward, 215 Ill. 2d 317, 325 (2005), and People v. Blair, 215 Ill. 2d 427, 439-45 (2005)). The definition of “custody” is very expansive. Black’s Law Dictionary underscores the spectrum of state control that can constitute “custody” by breaking the term down into five different forms. “Constructive custody,” the least burdensome form, is defined as “custody of a person (such as a parolee or probationer) whose freedom is controlled by legal authority but who is not under direct physical control.” Black’s Law Dictionary 412 (8th ed. 2004). “Constructive custody” is distinguished from the more onerous forms of both “penal custody” and “physical custody.” “Penal custody” is defined as “[c]ustody intended to punish a criminal offender.” Black’s Law Dictionary 412 (8th ed. 2004). “Penal custody” can be further distinguished from “physical custody,” which is defined as “[c]ustody of a person (such as an arrestee) whose freedom is directly controlled and limited.” Black’s Law Dictionary 1183 (8th ed. 2004). In fact, as this court has previously noted, “custody” “ ‘is “very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession.” ’ ” Campa, 217 Ill. 2d at 254, quoting People v. Campa, 353 Ill. App. 3d 178, 182 (2004), quoting Black’s Law Dictionary 347 (5th ed. 1979). Therefore, custody may encompass varying degrees of state control. General usage dictionaries likewise give a broad definition for “custody.” Webster’s Third New International Dictionary defines “custody” as “judicial or penal safekeeping: control of a thing or person with such actual or constructive possession as fulfills the purpose of the law or duty requiring it: imprisonment or durance of persons or charge of things.” Webster’s Third New International Dictionary 559 (1993). “A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses.” In re J.W., 204 Ill. 2d 50, 85 (2003), citing People v. Jameson, 162 Ill. 2d 282, 288 (1994). Section 5–8–7 is ambiguous because the term “custody” has several definitions and nothing in the context of the statute provides any indication as to the appropriate definition. Because section 5–8–7 is ambiguous, the question before this court -7- is what degree of control the legislature intended when it used the term “custody.” This court has developed two distinct lines of cases interpreting the meaning of the term “custody” in other contexts. The State urges this court to follow the Morrison and Ramos cases. In Morrison and Ramos this court determined that a defendant on bond was not in “custody” for purposes of section 5–8–7. Defendant, on the other hand, asserts that Campa is applicable. In Campa, this court determined that a defendant in the Program was in “custody” for purposes of the speedy-trial statute. Defendant argues that the Campa decision is more analogous, as Campa actually dealt with the Program and not with a defendant on bond. The State, while acknowledging that Campa had to do with the Program, nonetheless argues that Campa is inapplicable because Campa dealt with the meaning of “custody” as that term is used in the speedy-trial statute, but Morrison and Ramos dealt with credit for time served. For the reasons that follow, we agree with defendant. The State argues that this court should follow the Morrison and Ramos decisions and find that “custody” means actual physical confinement. In Morrison, this court concluded that the defendant who was released by the court on bail was not eligible to receive credit for time served under section 5–8–7. In reaching this conclusion, this court reasoned that “custody” “does not include the period of time during which the defendant was released on bail but is predicated upon his confinement.” Morrison, 58 Ill. 2d at 94. The reasoning of Morrison was extended by Ramos, where this court concluded that a defendant who was on home electronic monitoring as a condition of his bond was not in “custody” for the purpose of section 5–8–7. This court reached this conclusion despite defendant’s being confined to his home for 168 days during which he was allowed to leave only three times. Ramos, 138 Ill. 2d at 154 (the defendant was allowed to go to his arraignment and his attorney’s office and to attend the birth of his child; he was denied permission to visit the dentist). In reaching this conclusion, the court noted the significant differences in the degree of liberty and personal intrusion that a defendant on electronic monitoring faces as opposed to a defendant who is confined in a jail or prison. The court reasoned: -8- “Home confinement, though restrictive, differs in several important respects from confinement in a jail or prison. An offender who is detained at home is not subject to the regimentation of penal institutions and, once inside the residence, enjoys unrestricted freedom of activity, movement, and association. Furthermore, a defendant confined to his residence does not suffer the same surveillance and lack of privacy associated with becoming a member of an incarcerated population.” Ramos, 138 Ill. 2d at 159. The court further noted that previous cases had not expressly stated that “section 5–8–7(b) is available only in instances of institutional confinement” but that from “the court’s comparison of ‘confinement’ with the ‘lesser restraints’ of probation, conditional discharge, and supervision, it is clear, however, that such a limitation was again intended.” Ramos, 138 Ill. 2d at 159. Defendant argues that this court should follow the Campa decision and find that “custody” encapsulates time spent at the Center. Defendant asserts that Campa is controlling because unlike Morrison and Ramos, Campa actually dealt with the Program. In Campa, this court examined the term “custody” as used in the speedytrial statute (725 ILCS 5/103–5 (West 2004)) and concluded that time spent in the Program constituted being in “custody.” Campa, 217 Ill. 2d 243. The court specifically reasoned: “[T]he legislature did not intend that the term ‘custody,’ as it is used in the speedy-trial statute, be equated to confinement. Rather, we believe that the legislature intended the term ‘custody’ to have a broad meaning and encompass lesser forms of restraint than confinement. The legislature intended that the term ‘custody’ evolve with changing programs in our correctional institutions.” Campa, 217 Ill. 2d at 254. Thus, defendant asserts that “custody” is not synonymous with confinement and that lesser forms of restraint are sufficient to constitute “custody” under section 5–8–7. Defendant goes on to argue that Campa is more applicable because unlike a defendant on bond, a defendant in the Program remains under the legal authority of the sheriff. For instance, a defendant in the Program can be prosecuted for escape if he fails to -9- return. See Campa, 217 Ill. 2d at 256-57. Further, defendant argues that a defendant in the Program is “only participating by the grace of the Sheriff’s Department. He or she has no constitutional or statutory entitlement to such a boon.” In fact, defendant asserts that in the unlikely event that “a large number of beds suddenly became available at the correctional facility, the Sheriff could simply order the defendant to return to the facility and the defendant would be powerless to challenge such a determination.” Thus, defendant draws a distinction between a defendant on bond and a defendant in the Program and argues that Morrison and Ramos, therefore, are not on point. Notwithstanding this court’s opinion in Campa, the State attempts to differentiate Campa from Morrison and Ramos by noting that actual confinement is needed to receive credit for time served under section 5–8–7. The State asserts that defendant’s focus on who retains the power over a defendant is irrelevant because it does not address actual confinement. Thus, the State maintains that the present case should be controlled by Morrison and Ramos. This case presents a significantly different situation than Morrison or Ramos, as defendant in the instant matter was not on bond. Despite the language of the consent decree in Duran (Duran, 713 F.2d at 294), defendant’s release from confinement was not on a recognizance bond. As this court stated in Campa, “we hold that defendant was not on bail or recognizance while participating in the Day Reporting Center program.” Campa, 217 Ill. 2d at 261. Importantly, in Campa, this court reasoned that the sheriff’s release of inmates bypassed the statutory procedures for the establishment of a bail amount or for release on the defendants’ own recognizance. We reasoned that only the court had the statutory authority to release a defendant on his own recognizance. Campa, 217 Ill. 2d at 261-65. This court concluded the analysis by noting that “a sheriff cannot substitute his or her authority for that of the trial court merely by holding a defendant to conditions similar to those a court may impose.” Campa, 217 Ill. 2d at 265. A bond, established by a court of competent jurisdiction, provides a defendant with judicial procedures that not only protect him from arbitrary arrest, but also provide a means to modify or contest an aspect of or denial of bond. A defendant who is properly entered into -10- bond, recognizance or otherwise, is entitled to judicial procedure before being arrested or having the terms of his liberty modified. For instance, the Code of Criminal Procedure provides that following a defendant’s failure to comply with any condition of a bail bond or recognizance bond “the court  may  issue a warrant for the arrest of the person.” 725 ILCS 5/110–3 (West 2004). Further, if a defendant is “arrested or surrenders within 30 days of the issuance of the warrant” he may be bailable again if “he shows by the preponderance of the evidence that his failure to appear was not intentional.” 725 ILCS 5/110–3 (West 2004). Additionally, the Code of Criminal Procedure provides that a defendant may apply to have the amount of his bail reduced, or “alter the conditions of the bail bond or grant bail where it has been previously revoked or denied.” 725 ILCS 5/110–6(a) (West 2004). Further, if the State makes an application to alter the conditions of a defendant’s bail, he is, with limited exceptions, entitled to “[r]easonable notice of such application by the State.” 725 ILCS 5/110–6(d) (West 2004). Even in the event that the State files a verified application to have a defendant arrested immediately, he is still entitled to a hearing within 10 days on the State’s application. At this hearing, “the State has the burden of going forward and proving the violation by clear and convincing evidence.” 725 ILCS 5/110–6(f)(1), (f)(2) (West 2004). Wherein, “evidence shall be presented in open court,” and a defendant is entitled to “testify, to present witnesses in his behalf, and to crossexamine witnesses if any are called by the State, and representation by counsel and if the defendant is indigent to have counsel appointed for him.” 725 ILCS 5/110–6(f)(2) (West 2004). By contrast, a defendant in the Program has no statutory entitlement to any of the foregoing procedures and protections. For instance, there is no requirement that the sheriff obtain a warrant prior to defendant’s rearrest. In fact, the Cook County sheriff’s office maintains “its own Fugitive Unit to locate and reincarcerate AWOLs f r o m i t s p r o g r a m s . ” http://www.cookcountysheriff.org/dcsi/index.html (last visited April 21, 2008). Further, a defendant in the Program does not have a statutory right to challenge the terms, conditions, or rules of his participation in the Program. There is no established judicial procedure for a defendant to -11- challenge the sheriff’s selection of inmates for the Program, nor to contest the terms or the track to which he is assigned. There is no right to a hearing and no right to counsel. A defendant must simply adhere to the sheriff’s unilaterally imposed conditions of participation. “Any offender who fails to adhere to the rules of the program is reincarcerated.” http://www.cookcountysheriff.org/dcsi/day.html (last visited April 21, 2008). Unlike a defendant who is actually released on bond, the sheriff bears no burden of proof before finding that a defendant has violated the rules of the Program and reincarcerating him. A defendant is therefore subject to the discretion of the sheriff. Additionally, because there is no statutory authority for the Day Reporting Center, there is no restriction on the sheriff’s ability to create, change, or terminate the Program. The sheriff could, at any point, disband the Program or intensify the Program. An adversely affected defendant would have no judicial recourse to contest the rule change, because he has no statutory right to participate in the Program to begin with. Nonetheless, the State focuses on the fact that defendant has “not been imprisoned at all while in the Day Reporting Program.” The State further argues that the Program is a “lesser penal restraint” that does not entitle defendant to credit for time served. In the same vein, the State asserts that defendant’s arguments that he “can be prosecuted for escape, and that he is ‘vulnerable’ to reincarceration for violations determined by the sheriff instead of a court” are irrelevant because they focus on “who has legal power over defendant, but do not address whether he is actually confined.” The State’s focus on actual confinement is misplaced, as “custody” involves more than mere physical possession and geographic limitation. The dictionary definition of “custody” is broad enough to incorporate virtually any degree of state control. However, despite the breadth of this definition, this court has found that some state control is outside the definition of “custody.” In Ramos, the defendant was confined to his home for 168 days, as a condition of his bond. Nevertheless, this court held that defendant was not in custody. Ramos, 138 Ill. 2d 152. Yet, in People v. Simmons, 88 Ill. 2d 270 (1982), this court held that a defendant who failed to return to the Peoria County Correctional Center from an unsupervised six-hour shopping trip was in custody and could be prosecuted for escape. In -12- reaching this conclusion the court reasoned that “[h]owever much the limits of his confinement were temporarily enlarged, or the restrictions on his conduct temporarily lessened, he was still legally in the custody of the Center, and had a legal duty to submit to that custody.” Simmons, 88 Ill. 2d at 273. Thus, in Simmons, this court found that it was the legal duty to submit to custody and not the actual physical confinement, or lack thereof, which defined a defendant’s custodial status. In the present case, the sheriff’s decision to modify the means used to hold defendant had no impact on the sheriff’s legal authority over defendant or on defendant’s obligation to submit to that authority. Thus, defendant, like the defendant in Simmons, was in custody while participating in the Program. In this case, the trial court considered all the relevant factors under the Code of Criminal Procedure (725 ILCS 5/110–5 (West 2004)) and set defendant’s bail. Defendant, however, never posted bail and was never admitted to bond. Instead, the sheriff released defendant from the confines of the Cook County jail on the condition that he participate in the Program. Admittedly, “the limits of [defendant’s] confinement” were enlarged, and the “restrictions on his conduct” were less onerous than incarceration, but, as in Simmons, he still remained under the legal custody of the sheriff and had a legal duty to submit to that authority at any time and for any reason. Defendant had no right to be in the Program and had no recourse under the statutes of this state if the sheriff decided to reincarcerate him, or even to terminate the entire Program and reincarcerate all the participants. Further, even if physical confinement were required to constitute “custody,” defendant was still subject to confinement, albeit limited confinement, while at the Center. Defendant spent between three and nine hours a day in a state-run “strictly supervised environment.” http://www.cookcountysheriff.org/dcsi/day.html (last visited April 21, 2008). The amount of time defendant spent there, the program track defendant was placed on, and the services provided to him were all at the discretion of the sheriff. Defendant was not free to come and go as he pleased. He was not free to structure his day as he saw fit. He was obligated to report at an established time to and participate in a state-run program. He was not given the ability to decline attending on any given day. In fact, defendant’s failure to report could result in -13- his immediate arrest and reincarceration. Thus, unlike a defendant on a traditional bond, a defendant in the Program is not only under the “constructive custody” of the sheriff, he is also under the sheriff’s physical custody for several hours a day. Thus, we hold that defendant was in “custody” while participating in the Program for the purposes of section 5–8–7. Additional support for our conclusion that defendant was in custody while enrolled in the Program comes from the fact that defendant’s failure to report could result in his being prosecuted for escape. See 720 ILCS 5/31–6 (West 2004); Simmons, 88 Ill. 2d 270; People v. Marble, 91 Ill. 2d 242 (1982). In Campa, this court held that “[s]ince escape is the unauthorized departure from custody [citation], a defendant cannot escape unless he is first in custody.” Campa, 217 Ill. 2d at 259. We find this logic no less persuasive in the current context than it was in the context of the speedy-trial statute of Campa. As we stated in Campa, “[a] defendant must necessarily be in ‘custody’ while participating in these programs if he is to be held accountable for ‘escape’ for failure to comply with the terms of the programs.” Campa, 217 Ill. 2d at 259. Finally, we acknowledge the State’s argument that the purposes behind the enactments of section 5–8–7 and the speedy-trial statute are different. However, this difference does not necessitate a different result, as under the totality of present circumstances, we believe that the Program falls within the legislature’s intended meaning of the term “custody.” In the present case, the sheriff maintains complete legal authority over defendant and physical custody for a period of time every workday. In addition to the sheriff’s legal authority over defendant, the sheriff also has complete authority over the Program. The sheriff may, at his discretion, modify, intensify, or cancel the Program at any time without affording defendant process or judicial oversight. Defendant’s involvement in the Program, the hours he is required to report, the degree of freedom afforded outside the Center, as well as the Program’s very existence, are all under the control of a state official who has the power to make any change he sees fit at any time he sees fit. This situation must fall within the legislature’s intended meaning of “custody” as contemplated by section 5–8–7. Here, it is the sheriff, not a court, who has chosen to modify the means used to hold defendant. The fact that the sheriff has chosen to -14- make defendant’s confinement less onerous does nothing more to deprive defendant of credit for time he has served than the sheriff’s decision to hold defendant in solitary confinement would entitle him to extra credit for time served.",analysis
+734,1882577,1,1,"On appeal, Ballard raises four issues: (1) The State did not prove the charges against him; (2) the trial court erred in finding that no discovery violation occurred when the State failed to disclose the fingerprint comparison chart prepared by the State's fingerprint expert for use as a demonstrative exhibit at trial; (3) the trial court violated the Eighth Amendment by finding that the defense failed to prove the mitigating circumstances of brain damage and Ballard's impaired capacity to conform his conduct to the requirements of the law; and (4) the Florida Death Penalty Statute is unconstitutional because it violates the Sixth Amendment right to have aggravating circumstances found by the jury. It is only necessary that we discuss the first issue because we find that the evidence presented is insufficient to support Ballard's convictions.",issues
+735,2594137,1,1,"[¶ 2] Magallanes submits the following issues for our review: I. Whether there was sufficient evidence for the jury to find [Magallanes] guilty of murder in the first degree where the evidence failed to show a conclusive cause of death, where no witness testified that they saw [Magallanes] actually shoot the victim, and where there is no physical evidence linking the victim to the crime? II. Whether ineffective assistance of counsel, specifically in failing to follow up on DNA and scientific testing, denied [Magallanes] his constitutional right to a fair trial? III. Whether the prosecutor committed misconduct by misstating the law, vouching for the credibility of a witness, and misstating facts in closing argument?",issues
+736,1590426,1,1,"Respondent, Jacqueline Ann Hughes, was admitted to the practice of law in the State of Nebraska on April 25, 2002, and at all times relevant hereto was engaged in the private practice of law in Lincoln, Nebraska. On June 15, 2004, formal charges were filed against respondent. The formal charges set forth one count that included charges that respondent violated the following provisions of the Code of Professional Responsibility: Canon 1, DR 1-102(A)(1) (violating disciplinary rule); DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude); DR 1-106(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and DR 1-102(A)(6) (engaging in conduct that adversely reflects on fitness to practice law); as well as her oath of office as an attorney, Neb.Rev.Stat. § 7-104 (Reissue 1997). On July 26, 2004, respondent filed a conditional admission under Neb. Ct. R. of Discipline 13 (rev.2002), in which she knowingly did not challenge or contest the truth of the allegations that she violated DR 1-102(A)(1), (3), (4), and (6), as well as her oath of office as an attorney, and in which she in effect waived all proceedings against her in connection therewith in exchange for a stated form of consent judgment of discipline outlined below. Upon due consideration, the court approves the conditional admission.",introduction
+737,2814264,1,1,"Defendants below, Appellants, Hill International, Inc. (“Hill” or the “Company”), David L. Richter, Camille S. Andrews, Brian W. Clymer, Alan S. Fellheimer, Irvin E. Richter, Steven M. Kramer and Gary F. Mazzucco (collectively, the “Individual Defendants,” and together with Hill, the “Company Defendants”) seek review of Court of Chancery orders dated June 5, 2015 and June 16, 2015. In its June 5, 2015 Order, the Court of Chancery enjoined Hill from conducting any business at its June 9, 2015 Annual Meeting, other than convening the meeting for the sole purpose of adjourning it for a minimum of 21 days, in order to permit plaintiff below, Appellee, Opportunity Partners L.P. (“Opportunity”), to present certain items of business and director nominations at Hill’s 2015 Annual Meeting. On June 16, 2015, the Court of Chancery entered the Order dated June 5, 2015 as a partial final judgment pursuant to Court of Chancery Rule 54(b). This expedited appeal requires us to resolve a dispute over the proper interpretation of certain provisions of Articles II and III of Hill’s Bylaws as Amended and Restated on November 12, 2007 (the “Bylaws”). The sections of the Bylaws at issue, specifically language in Sections 2.2 and 3.3, concern the operative date for determining the time within which stockholders must give notice 1 of any shareholder proposals or director nominees to be considered at Hill’s upcoming annual meeting (the “Advance Notice Bylaws”).",introduction
+738,884953,1,4,"¶ 46 Did the District Court err when it allowed evidence and testimony regarding James Wells' blood alcohol content and evidence regarding the amount of alcohol James Wells consumed prior to arriving at the Town Tavern? ¶ 47 We have held that a district court has broad discretion to determine whether evidence is admissible, and its evidentiary rulings should not be overturned absent an abuse of discretion. See Bueling v. Swift, 1998 MT 112, ¶ 24, 288 Mont. 472, ¶ 24, 958 P.2d 694, ¶ 24. ¶ 48 At trial, Mortensen contended that the test results of Wells' blood alcohol content taken by the hospital shortly after the incident were not admissible because the standard for civil liability pursuant to § 27-1-710, MCA, is visible intoxication, rather than legal intoxication. The District Court granted Mortensen's motion in limine and refused evidence of the BAC test results. The District Court later held, however, that if Cusenbary's expert on the issue of blood alcohol content, toxicologist Dr. Brian Finkle, could be qualified to give an opinion of blood alcohol content from a hypothetical situation, rather than from the hospital's BAC test results, then the court would allow the opinion. Based upon the District Court's ruling, Cusenbary did not introduce any evidence of the BAC test results from the hospital. Instead, Cusenbary's counsel asked Dr. Finkle a hypothetical based upon the testimony of Wells in which he had to estimate Wells' BAC content on the evening in question based upon Wells' own testimony of the number of drinks he consumed that evening. ¶ 49 Mortensen asserts that Dr. Finkle's estimate of blood alcohol content should be excluded because eye witness testimony is the only kind of evidence that is relevant to the issue of how Wells appeared. However, Dr. Finkle expressly testified that there is a direct correlation between the level of alcohol in a person's blood and observable signs of intoxication. Dr. Finkle explained that the subjective, observable signs of intoxication include slurred speech, staggered walk, talkativeness, and fighting behavior. He explained that the more a person drinks the more severe and obvious the symptoms of intoxication become because there is a proportional relationship to the rising blood alcohol concentration and the severity of the symptoms of intoxication. ¶ 50 It is apparent that the District Court agreed with Mortensen's contention that the BAC test results were not probative of the issue of visible intoxication at the time that Wells was served alcohol. However, based upon a hypothetical set of facts taken directly from the testimony of Wells and relating to the amount of alcohol consumed, the rate of consumption, and other variables, Dr. Finkle was able to estimate a range of Wells' probable blood alcohol concentration at the time of the accident. Thus, Dr. Finkle's testimony is not based upon BAC test results taken after the accident. Rather, he provided expert opinion testimony concerning his estimate of Wells' blood alcohol concentration at the time of the accident. As explained by Dr. Finkle, blood alcohol concentration at the time of the accident is directly related to the visible signs of intoxication that a person may exhibit. ¶ 51 Accordingly, based upon Dr. Finkle's estimate of blood alcohol concentration, it was probable that Wells was displaying observable signs of intoxication while served alcohol by Mortensen. Therefore, we conclude that Dr. Finkle's opinion was relevant pursuant to Rule 401, M.R.Evid., and the District Court did not abuse its discretion.",issues
+739,1993883,1,4,"[1] Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court's findings. In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007).",standard of review
+740,1537741,1,2,"On appeal, respondent contends that the trial justice erred in concluding that he abandoned his children by his actions and incarcerations because he repeatedly made efforts to contact his children and DCYF both while incarcerated and during the short periods between his incarcerations. We disagree.",analysis
+741,4542698,1,2,"[1] Because attorney discipline cases are original proceedings before this court, we review a referee’s recommendations de novo on the record, reaching a conclusion independent of the referee’s findings. 3",standard of review
+742,2001582,1,4,"Appellant argues that the evidence was insufficient to support the jury's verdict. The test for sufficiency is whether, accepting all the evidence as true, with all reasonable inferences that properly could be made from it, the evidence proved beyond a reasonable doubt that appellant was guilty. Commonwealth v. Barky, 476 Pa. 602, 383 A.2d 526 (1978). A thorough review of the record shows that the evidence admitted, although largely circumstantial, together with permissible inferences, was sufficient to support a verdict of guilty.",sufficiency of the evidence
+743,889326,2,2,"
+¶36 Jurisdiction is the power and authority of a court to hear and decide the case or matter before it. State v. Martz, 2008 MT 382, ¶ 21, 347 Mont. 47, 196 P.3d 1239. This power and authority is conferred on courts only by the Constitution or statutes adopted pursuant to the Constitution. Martz, ¶ 21. ¶37 Because jurisdiction involves the fundamental power and authority of a court to determine and hear an issue, a court may address the question of its jurisdiction sua sponte. See Stanley v. Lemire, 2006 MT 304, ¶¶ 30-32, 334 Mont. 489, 148 P.3d 643. In fact, courts have an “independent obligation” to determine whether jurisdiction exists, even in the absence of a challenge from any party, and a court which in fact lacks jurisdiction cannot acquire it by consent of the parties. Stanley, ¶¶ 31-32. ¶38 Article VII, Section 2 of the Montana Constitution delineates the parameters of this Court’s jurisdiction. It states as follows: (1) The supreme court has appellate jurisdiction and may issue, hear, and determine writs appropriate thereto. It has original jurisdiction to issue, hear, and determine writs of habeas corpus and such other writs as may be provided by law. (2) It has general supervisory control over all other courts. (3) It may make rules governing appellate procedure, practice and procedure for all other courts, admission to the bar and the conduct of its members. Rules of procedure shall be subject to disapproval by the legislature in either of the two sessions following promulgation. (4) Supreme court process shall extend to all parts of the state. ¶39 Nowhere in Article VII, Section 2, is there authority for this Court to entertain an original proceeding concerning a ballot challenge. Our original jurisdiction is limited. 21 We have original jurisdiction “to issue, hear, and determine writs of habeas corpus and such other writs as may be provided by law.” The present proceeding does not involve a writ. Hence, there being no constitutional source for this Court to exercise original jurisdiction over a non-writ proceeding, the statutes granting us such jurisdiction are, necessarily, null and void. Stanley, ¶ 52 (“Jurisdiction is conferred on the courts only by the Constitution or statutes adopted pursuant to the Constitution.” (emphasis added)). We must dismiss these cases sua sponte.
+
+¶40 The Court nevertheless proceeds on the premise that it has jurisdiction over this proceeding. The statutes governing this Court’s jurisdiction are set out in Title 3, chapter 2, part 2, MCA (which is titled “Supreme Court Jurisdiction”). The jurisdictional provisions specific to review of ballot statements are contained in § 3-2-202(3), MCA, which provides as follows: (a) The supreme court has original jurisdiction to review the petitioner’s ballot statements for initiated measures and the attorney general’s ballot statements for referred measures and the attorney general’s legal sufficiency determination in an action brought pursuant to 13-27-316. (b)(i) In an original proceeding under subsection (3)(a), the petitioner and the attorney general shall certify the absence of factual issues or shall stipulate to and file any factual record necessary to the supreme court’s consideration of the petitioner’s ballot statements or the attorney general’s legal sufficiency determination. (ii) If the parties to an original proceeding under subsection (3)(a) fail to make the certification or stipulation required by subsection (3)(b)(i), the supreme court shall refer the proceeding to the district court in the county of residence of the lead petitioner for development of a factual record and an order that addresses the issues provided in 13-27-316(3). . . . 22 ¶41 Beginning with subsection (3)(a), this Court “has original jurisdiction to review [1] the petitioner’s ballot statements for initiated measures and [2] the attorney general’s ballot statements for referred measures and [3] the attorney general’s legal sufficiency determination in an action brought pursuant to 13-27-316.” This case falls into the third category: a challenge to “the attorney general’s legal sufficiency determination in an action brought pursuant to 13-27-316.” MCFA’s and Harrington’s petitions state that they are brought under § 13-27-316, MCA, and the petitions specifically challenge the Attorney General’s legal sufficiency determination for I-164. ¶42 Next, there is no dispute that the parties have failed to make the certification or stipulation required by subsection (3)(b)(i)—i.e., they have not certified the absence of factual issues or stipulated to and filed any factual record. The Attorney General asserts that the development of a factual record in district court would be “minimal,” and the Court opines that “no issues of fact exist to preclude this Court from” rendering a decision. But that is beside the point. The statute states that the petitioner and the Attorney General “shall certify the absence of factual issues or shall stipulate to and file any factual record necessary to the supreme court’s consideration of . . . the attorney general’s legal sufficiency determination.” Section 3-2-202(3)(b)(i), MCA. The statute does not say that the certification or stipulation need be filed only if the Attorney General believes the development of a factual record in district court would be more than “minimal” or if this Court happens to perceive some factual issues. Rather, it says that the certification or stipulation “shall” be filed. Period. 23 ¶43 Lastly, when the parties fail to abide by this requirement, as is the case here, this Court’s only course of action is statutorily mandated: If the parties to an original proceeding under subsection (3)(a) fail to make the certification or stipulation required by subsection (3)(b)(i), the supreme court shall refer the proceeding to the district court in the county of residence of the lead petitioner for development of a factual record and an order that addresses the issues provided in 13-27-316(3). Section 3-2-202(3)(b)(ii), MCA (emphasis added). Honoring this unambiguous statutory mandate, we are required to refer this proceeding to a district court for the purposes stated in § 3-2-303(3)(b)(ii), MCA.
+¶44 As a practical matter, if this proceeding were referred to a district court, there would not be time to resolve MCFA’s and Harrington’s challenges before the Secretary of State’s August 19, 2010 deadline for certifying the candidates and ballot issues for the November 2 ballot. See § 13-12-201(1), MCA. To get around this problem, the Court declares that § 3-2-202, MCA, does not apply to these cases. ¶45 The first obvious problem with this approach is that if § 3-2-202, MCA, does not apply to these cases, then we do not have jurisdiction. As noted, § 3-2-202(3), MCA, is the statute which purports to confer “original jurisdiction” on this Court to review ballot statements. No other provision does so. The Court asserts that § 13-27-316(5), MCA, “endows” this Court with “original jurisdiction” to hear challenges to ballot statements, but this is pure fantasy. Section 13-27-316(5), MCA, states: An original proceeding in the supreme court under this section is the exclusive remedy for a challenge to the petitioner’s ballot statements, as 24 approved by the attorney general, or the attorney general’s legal sufficiency determination. A ballot issue may not be invalidated under this section after the secretary of state has certified the ballot under 13-12-201. It is self-evident that this is not an affirmative “endowment” of jurisdiction. Rather, it is a reference to the “original proceeding” which is established by the grant of “original jurisdiction” in § 3-2-202(3), MCA. ¶46 The second problem with the Court’s approach is that it involves a blatant remaking of Harrington’s and MCFA’s challenges. Again, this Court “has original jurisdiction to review [1] the petitioner’s ballot statements for initiated measures and [2] the attorney general’s ballot statements for referred measures and [3] the attorney general’s legal sufficiency determination in an action brought pursuant to 13-27-316.” Section 3-2-202(3)(a), MCA. Focusing on the third category, the question becomes whether Harrington and MCFA challenge the Attorney General’s “legal sufficiency” determination and whether their action is brought pursuant to § 13-27-316, MCA. Section 13-27-316(2), MCA, states: If the opponents of a ballot issue believe that the petitioner ballot statements approved by the attorney general do not satisfy the requirements of 13-27-312 or believe that the attorney general was incorrect in determining that the petition was legally sufficient, they may, within 10 days of the date of certification to the governor that the completed petition has been officially filed, file an original proceeding in the supreme court challenging the adequacy of the statement or the attorney general’s determination and requesting the court to alter the statement or overrule the attorney general’s determination concerning the legal sufficiency of the petition. . . . 25 ¶47 The Court concedes that Harrington and MCFA “challenge the ballot statements and Attorney General’s legal sufficiency determination for I-164 under § 13-27-316, MCA.” In this regard, “legal sufficiency” is defined as follows: As used in this part, “legal sufficiency” means that the petition complies with statutory and constitutional requirements governing submission of the proposed issue to the electors. Review of the petition for legal sufficiency does not include consideration of the substantive legality of the issue if approved by the voters. Section 13-27-312(7), MCA (emphasis added). One of the so-called “statutory . . . requirements governing submission of the proposed issue to the electors” is set forth in subsection (4) of the same statute: “The ballot statements must express the true and impartial explanation of the proposed ballot issue in plain, easily understood language and may not be arguments or written so as to create prejudice for or against the issue.” Section 13-27-312(4), MCA. The Attorney General is specifically instructed to ensure that this “statutory requirement” is met. See § 13-27-312(1), MCA (“[T]he attorney general . . . shall determine whether the ballot statements comply with the requirements of this section.”). Here, Harrington and MCFA challenge the Attorney General’s determination that I-164’s statement of purpose, fiscal statement, and statements of implication are legally sufficient under § 13-27-312(4), MCA. Thus, Harrington and MCFA do, in fact, challenge the Attorney General’s determination that the petition complies with the “requirements governing submission of the proposed issue to the electors.” 26 ¶48 According to the Court, however, Harrington and MCFA raise an improper challenge to the “substantive legality” of I-164, rather than to the Attorney General’s determination of legal sufficiency. This is an outright fabrication. Indeed, the Court cannot point to a single sentence in MCFA’s petition or Harrington’s petition challenging the “substantive legality” of I-164. They do not contend that I-164, if approved by the voters, would constitute a taking of property without just compensation. They do not contend that I-164, if approved by the voters, would violate the Equal Protection Clause. They do not contend that I-164, if approved by the voters, would deprive lenders of property without due process of law. They do not contend that I-164, if approved by the voters, would constitute unconstitutional special legislation. In short, neither MCFA nor Harrington lodges any challenge whatsoever to “the substantive legality of [I-164] if approved by the voters.” Section 13-27-312(7), MCA. ¶49 Rather, their petitions clearly and unmistakably challenge the Attorney General’s determination that the ballot statements comply with the statutory requirements governing submission of I-164 to the electors. The first sentence of MCFA’s Summary of Argument states: MCFA contends that I-164’s ballot statements do not meet the requirements of section 13-27-312, MCA. As a result, the statements do not meet the statutory requirements for submitting the proposed issue to the electors. And the first sentence of MCFA’s analysis beginning on page 6 of its petition states: MCFA initiated this original proceeding pursuant to section 13-27-316, MCA, for the purpose of challenging the adequacy of I-164’s ballot statements. 27 MCFA then goes on, over four pages, to explain why, in its view, the ballot statements do not satisfy § 13-27-312(4), MCA. Finally, at the conclusion of its argument, MCFA asks this Court to find that I-164 ballot statements do not meet the requirements of section 13-27-312, MCA, and consequently do not meet the statutory requirements for submitting the proposed issue to the electors, and overrule any determination that the ballot issue is legally sufficient. Harrington’s petition is to the same effect. He states: This is an action for judgment arising from the manner in which the Office of the Attorney General of the State of Montana, erroneously prepared and approved statements and made a legal sufficiency determination for a ballot initiative, I-164 . . . . Harrington further asserts that the statement of purpose, fiscal statement, and statements of implication approved by the Attorney General do not meet the requirements of § 13-27-312(4), MCA—i.e., they do not “express the true and impartial explanation of the proposed ballot issue in plain, easily understood language,” and they are “written so as to create prejudice for . . . the issue.” Harrington then goes on to propose alternate ballot statements, something he would not have to bother with if he were truly raising a challenge to the “substantive legality” of the measure as the Court claims. See § 13-27-316(3)(b), MCA (“If the proceeding requests modification of ballot statements, an action brought under this section must state how the petitioner’s ballot statements approved by the attorney general do not satisfy the requirements of 13-27-312 and must propose alternate ballot statements that satisfy the requirements of 13-27-312.” (emphasis added)). 28 ¶50 Even the Court concedes elsewhere in its Order that MCFA and Harrington “invoke this Court’s original jurisdiction to challenge the Attorney General’s legal sufficiency determination and ballot statements for Initiative No. 164” and that MCFA and Harrington “challenge the ballot statements and Attorney General’s legal sufficiency determination for I-164 under § 13-27-316, MCA.” Indeed, if their challenges were to the substantive legality of I-164, and not to the Attorney General’s determination under § 13-27-312(7), MCA, that “the petition complies with statutory and constitutional requirements governing submission of the proposed issue to the electors,” then there would be no need to rewrite the ballot statements, as the Court does. ¶51 Accordingly, these cases fall squarely within the third category of § 3-2-202(3)(a), MCA. Yet, the parties have failed to make the certification or stipulation required by § 3-2-202(3)(b)(i), MCA. Consequently, this Court is required to refer this proceeding to a district court. The Court’s refusal to do so only demonstrates that it is willing to ignore statutory mandates and to distort Petitioners’ arguments in order to reach a desired result.",jurisdiction
+744,6348604,1,3,"The court’s failure to issue an order pursuant to § 60-6,197.01 when imposing the 2010 sentence is something McAleese 5 State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018). See State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021). 6 State v. Chojolan, 288 Neb. 760, 851 N.W.2d 661 (2014). - 247 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. McALEESE Cite as 311 Neb. 243 could have brought to the attention of the county court at the time of sentencing or could have assigned as error on direct appeal. 7 He did neither. Instead, 9 years after his criminal judgment became final, McAleese filed a motion asking the sentencing court to reopen his criminal case, vacate his sentence, and impose a “corrected” sentence. McAleese directs us to no statutory authority for such a motion, and we are aware of none. [3-5] We have long recognized the general rule that where a criminal procedure is not authorized by statute, it is unavailable to a defendant in a criminal proceeding. 8 And we have said that when an unauthorized motion is filed in a criminal case, the court lacks subject matter jurisdiction to adjudicate it. 9 Similarly, we have said that when a collateral attack on 7 See, e.g., State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013) (defendant convicted of driving under influence, third offense, assigns error to sen­ tencing order that required ignition interlock device and continuous alcohol monitor during 15-year license revocation); State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008) (State files error proceeding to challenge sen­ tencing court’s failure to impose 15-year license revocation as required by statute when sentencing one convicted of operating vehicle during period of revocation). 8 See, State v. Melton, 308 Neb. 159, 953 N.W.2d 246 (2021) (holding post­ judgment motion to modify nonprobationary sentence is not authorized by criminal procedure statutes and thus is not available in criminal pro­ ceeding); State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005) (holding court lacked jurisdiction over postjudgment motion to vacate death sen­ tence because motion not statutorily authorized and same relief could be requested in legislatively authorized procedure such as postconviction motion); State v. Louthan, 257 Neb. 174, 186, 595 N.W.2d 917, 925 (1999) (holding Legislature “has not enacted a procedure for asserting second-tier challenges to prior plea-based [driving under the influence] convictions, and thus, unless such a procedure is constitutionally mandated, it ‘is unauthorized and, therefore, unavailable under Nebraska criminal procedure’”); State v. Miller, 240 Neb. 297, 481 N.W.2d 580 (1992) (holding motions for judgment notwithstanding the verdict allowed in civil proceedings, but unauthorized in criminal proceedings). 9 See, Melton, supra note 8; Dunster, supra note 8; Miller, supra note 8. - 248 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. McALEESE Cite as 311 Neb. 243 a criminal judgment is not raised in a recognized proceeding, the court lacks jurisdiction over the claim. 10 Here, the county court concluded that it lacked “legal authority” to reopen the criminal case or vacate and correct the sentence, and on that basis, it denied the motion. On appeal, the district court agreed that the county court lacked jurisdiction to vacate and correct McAleese’s sentence, which had long ago become a final judgment, and therefore, it affirmed the county court’s order denying the motion. We likewise conclude the county court lacked subject matter jurisdiction to adjudicate the motion filed by McAleese, as there is no recognized criminal procedure which authorizes a sentencing court to reopen a criminal case after the judgment has become final in order to vacate and correct an alleged sentencing error. Whether McAleese’s motion is viewed as an unauthorized motion to modify a sentence 11 or as an unauthorized collateral attack on his criminal judgment, 12 the sentencing court had no subject matter jurisdiction to adjudicate the motion, and the district court did not err in affirming the county court’s order based on a lack of jurisdiction. For the sake of completeness, we note that McAleese contends that his 2010 sentence was “void, at least in part, due to its failure to comply with . . . § 60-6,197.01.” 13 We soundly reject this characterization. [6] It is well-established that a criminal judgment is void when the court rendering it lacks jurisdiction or a legal basis 10 State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014). See Dunster, supra note 8. 11 See, e.g., State v. Irish, 298 Neb. 61, 902 N.W.2d 669 (2017) (holding district court correctly determined it lacked jurisdiction to consider defend­ ant’s postjudgment motion seeking to reduce license revocation period in sentencing order). 12 See State v. Barnes, 303 Neb. 167, 927 N.W.2d 64 (2019) (affirming denial of 2018 motion requesting jail credit on 1994 sentence, because district court had no statutory authority to consider collateral attack on sen­tence which was erroneous but not void). 13 Brief for appellant at 15. - 249 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. McALEESE Cite as 311 Neb. 243 to impose judgment. 14 Here, there is no dispute that in 2010, the sentencing court had jurisdiction over McAleese and had subject matter jurisdiction over the crime for which he was sentenced. The alleged sentencing error raised by McAleese does not pertain in any respect to the court’s jurisdiction to impose the sentence. Instead, it involves only the court’s failure to issue an order pursuant to § 60-6,197.01 when it imposed the sentence. This alleged error or irregularity is not one which rendered the judgment and sentence void, 15 and McAleese’s claim to the contrary is meritless. 14 See Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016). See, also, Gray v. Kenney, 290 Neb. 888, 863 N.W.2d 127 (2015); Peterson v. Houston, 284 Neb. 861, 824 N.W.2d 26 (2012); Rehbein v. Clarke, 257 Neb. 406, 598 N.W.2d 39 (1999); In re Carbino, 117 Neb. 107, 219 N.W. 846 (1928); Keller v. Davis, 69 Neb. 494, 95 N.W. 1028 (1903); In re Ream, 54 Neb. 667, 75 N.W. 24 (1898). 15 See, Barnes, supra note 12, 303 Neb. at 170, 927 N.W.2d at 67 (explaining “[a] sentence outside of the period authorized for a valid crime is errone­ ous only; it is not a void sentence” and “failing to give credit for time served, while erroneous, does not render the sentence void”); State v. Ratumaimuri, 299 Neb. 887, 911 N.W.2d 270 (2018) (finding incorrect determination that Sex Offender Registration Act applies is error that does not void application of act); Meyer v. Frakes, 294 Neb. 668, 676, 884 N.W.2d 131, 138 (2016) (holding “failure by the court to impose a sentence inside of the mandatory statutory limits for a valid crime is erroneous only; it is not a void sentence subject to collateral attack”); State v. Woodruff, 205 Neb. 638, 641, 288 N.W.2d 754, 757 (1980) (“[a] sentence to imprisonment which exceeds the maximum statutory period is merely erroneous and not void”); Hickman v. Fenton, 120 Neb. 66, 231 N.W. 510 (1930) (sentence for less than minimum prescribed by statute is erroneous, but not void); McElhaney v. Fenton, 115 Neb. 299, 212 N.W. 612 (1927) (sentence in excess of statutory period was erroneous, but not void); In re Fanton, 55 Neb. 703, 76 N.W. 447 (1898) (same). See, also, State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006) (sentence imposed pursuant to unconstitutional statute is erroneous, but not void); State v. Conover, 270 Neb. 446, 703 N.W.2d 898 (2005) (same); State v. Rouse, 206 Neb. 371, 381, 293 Neb. 83, 89 (1980) (explaining that “[a]n indeterminate sentence imposed for a crime, where not authorized by statute, is erroneous but not void”); State v. Alford, 6 Neb. App. 969, 578 N.W.2d 885 (1998) (same). - 250 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. McALEESE Cite as 311 Neb. 243",analysis
+745,1377506,1,2,"There are two basic issues to be addressed in this case. One, whether West Virginia recognizes Dissociative Identity Disorder as a basis for an insanity defense, and, two, whether Dr. Coffey should have been permitted to testify regarding this condition in Mr. Lockhart's trial. The question of whether West Virginia recognizes Dissociative Identity Disorder as a basis for an insanity defense presents a question of law which is reviewed de novo by this Court. See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). The circuit court's decision whether to allow expert witness testimony during a trial is reviewed for an abuse of discretion: The admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it is clearly wrong. Syllabus Point 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S.Ct. 301, 116 L.Ed.2d 244 (1991). Syl. pt. 1, West Virginia Div. of Highways v. Butler, 205 W.Va. 146, 516 S.E.2d 769 (1999). See also Syl. pt. 2, Morris v. Boppana, 182 W.Va. 248, 387 S.E.2d 302 (1989) ( `Under W. Va. R. Evid. 702, a trial judge has broad discretion to decide whether expert testimony should be admitted, and where the evidence is unnecessary, cumulative, confusing or misleading the trial judge may properly refuse to admit it.' Syllabus point 4, Rozas v. Rozas, 176 W.Va. 235, 342 S.E.2d 201 (1986).). With due consideration for these standards, we now address the issues raised in this appeal.",standard of review
+746,1806535,1,3,"The test of whether the evidence is sufficient to sustain a verdict is whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true. Lock v. State (1966), 31 Wis. 2d 110, 114, 142 N. W. 2d 183; State v. Spring, ante, p. 333, 179 N. W. 2d 841. We have examined the record and have come to the conclusion the evidence is sufficient to sustain the jury's verdict that Cassel endangered the safety of Hundt by conduct regardless of life. Each of the three elements of this crime was adequately proved: (1) The conduct was imminently dangerous to another; (2) the conduct was of such a character it evinced a depraved mind regardless of human life; and (3) such conduct did endanger the safety of another. See State v. Dolan (1969), 44 Wis. 2d 68, 73, 170 N. W. 2d 822. Cassel's argument seems to be that the shot he fired struck the automobile and not Officer Hundt and therefore his conduct was not imminently dangerous and did not endanger the safety of Hundt. The facts on this issue were in dispute. Cassel said the gun went off accidentally in the car and hit the windshield. Hundt testified Cassel shot at him but hit the car. The chip out of the windshield is from the outside, not the inside, and the jury believed and had a right to believe the testimony of the officer. True, Cassel was a poor marksman but if his marksmanship had been any better he might have been charged with murder.",sufficiency of the evidence
+747,1959936,1,3,"
+Card argues that Judge Costello, the resentencing judge, improperly denied his motion for recusal because she incorrectly applied the recusal standard for a successor judge when she should have applied the more liberal standards for recusal that apply to an initial judge. There is no question in this case that there was a prior recusal of the first judge. However, Card and the State dispute whether Card's motion to recuse Judge Costello constituted a first or successive recusal motion for purposes of Florida Rule of Judicial Administration 2.160, because the prior judge recused himself sua sponte after denying Card's motion to recuse based on a finding that the allegations for recusal were not legally sufficient. [4] The standards for recusal vary in that in an initial motion, the judge passes only on the legal sufficiency of the allegations and not on the truth of the facts, whereas, a successor judge may pass on the truth of the facts alleged in support of the motion and need only be disqualified if he or she is in fact not fair or impartial. Fla. R. Jud. Admin. 2.160(f). In this case, Card does not claim that the trial judge was actually partial. Moreover, we note that the entire motion to disqualify was based on an alleged consultation between a potential State witness, Debra King, and Judge Costello that took place prior to the time Judge Costello became a circuit court judge. However, King never testified at trial. Therefore, the potential basis for recusal never even materialized. We do not reach the issue of whether in fact Judge Costello properly applied the standards for recusal as a successor judge because we conclude that Card waived any objection on this basis by not raising it at the time Judge Costello ruled on the motion as a successor judge or when the order was entered prior to the commencement of trial. [5] Defense counsel claims that the specific objection was preserved by raising it in a motion for new trial. However, had defense counsel disputed Judge Costello's status as a successor judge, it was incumbent on him to bring it to the trial judge's attention at the time the order denying the motion for recusal was entered prior to the commencement of trial, rather than waiting until the trial was over and the death penalty imposed. Accordingly, we deny Card relief on this claim.
+Card next asserts that the State's closing argument was permeated with improper and inflammatory comment that tainted the jury's recommendation and rendered the sentencing proceeding fundamentally unfair. Card admits that although defense counsel objected to some of the State's improper arguments, defense counsel did not object to others. Nevertheless, Card contends that the cumulative effect of the objected-to and unobjected-to comments deprived Card of a fair penalty phase hearing.
+We first examine the arguments that Card properly preserved for appellate review. The prosecutor argued that the jury should not recommend a life sentence because there was no guarantee that Card actually would be imprisoned for life, stating: And there is nobody [that] can say that life is going, that he is going to serve a life sentence. No one can guarantee you that. No one can predict that. Defense counsel objected and moved for a mistrial. The trial court denied the motion for a mistrial but sustained the objection and provided jurors with a curative instruction, informing them to disregard the prosecutor's comments and that there is no parole. There is no early release from the sentence on a life sentence. In addition, the jurors were instructed that life without the possibility of parole meant life, natural life of a person, no parole. Card also objected to the prosecutor's argument pertaining to the victim impact testimony in which the prosecutor stated: One other thing, and the law that the judge is really not going to give you much instruction on it and that's victim impact evidence. It doesn't fit in this formula and there is no way that you can weigh it. But I suggest to you that you can.... Defense counsel immediately objected to this argument, stating that the prosecutor was inviting jurors to weigh something that is not an aggravating factor, is not under the statute ... he is inviting them to weigh it. Defense counsel also renewed his motion for a mistrial that he initially made following the State's improper argument that Card may not spend the rest of his life in prison if jurors recommended a life sentence. The trial court denied the renewed motion for a mistrial, but directed the State not to invite jurors to weigh victim impact evidence and to be careful not to imply that they should weigh it. Card also contends that the prosecutor improperly appealed to the jury's fears and emotions by referring to the jury as the conscience of the community: [I]n light of all of the other circumstances, the aggravating and the mitigating and when you're through [in weighing the evidence] you will not only be justified but warranted in recommending a sentence of death against this man for that heinous, atrocious and cruel, pitiless, vile, wicked premeditated robbery, kidnapping and murder. You are the conscience of this community —. (Emphasis supplied.) Defense counsel immediately objected and requested a mistrial, stating, He cannot make the conscience of the community argument. He is trying to provoke a mistrial in this case.... That has been held many times to be an inappropriate closing argument. The trial court denied defense counsel's motion for a mistrial, stating, It is the old send a message speech that is a problem so I don't find anything objectionable regarding the conscience of the community argument. In reviewing Card's closing argument claims, we must determine whether the trial court abused its discretion in denying Card's motions for mistrial. See Goodwin v. State, 751 So.2d 537, 546 (Fla. 1999). As this Court has stated, a trial court should grant a mistrial only when it is necessary to ensure that the defendant receives a fair trial. Id. at 547. Having reviewed the prosecutor's arguments, we conclude that the trial court did not abuse its discretion in failing to grant a mistrial with respect to the prosecutor's comments. See Goodwin, 751 So.2d at 546. Although the prosecutor's comments pertaining to whether Card actually would serve a life sentence [6] and informing jurors that they could weigh the victim impact evidence as aggravation [7] were improper, the trial court sustained defense counsel's objections and, in the case of the comments pertaining to whether Card would actually serve a life sentence, gave specific curative instructions. With regard to the conscience of the community argument, we find that this does not amount to reversible error. The prosecutor's reference to the term was isolated and the prosecutor did not continue with the argument after the defense lawyer made an objection. Thus, given the context of the prosecutor's limited reference to the phrase conscience of community during closing argument in the penalty phase of a death penalty case where the jury is charged with determining the sentence, we hold that the trial court did not abuse its discretion in refusing to grant a mistrial, as the comments were not so prejudicial as to vitiate the entire trial. Accordingly, we deny relief on this claim.
+As a general rule, the failure to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review. See, e.g., Brooks v. State, 762 So.2d 879, 898 (Fla. 2000); McDonald v. State, 743 So.2d 501, 505 (Fla.1999). A timely objection allows the trial court an opportunity to give a curative instruction or to admonish counsel for making an improper argument. See Nixon v. State, 572 So.2d 1336, 1341 (Fla. 1990). The exception to the contemporaneous objection rule is where the unobjected-to comments rise to the level of fundamental error, which has been defined as error that reaches down into the validity of the trial itself to the extent that a verdict of guilty or jury recommendation of death could not have been obtained without the assistance of the alleged error. See McDonald, 743 So.2d at 505 (quoting Urbin, 714 So.2d at 418 n. 8); Chandler v. State, 702 So.2d 186, 191 n. 5 (Fla.1997) (holding that for an error to be raised for the first time on appeal, the error must be so prejudicial as to vitiate the entire trial). Having reviewed the unobjected-to comments made by the prosecutor in this case, we conclude that none of these comments constitute fundamental error. We also have carefully reviewed the entire closing argument with specific attention to the objected-to arguments and the unobjected-to arguments that Card now contends were improper. We do not examine allegedly improper comments in isolation. Rather, the Court examines the totality of the errors in the closing argument and determines whether the cumulative effect of the numerous improprieties deprived the defendant of a fair penalty phase hearing. See Muhammad v. State, 782 So.2d 343, 361 (Fla.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 87, 151 L.Ed.2d 49 (2001); Brooks, 762 So.2d at 899; Ruiz v. State, 743 So.2d 1, 7 (Fla. 1999); Gore v. State, 719 So.2d 1197, 1203 (Fla.1998). Upon consideration of the State's remarks made during the State's penalty phase closing argument, taken both individually and collectively, we conclude that Card is not entitled to a new resentencing proceeding. In the present case, although the prosecutor crossed the line of proper advocacy during closing argument, defense counsel failed to object to the majority of the improper arguments. Moreover, when the prosecutor engaged in improper argument and defense counsel objected, other than the conscience of the community argument, the trial court sustained the objections and, with regard to the comments pertaining to whether Card would actually serve a life sentence, appropriately cautioned the jury. Further, the trial court found five aggravating circumstances, including CCP and HAC, two of the most serious aggravators set out in the statutory sentencing scheme, Larkins v. State, 739 So.2d 90, 95 (Fla.1999), no statutory mitigation, and insignificant nonstatutory mitigating circumstances. Accordingly, we hold that closing argument errors did not compromise the integrity of the judicial process and did not deprive Card of a fair penalty phase hearing. Therefore, we deny relief on Card's closing argument claims.
+In the present case, the trial court instructed the jury on the following four aggravating circumstances and found that they were established by the evidence: CCP, HAC, avoiding or preventing a lawful arrest, and pecuniary gain. Card contends that the trial court erred both in instructing the jury on these aggravators and in finding these aggravators. We disagree.
+We reject Card's claim that the trial court erred in finding and weighing CCP, as this Court already considered and denied this claim in Card's initial direct appeal. [8] See Card, 453 So.2d at 23. At Card's resentencing proceeding, the State presented the same evidence with regard to this aggravating circumstance that was presented at Card's initial sentencing proceeding. Because no new evidence was presented after the remand, we reach the same conclusion based upon our review of the new record on resentencing—that the trial court did not err in finding the CCP aggravating circumstance. [9] See also Reese v. State, 768 So.2d 1057, 1059 (Fla.2000) (denying defendant's challenge to the CCP aggravator on the ground that [b]ecause no new evidence was presented after the remand in the present case, nothing has changed since this Court's previous affirmance of CCP). Accordingly, we deny relief on this claim. We also reject Card's related claim that the trial court erred in denying his request that the trial court give the following special jury instruction pertaining to CCP: Heightened level of planning a robbery, even if it does exist, does not establish a heightened premeditation for murder. The decision on whether to give a particular jury instruction is within the trial court's discretion, and, absent prejudicial error, such decisions should not be disturbed on appeal. Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990); see Alston v. State, 723 So.2d 148, 159 (Fla. 1998) (holding trial court did not abuse its discretion in denying defendant's request for a special jury instruction); James v. State, 695 So.2d 1229, 1236 (Fla.1997) (stating that a trial court has wide discretion in instructing the jury and that the court's rulings on the instructions given to the jury are reviewed with a presumption of correctness). In the present case, the trial court gave jurors the standard CCP instruction, and we hold that the trial court did not abuse its discretion in denying Card's request for an alternative jury instruction.
+This Court has held that a finding of HAC is proper only in torturous murders—those that evince extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another. Brown v. State, 721 So.2d 274, 277 (Fla.1998). The HAC aggravator focuses on the means and manner in which death is inflicted and the immediate circumstances surrounding the death. Id. As in Rogers v. State, 783 So.2d 980, 994 (Fla.2001), this Court has upheld the HAC aggravator in numerous cases where the victim suffered multiple stab wounds, none of which caused instantaneous death, and the victim proceeded to bleed to death. See also Mahn v. State, 714 So.2d 391, 399 (Fla. 1998); Williamson v. State, 681 So.2d 688, 698 (Fla.1996); Finney v. State, 660 So.2d 674, 685 (Fla.1995). In the present case, the trial court found that the following facts supported the HAC aggravator: The defendant entered the Western Union run by Ms. Franklin and her family. The defendant armed himself with a knife, attacked Ms. Franklin and while she attempted to restrain him and defend herself, the fingers on both of her hands were severely cut. Her hands were bleeding, several fingers on her right hand were almost completely severed from her hand and her blouse was torn. While suffering from the shock of the loss of blood and the pain from the cuts, Ms. Franklin was forced into a car and driven eight miles to an isolated area and forced to leave the car. Although she was promised she would not be harmed further, the defendant approached her from behind, grabbed her hair, pulled her head back and slit her throat. The cut to the throat was two and one-half inches deep. It also severed her windpipe and her esophagus and even cut into the bone itself. The defendant stood over her watching her bleed. The crime was particularly wicked and vile because Ms. Franklin knew her attacker, had to suffer during the long drive from the wounds to her hands and must have been traumatized and terrorized during this whole process. She was grabbed from behind and suffered the final vicious attack by this defendant. The defendant told Vicki Elrod that he even enjoyed it. We hold that there is competent substantial evidence in the record to support the trial court's instruction and finding of HAC. See Bates v. State, 750 So.2d 6, 18 (Fla.1999); Cave v. State, 727 So.2d 227, 229 (Fla.1998); Preston v. State, 607 So.2d 404, 410 (Fla.1992).
+The facts supporting commission of murder to avoid arrest must focus on the defendant's motivation for the crime. See Rodriguez v. State, 753 So.2d 29, 48 (Fla.2000). In order to establish that the murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, the evidence must prove beyond a reasonable doubt that the sole or dominant motive for the killing was to eliminate a witness. See Zack v. State, 753 So.2d 9, 20 (Fla.2000); Consalvo v. State, 697 So.2d 805, 819 (Fla.1996). Mere speculation on the part of the State that witness elimination was the dominant motive behind a murder cannot support the avoid arrest aggravator. See Consalvo, 697 So.2d at 819. Likewise, the mere fact that the victim knew and could identify the defendant, without more, is insufficient to prove this aggravator. Id. This Court repeatedly has affirmed the finding of the avoiding arrest aggravator in cases where the victim is transported to another location and then killed. Jones v. State, 748 So.2d 1012, 1027 (Fla.1999) (upholding application of the avoiding arrest aggravator where the defendant robbed the victim at an ATM card machine and subsequently took the victim to a remote, wooded area and killed her); see also Preston, 607 So.2d at 406, 409 (upholding the trial court's findings of the avoiding arrest aggravating circumstance where the defendant robbed and kidnapped a victim from a convenience store and transported her to a remote location where he stabbed her); Swafford v. State, 533 So.2d 270, 276 (Fla. 1988) (upholding application of avoid arrest aggravator where defendant robbed gas station then took attendant to a remote area where he raped and shot her); Cave v. State, 476 So.2d 180, 188 (Fla.1985) (upholding aggravator where victim was kidnapped from a store and taken thirteen miles to a rural area where she was robbed and killed). In the present case, the trial court relied on the following facts to support a finding of this aggravating circumstance: (1) the defendant was acquainted with the victim and, in fact, he had sent her an Easter card that was still on the wall of her office in June when this robbery and murder occurred; (2) after attacking and robbing the victim at the Western Union, Card kidnapped the victim and drove her to a secluded area eight miles away where he slashed her throat; and (3) in committing his crimes, Card wore gloves and was not wearing a mask. We conclude that there is competent substantial evidence in the record to support the aggravator that Card committed murder to eliminate the only witness to his crimes. See Jones, 748 So.2d at 1027; Preston, 607 So.2d at 406, 409; Swafford, 533 So.2d at 276; Cave, 476 So.2d at 188; Card, 453 So.2d at 24. Therefore, we affirm the trial court's findings with regard to this aggravating circumstance.
+Card contends that the trial court erred in applying the pecuniary gain aggravating circumstance in this case. Card claims that the pecuniary gain aggravator is only applicable where the State proves that pecuniary gain was the sole or dominant motive in the murder. Thus, Card argues that in this case it is inconsistent to apply both the pecuniary gain and the avoiding arrest aggravator, which requires the State to demonstrate that the motive for the killing was to eliminate a witness. We rejected this claim on Card's initial direct appeal and, again, hold that it is proper for a trial court to utilize both the pecuniary gain and avoiding arrest aggravators in the same case. See Thompson v. State, 648 So.2d 692, 695 (Fla.1994); Card, 453 So.2d at 24. Accordingly, because Card stole $1,197 from the Western Union office and used some of the proceeds to repay a debt owed to Vicky Elrod, we hold that there is competent substantial evidence in the record to support the pecuniary gain aggravating circumstance.
+Card contends that the trial court failed to satisfy the dictates of Campbell v. State, 571 So.2d 415 (Fla.1990), because it failed to consider and weigh all of the evidence relating to the establishment of mitigating circumstances, including: (1) the expert testimony pertaining to the permanent negative consequences that resulted from Card's childhood; (2) Card's poor school performance; (3) the support of Card's friends and family; (4) Card's efforts to improve himself in prison by obtaining his GED; (5) the expert testimony that Card's good behavior as a prisoner would continue if Card was given a life sentence; and (6) Card's lack of a history of committing violent crimes. Reviewing the trial court's sentencing order, the trial court found and weighed the following mitigating circumstances: (1) Card's difficult family background (some weight); (2) Card's good prison record (slight weight); (3) Card is religious and practices Catholicism (some weight); (4) Card was abused as a child (some weight); (5) Card served in the military and had a good military record (some weight); (6) Card's artistic abilities (little weight); and (7) Card corresponded with school children to deter them from being involving in crime (some weight). Card is correct that in the trial court's sentencing order, it did not independently find and weigh the mitigating factors pertaining to Card's poor school performance and his obtaining his GED while in prison. However, having reviewed defense counsel's penalty phase closing argument and the Spencer [10] hearing, these mitigators were not proposed to the trial court as independent mitigating circumstances. Rather, defense counsel argued these mitigating factors as facts or evidence to support other mitigating circumstances. For example, defense counsel argued that the fact that Card obtained his GED in prison was evidence that Card adjusted well to prison life. The trial court considered Card's good prison record in mitigation. Defense counsel also argued that Card did not perform well in school in conjunction with arguing that Card had a difficult childhood and family environment. The trial court found and weighed evidence of Card's family background and childhood abuse in mitigation. Moreover, contrary to Card's assertions, it is evident from the trial court's sentencing order that the trial court relied on the testimony from Dr. Haley to support the mitigating circumstances pertaining to Card's family background, childhood abuse, and good prison record. We agree with Card that the trial court erred in failing to find and weigh evidence that Card had the support of his friends and family and his lack of a history of committing violent crimes. See Burns v. State, 699 So.2d 646, 654 (Fla. 1997) (stating that the defendant's family relationships and the support he provided his family are admissible as nonstatutory mitigation); Brown v. State, 755 So.2d 616, 637 (Fla.2000) (trial court considered defendant's nonviolent criminal record as a nonstatutory mitigating circumstance). However, we hold that any error on the trial court's part in failing to consider these mitigating circumstances constitutes harmless error. See Singleton v. State, 783 So.2d 970, 977 (Fla.2001) (holding that trial court's error in failing to address nonstatutory mitigation was harmless because the mitigators would not outweigh the aggravation in the case); Bates v. State, 750 So.2d 6, 13 (Fla.1999) (holding trial court's failure to consider nonstatutory mitigation constituted harmless error); Wuornos v. State, 644 So.2d 1000, 1011 (Fla.1994) (same); Wickham v. State, 593 So.2d 191, 194 (Fla.1991) (same). In the present case, the trial court found five aggravators: (1) CCP; (2) HAC; (3) avoiding or preventing a lawful arrest; (4) pecuniary gain; and (5) murder committed during the commission of a kidnapping. In mitigation, the trial court did not find any statutory mitigation but found and weighed Card's difficult family background, good prison record, his religious beliefs, childhood abuse, good military record, artistic abilities, and correspondence with school children. Having considered all the mitigating evidence in the record, including the mitigators that Card claims the trial court overlooked, we conclude that the mitigating evidence would not outweigh the strong case for aggravation. Any error in not weighing additional nonstatutory mitigating evidence could not reasonably have resulted in a lesser sentence. Accordingly, we deny Card relief on this claim.
+Card contends that the State introduced impermissible victim impact testimony and argues that such testimony rendered the sentencing decision fundamentally unfair. Card challenges the testimony given by the victim's granddaughter, Courtney Brimmer, at the Spencer hearing, [11] and the testimony of the victim's husband, Ed Franklin, and daughter, Cindy Brimmer, introduced during the resentencing proceeding. [12] Section 921.141(7), Florida Statutes (1999), allows the State to introduce victim impact evidence, which shows the victim's uniqueness as an individual human being and the resultant loss to the community's members by the victim's death. Damren v. State, 696 So.2d 709, 713 (Fla. 1997) (quoting section 921.141(7), Florida Statutes (1993)); see Bonifay v. State, 680 So.2d 413, 419 (Fla.1996); Windom v. State, 656 So.2d 432, 438 (Fla.1995); see also Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). There are certain limits to the introduction of victim impact testimony. Witnesses providing victim impact testimony are prohibited from giving characterizations and their opinions about the crime. See § 921.141(7) (Characterizations and opinions about the crime, the defendant, and the appropriate sentence shall not be permitted as a part of victim impact evidence.); Payne, 501 U.S. at 826-27, 111 S.Ct. 2597. Although Courtney Brimmer's testimony exceeded the proper bounds of victim impact evidence because she commented on the defendant and the crime and provided her opinion as to a proper punishment, defense counsel failed to contemporaneously object to her testimony. Thus, this issue was not preserved for review and would not constitute fundamental error because the testimony came during the Spencer hearing and outside the presence of the jury. In addition, having reviewed the testimony of Ed Franklin and Cindy Brimmer, we conclude that neither witness provided improper victim impact testimony in violation of section 921.141(7). Accordingly, we deny relief on this claim.
+We hold the following claims are without merit: (1) in light of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the trial court erred in denying Card's motion to require a unanimous jury verdict for the death penalty; [13] (2) the standard jury instructions that refer to the jury as advisory and that refer to the jury's verdict as a recommendation violate Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); [14] (3) the trial court erred in not allowing Card's family members to comment on the effect that Card's execution would have on their lives; [15] (4) the CCP, HAC, avoiding arrest, pecuniary gain, and murder committed during the course of a felony aggravating circumstances are overbroad, vague, and fail to narrow the class of persons eligible for the death penalty; [16] and (5) the trial court erred in precluding Card from introducing evidence that Card had received life sentences for his crimes of robbery and kidnapping. [17]
+Finally, Card challenges the proportionality of his death sentence. In deciding whether death is a proportionate penalty, the Court must consider the totality of the circumstances of the case and compare the case with other capital cases to determine if the death penalty is the appropriate penalty. See Urbin v. State, 714 So.2d 411, 416 (Fla.1998). A review of pertinent case law reveals that the death sentence constitutes an appropriate penalty in this case and is proportionate to other cases in which we have approved the imposition of the death penalty. See Zack v. State, 753 So.2d 9, 26 (Fla.2000); Knight v. State, 746 So.2d 423, 437 (Fla.1998); Gordon v. State, 704 So.2d 107, 117 (Fla. 1997); Cole v. State, 701 So.2d 845, 856 (Fla.1997); Lott v. State, 695 So.2d 1239, 1245 (Fla.1997).",analysis
+748,2540243,1,1,"While incarcerated in different penal systems, Appellants, Joe Jones and Michael Hallum, each filed an RCr 11.42 motion for post-conviction relief. Following denial of these motions by the trial court, each Appellant, pro se, [2] filed a notice of appeal along with a motion to proceed in forma pauperis. The Court of Appeals dismissed both appeals due to each Appellant's respective failure to file the motion to proceed in forma pauperis within the mandatory 30-day time period. RCr 12.04(3) ([t]he time within which an appeal may be taken shall be thirty (30) days after the date of entry of the judgment or order from which it is taken.). [3] Jones placed his pro se notice of appeal and motion to proceed in forma pauperis in the prison mail system on March 15, three days prior to the 30-day deadline. [4] However, the motion was not filed, nor was the notice marked tendered, until March 19—one day outside the 30-day deadline. Hallum placed his pro se notice of appeal and motion to proceed in forma pauperis in the prison mail system on November 2, three days prior to the 30-day deadline. [5] However, the motion was filed and the notice marked tendered on November 13—eight days after the deadline. We granted each Appellant's petition for discretionary review, consolidated the cases, and now reverse the Court of Appeals' decisions.",facts
+749,1693624,1,8,"We must, therefore, conclude that the review panel was without authority to enter its order of affirmance. Moreover, absent such an order, we are without jurisdiction to consider Hagelstein's appeal. This court held in Schmidt v. Shoftstall Alfalfa, 239 Neb. 248, 475 N.W.2d 523 (1991), that direct appeal could not be taken to this court from the order of a single judge of the compensation court, as there were neither provisions in the statutes nor any procedures for such an appeal. While the statute at issue in that case, Neb.Rev. Stat. § 48-185 (Reissue 1988), has since been amended to address review rather than rehearing of disputed cases, see § 48-185 (Reissue 1998), the holding of Schmidt v. Shoftstall Alfalfa, supra , remains valid and applicable in the instant case: The statutes as currently written do not provide for appeal to this court or the Court of Appeals without a properly constituted review by the compensation court. We note that after our disposition of the case, the compensation court may still review Hagelstein's claim despite the delay occasioned by these unusual circumstances, as Hagelstein seasonably filed his application for review. See Tatara v. Northern States Beef Co., 230 Neb. 230, 430 N.W.2d 547 (1988).",jurisdiction
+750,1799262,1,5,"The central issue in this case has always been whether Southerland was terminated by Hardaway in violation of the KEOA; for otherwise, she was terminable at will and had no cause of action for wrongful discharge. Production Oil Co. v. Johnson, Ky., 313 S.W.2d 411 (1958); Scroghan v. Kraftco Corp., Ky.App., 551 S.W.2d 811 (1977); cf. Firestone Textile Co. Div. v. Meadows, Ky., 666 S.W.2d 730, 731 (1983). The operative language of KRS 207.150(1) is that which provides that an employer cannot discriminate against a person because of a disability unless the disability restricts that individual's ability to engage in the particular job or occupation for which he or she is eligible. Hardaway contends that Southerland's job required her to move equipment and furniture, including stoves and refrigerators, dig ditches, suction water out of flooded apartments, trim trees and bushes, plant flowers, sweep, mop and clean the laundry room, paint and wallpaper walls, install carpet, clean windows, remove storm windows, scrub tile floors on her hands and knees, and mow grass. Southerland acknowledged that she did, indeed, occasionally perform all of these functions on a voluntary basis prior to her injury. However, she steadfastly claimed and the jury obviously believed that these duties were not requirements of her job as apartment manager. In support of her claim, Southerland introduced into evidence a written job description prepared and furnished to her by Hardaway, which describes her duties as manager in great detail, but does not include any of the tasks described above. A fair reading of the job description indicates that the manager's job was to supervise and inspect others who actually performed those tasks. Southerland also produced two other former Hardaway apartment managers who testified that they were never required to and never did perform the tasks in question. In short, Southerland introduced evidence that although she performed the additional tasks on a volunteer basis, they were not within her job description; and although she could no longer perform those additional tasks after her injury, she could perform the tasks set forth in the job description. This evidence sufficed to avoid a directed verdict. Lovins v. Napier, Ky., 814 S.W.2d 921, 922 (1991). It also sufficed to satisfy the cold hard facts test set forth in Harker v. Federal Land Bank of Louisville, Ky, 679 S.W.2d 226 (1984), although Harker specifically limited that test as a special rule for age discrimination summary judgments. Id. at 229.",sufficiency of the evidence
+751,2590679,2,1,"¶ 13 Mr. Merrill argues that the plain language of the statute, its legislative history, and case law addressing similar statutes support the proposition that the time limit to withdraw a guilty plea imposed by Utah Code section 77-13-6(2)(b) is directory only, creating no jurisdictional bar to the consideration of his motion. At the time of Mr. Merrill's plea and motion to withdraw, section 77-13-6 read: (1) A plea of not guilty may be withdrawn at any time prior to conviction. (2) (a) A plea of guilty or no contest may be withdrawn only upon good cause shown and with leave of the court. (b) A request to withdraw a plea of guilty or no contest is made by motion and shall be made within 30 days after the entry of the plea. (3) This section does not restrict the rights of an imprisoned person under Rule 65B, Utah Rules of Civil Procedure. Utah Code Ann. § 77-13-6 (1999) (amended 2003 & 2004). [1] ¶ 14 Although we have not unequivocally stated that the thirty-day filing requirement of section 77-13-6(2)(b) imposes a jurisdictional bar to late-filed requests to withdraw pleas, we have strongly implied as much. ¶ 15 We first addressed this issue in State v. Abeyta, 852 P.2d 993 (Utah 1993) (per curiam). Before the thirty-day limit to withdraw a guilty plea was added to Utah Code section 77-13-6, Mr. Abeyta pleaded guilty to aggravated robbery. Id. at 994; see Utah Code Ann. § 77-13-6 (1980). By the time Mr. Abeyta moved to withdraw his plea, the thirty-day time limit had been codified, see Utah Code Ann. § 77-13-6 (1989), and more than thirty days had passed from the date on which he entered his plea. Abeyta, 852 P.2d at 994. We concluded that the statutory amendment was substantive and not procedural and held that the thirty-day limit could not be applied retroactively to bar Mr. Abeyta's motion. Id. at 995. In so holding, we implied that a defendant's failure to withdraw a guilty plea within thirty days from the date on which he entered it would have jurisdictional consequences when we stated that [t]he amendment to the plea statute limits a defendant's right to withdraw his or her guilty plea to thirty days after entry of the plea. Thereafter, the right is extinguished. Id. ¶ 16 Later, in State v. Ostler, 2001 UT 68, 31 P.3d 528, we acknowledged and resolved a statutory ambiguity concerning which procedural event triggered the thirty-day plea withdrawal window. [2] We held that the statutory description of the period available to withdraw a plea, 30 days after the entry of the plea, Utah Code Ann. § 77-13-6(2)(b) (1999), referred to the date of entry of final judgment and not to the date of the plea colloquy. Ostler, 2001 UT 68 at ¶ 11, 31 P.3d 528. The legislative history of the statute anchored most of this holding. Id. at ¶ 9. We reinforced our reasoning, however, with the observation that to start the time for moving to withdraw a plea from the time the district court accepted a plea could deprive the district court of the power to review a plea before it enters a judgment of conviction and sentence, an outcome we found to be unreasonably unfair. Id. at ¶ 10. Contributing to the unfairness of this alternative interpretation was our assumption, culled from the dictum in Abeyta, that failure to bring a timely motion to withdraw a guilty plea had jurisdictional consequences. Id. ¶ 17 State v. Reyes, 2002 UT 13, 40 P.3d 630, completed the evolution of our analysis of the thirty-day filing period with the express recognition of its jurisdictional status as an integral part of the holding. Moreover, we accorded increased veneration to our earlier commentaries on the jurisdictional status of the thirty-day filing window of section 77-13-6(2)(b), elevating them from dicta to holdings. Id. at ¶ 3. When we explained why we were turning away Mr. Reyes's motion to withdraw his plea, we stated: We decline to address this issue because we do not have jurisdiction to address it. Section 77-13-6 of the Utah Code was amended in 1989 to require a defendant to file a motion to withdraw a guilty plea within thirty days after the entry of the plea. Utah Code Ann. § 77-13-6 (1999). We have held that failure to do so extinguishes a defendant's right to challenge the validity of the guilty plea on appeal. See State v. Abeyta, 852 P.2d 993, 995 (Utah 1993) (noting that the plea statute limits a defendant's right to withdraw his or her guilty plea to thirty days after entry of the plea and that thereafter, the right is extinguished); State v. Ostler, 2001 UT 68, ¶ 10, 31 P.3d 528 (noting that because State v. Johnson, 856 P.2d 1064, 1067 (Utah 1993), requires a defendant to move for a withdrawal in the district court before he can challenge a plea on appeal, his appeal rights on the plea question could be cut off.). Accordingly, because Reyes did not move to withdraw his guilty plea within thirty days after the entry of the plea, we lack jurisdiction to address the issue on appeal. Id. Although the retroactive promotion of dictum to holding is a practice we do not endorse, we neither apologize for our assessments of the jurisdictional nature of the thirty-day filing period in Abeyta and Ostler nor retreat from what is clearly our holding in Reyes, all of which imposes a jurisdictional bar on late-filed motions to withdraw guilty pleas. ¶ 18 Due to the unconventional treatment we have afforded it, we have never engaged in a thoroughgoing analysis of why section 77-13-6(2)(b) is jurisdictional. Though largely unexplained, our approach to the thirty-day filing period has been consistent. More importantly, the filing limitation's presumptive jurisdictional effect has shaped the outcome of the cases in which it has played a role. For example, in Ostler, the argument that the thirty-day filing period should commence from the date on which final judgment is entered may owe its persuasive force to the serious problems that we noted could beset a scheme in which a jurisdictional motion filing period began to run from the date of the plea colloquy. See Ostler, 2001 UT 68 at ¶ 10, 31 P.3d 528. ¶ 19 That a body of jurisprudence has developed around the view that the filing limitation is jurisdictional is reason enough to sustain its legitimacy even in the absence of a strong analytical pedigree where no compelling grounds have appeared to disturb it. Reyes, in fact, states that the filing limitation is jurisdictional. 2002 UT 13 at ¶ 3, 40 P.3d 630. Despite its imperfect lineage, Reyes is entitled to precedential dignity. Mr. Merrill does not directly ask us to overturn Reyes, but rather challenges its value as precedent. Because the issue was not briefed, we do not address Reyes's vulnerability to being overturned. We stand by Reyes's claim to precedential status and apply its holding here. Accordingly, we affirm the district court's denial of Mr. Merrill's motion to withdraw his plea as untimely. ¶ 20 We reject Mr. Merrill's contention that even if Reyes has precedential status, it is not controlling here because it concerned the appellate jurisdiction of the Supreme Court, not the jurisdiction of the district court, to consider an untimely motion to withdraw a guilty plea. However, the jurisdictional implications of section 77-13-6(2)(b) are independent of the court whose jurisdiction the defendant seeks to invoke. We consequently find Reyes to be controlling and confirm our conclusion there that section 77-13-6(2)(b) is indeed jurisdictional.",jurisdiction
+752,2570899,1,1,"[¶ 2] The buyers present the following issue: 1. Did the court err in failing to award pre-judgment interest on a summary judgment in favor of the [buyers] on a liquidated sum due the [buyers] as a result of court ordered rescission? The sellers rephrase the issue: Whether as a matter of law [the buyers] are entitled to prejudgment interest on the Judgment entered by the District Court, May 19, 2000, or in the alternative, does the District Court have discretion to award or not award costs and interest[?] [1]",issues
+753,2762413,1,2,"Under article I, section 10 of the Washington Constitution, must adult drug court staffings be presumptively open to the public? 2",issues
+754,3133308,1,2,1. Whether the district court erred when it denied Wolfe’s motion for a hearing. 2. Whether the district court erred when it denied Wolfe’s subsequent Rule 35 motion alleging an illegal sentence.,issues
+755,1984228,1,1,"VMI's Petition for Writ of Mandamus prayed for a writ requiring the deposit and for judgment against defendants    for costs, including reasonable attorneys' fees. But the motion for summary judgment was limited to the mandamus relief, and the court's order was confined accordingly. Because trial court did not rule on the merits of VMI's prayer for costs, including reasonable attorneys' fees, VMI argues the summary judgment entered was an interlocutory order and not appealable. See rule 1, Iowa Rules of Appellate Procedure. We disagree. The Petition for Writ of Mandamus was aimed at securing compliance with § 472.30, The Code (If, on the trial of the appeal, the damages awarded by the commissioners are increased, the condemner shall, if he is already in possession of the property, make such additional deposit with the sheriff, as will, with the deposit already made, equal the entire damages allowed.   ). There is an indication in papers filed below and here that the other relief prayed for in VMI's petition—costs, including attorney fees—was based on a different statute, § 472.34 (Should the applicant decline, at any time after an appeal is taken as provided in section 472.18, to take the property and pay the damages awarded, he shall pay, in addition to the costs and damages actually suffered by the landowner, reasonable attorney fees to be taxed by the court.). The City's brief asserts that VMI's prayer for recovery of costs including reasonable attorneys' fees constitutes in actuality a separate cause of action. The only allegation in VMI's petition which supports this branch of the prayer is a statement that plaintiff will incur in the future indebtedness for attorney's fees in the enforcement of its statutory and constitutional rights. Chapter 661 (Mandamus) makes no provisions for taxation of attorney fees as part of the costs. Ordinarily attorney fees are not recoverable as costs unless explicitly provided for by statute. Harris v. Short, 253 Iowa 1206, 1208, 115 N.W.2d 865, 866 (1962). Properly pled, the joinder of a § 472.34 damage claim with this action for mandamus would have been improper. See § 611.12, The Code. In absence of an improper joinder motion pursuant to rule 27(b), Rules of Civil Procedure, the court could have severed such a claim for separate trial. Rule 186, R.C.P. In the case before us, there was no proper pleading to support attorney fees under any theory. We view the court's ruling that such a claim should await further motions or pleadings relating thereto as merely preserving VMI's right, if any, to bring such a claim in the future, and rejecting consideration of such claim in the mandamus proceeding. We think trial court's judgment was a final appealable disposition. We have the requisite jurisdiction to proceed.",jurisdiction
+756,1825850,1,2,"The ore tenus standard of review applies with respect to the judgment entered on the UM claim. We have described that standard as follows: `When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.' . . . `The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses. . . . The rule applies to disputed issues of fact, whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. . . . ` . . . [Further], this Court will not disturb the trial court's conclusion unless it is clearly erroneous and against the great weight of the evidence. . . . ' . . . However, `that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.' . . .  Robinson v. Evans, 959 So.2d 634, 637 (Ala.2006). In actions like this where the trial court does not make express findings, we also have stated: [T]his Court will assume that the trial judge made those findings necessary to support the judgment. . . . Under the ore tenus rule, the trial court's judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless `found to be plainly and palpably wrong.' . . . `The trial court's judgment in such a case will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.' Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992).",standard of review
+757,4520055,1,5,"Ultimately, the question is whether the Goedens’ new residence is a “non-Farm residence” under the last section of the A-1 District regulations. Construing the zoning regulations as a whole, we hold that it is not. Although the last section of the A-1 District topic could have prohibited the construction of all new residences within the distance prescribed by the setback matrix, it did not do so. Because we find no abuse of discretion or legal error by the district court, we affirm its judgment. Affirmed.",conclusion
+758,1520716,1,3,"Appellant asserts that the evidence of record does not satisfy the elements of criminal contempt. 42 Pa. C.S. § 4131, upon which the contempt judgments rest, provides: The power of the several courts of this Commonwealth to issue attachments and to inflict summary punishment for contempts of court shall be restricted to the following cases:",sufficiency of the evidence
+759,1802018,1,1,"In this case, the defendant-appellant, Emmett Stromas, Sr., a/k/a Goldie, age 46, appeals both his conviction in the Circuit Court of Forrest County on the charge of selling a controlled substance and his sentence as a subsequent offender to serve a term of 60 years in the Mississippi Department of Corrections. Stromas asserts the following errors: (1) The trial court erred in allowing a tape recording of the drug transaction into evidence without first requiring the State to properly authenticate it. (2) Stromas's federal and state constitutional right to confront the witnesses against him was violated. (3) Stromas's sentence of 60 years confinement to the Mississippi Department of Corrections violates the Eighth Amendment's Prohibition of Cruel and Unusual Punishment.",introduction
+760,1519183,1,1,"Wal-Mart moved for a directed verdict at the close of the appellees' case and then again at the close of all the evidence. Both motions were denied. Wal-Mart then moved for a new trial after the jury verdict and alternatively requested other postjudgment relief as well. That motion was never decided. In the directed verdict motions and motion for a new trial and other post-judgment relief, questions about the sufficiency of the evidence were raised. In addressing the sufficiency issue we must first view the evidence in the light most favorable to the party against whom the verdict is sought and give that evidence the highest probative value, taking into account all reasonable inferences that can be derived from it. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). A motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury's verdict for the party to be set aside. Id.; see also Green v. Gowen, 279 Ark. 382, 652 S.W.2d 624 (1983). A motion for a directed verdict should be denied only when there is a conflict in the evidence, or when the evidence is such that fair minded people might reach different conclusions. Stalter v. Coca-Cola Bottling Co., 282 Ark. 443, 669 S.W.2d 460 (1984). Under those circumstances a jury question is presented and a directed verdict is inappropriate. Id. It is not this court's province to try (or retry) issues of fact. Instead, this court examines the record to determine if there is substantial evidence to support the jury verdict. B-W Acceptance Corp. v. Norman Polk, 242 Ark. 422, 414 S.W.2d 849 (1967). Substantial evidence is defined as that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 76, 671 S.W.2d 178, 181 (1984). We have previously described the proof necessary for a plaintiff to prevail in a slip and fall case. The plaintiff must prove: ... either (1) that the presence of a substance upon the floor was the result of the negligence on the part of the appellee or (2) that the substance has been on the floor for such a length of time that the appellee's employees knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 198, 777 S.W.2d 861, 862 (1989). Wal-Mart vehemently argues that there was no proof of a foreign substance on the floor due to its negligence and further no proof that a substance, if any, remained on the floor for a length of time to evidence its failure to use ordinary care. Wal-Mart cites two other cases in support of its argument—/.M Mulligan's Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1989); and Skaggs Companies, Inc. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986). Both cases are distinguishable. In Aultman there was no proof of any foreign substance presented to the jury. In White the plaintiff did testify about a mystery substance on the floor, but there was no testimony of what the substance was or how it got there. Moreover, in Dye v. Wal-Mart Stores, Inc., supra , there was no testimony by the plaintiff that there was any substance on the floor at the time and place she fell. Testimony was presented at trial to support the Keltons' claim. It was raining on the day in question. Water was on the Wal-Mart floor between the counter and the exit door. Wal-Mart employees entered the store through this door. There were foot tracks through the water on the floor. One witness felt a water drop hit her face. Another saw that a tile was missing in the ceiling. The water was still there when the Keltons returned. No incident report was completed by Wal-Mart personnel. No investigation was done by Wal-Mart until five months later. Though some of this testimony was contradicted by Wal-Mart witnesses, it collectively constitutes substantial evidence. The jury could readily infer that water had collected inside the building on the floor for an undue period of time and failure to wipe the floor clean or warn of its presence was a breach of ordinary care and, therefore, negligence. We have examined the record to determine if there is substantial evidence to support the jury verdict, as we are required to do. See B-W Acceptance Corp. v. Polk, 242 Ark. 422, 414 S.W.2d 849 (1967). Based on the evidence presented to the jury, we cannot say as a matter of law that the jury erred.",sufficiency of the evidence
+761,2183644,1,4,"We premise our holding on the condition that both buyer and seller be made aware of the conflicting interests of brokers and title companies in these matters and of the general risks involved in not being represented by counsel. We shall ask the Civil Practice Committee to recommend to us practical methods for achieving those aims. Presumably, that Committee will want to form a subcommittee including those who have been involved with this problem for many years. Obviously, the best way to achieve the goal is to have a knowledgeable disinterested attorney sit down with both buyer and seller and carefully explain both the conflict factor and the risk factor, but we doubt if that would be practical. Pending the report of that Committee and our action on it, we have decided to adopt an interim notice requirement that the broker must comply with. If that notice is not given, the broker will be engaged in the unauthorized practice of law. Furthermore, anyone who participates in the transaction, other than buyer and seller, knowing that the notice has not been given when and as required, will also be engaged in the unauthorized practice of law. As for any attorney who, under the same circumstances, continues to participate in the transaction, that attorney will also be subject to discipline for unethical conduct. At the commencement of the closing or settlement, the title officer in charge shall inquire of both buyer and seller whether, how, and when, the notice was given, and shall make and keep a record of the inquiry and the responses at that time. The interim notice that we require is attached as Appendix A. [6] It is a written notice, and it shall be attached to the proposed contract of sale as its cover page. The notice may be appropriately revised if the broker represents the buyer or is a dual agent, one who represents both seller and buyer. Whenever a broker presents either buyer or seller with the proposed contract, that cover page shall be so attached, and the broker shall personally advise the buyer or seller at that point that he or she must read it before executing the contract. If the contract is not personally delivered by the broker to the buyer or seller, the broker must make certain, prior to such delivery, that buyer and seller have been so informed, and must do so by speaking to them personally or by phone. Assuming such notice is given in accordance with the terms and conditions mentioned above, we hold that attendance and participation at the closing or settlement where neither party has been represented by counsel, or where one has not been so represented, does not constitute the unauthorized practice of law; that brokers may order abstracts, title binders, and title policies; that an attorney retained by the broker to draft a deed and/or affidavit of title for the seller may do so but only if the attorney personally consults with the seller; regardless of the prior restriction, any attorney retained by the broker for that purpose, or any attorney acting for the title company, may draft any of the documents involved in the transaction upon written request of the party, be it buyer, seller, lender, mortgagee, bank, or others; [7] that the title company may participate in clearing up those minor objections which Judge Miller refers to as categories one and two: standard exceptions such as marital status and money liens customarily paid at closing, but not those classified as categories three and four: easements, covenants or other serious legal objections to title. Other equally important protections for buyer and seller should exist. Any broker participating in a transaction where buyer and seller are not represented should have the experience and knowledge required at least to identify a situation where independent counsel is needed. Under those circumstances the broker has a duty, in accordance with the standards of that profession, to inform either seller or buyer of that fact. N.J.A.C. 11:5-1.23(a), (f). Presumably, the same duty applies to any title officer, whether or not an attorney, but especially if an attorney, who becomes aware of the need of either party for independent counsel. In addition to whatever potential action might be taken by the bodies that regulate brokers and title officers, as well as by their own associations, their failure to inform exposes them to the risk of civil liability for resulting damages. Judge Miller's report included the following additional recommendations: that this Court create a committee on real estate practice; that a separate certification be established for real estate attorneys; and that settlement companies be under the supervision of a public entity. We believe that the Civil Practice Committee can perform the function of a committee on real estate practice through a subcommittee. As to certification of real estate attorneys, we refer that matter to the Trial Attorney Certification Board. Concerning settlement companies, as we read the record, they appear to be nothing more than individual brokers, attorneys or title officers performing their roles through a corporation. We request that the Civil Practice Committee make a recommendation concerning the regulation of these entities. In addition, Judge Miller recommended the following, all of which we refer to the Civil Practice Committee for review and report: any unrepresented buyer or seller must execute a written waiver of the right to have counsel; both the broker and title agent must urge buyers and sellers to retain attorneys; the parties conducting a closing must be under the supervision of a public entity; brokers should be required to carry adequate liability insurance. Concerning the prior paragraph, we believe that the disclosure required in this opinion, or such disclosure as the Civil Practice Committee may recommend, may render such added protection unnecessary. While we are concerned about, and determined to afford, adequate protection for buyers and sellers, we do not want to burden the real estate transaction process with detailed requirements that do not add measurable protection. As in New Jersey State Bar Association v. New Jersey Association of Realtor Boards, 93 N.J. 470, 461 A. 2d 1112 (1983), we note that this Court is available to modify our judgment in this matter if the underlying circumstances change or if our resolution of the matter proves either impractical or unwise. As we have noted in this opinion, we have accepted Judge Miller's conclusion that the evidence does not warrant a finding that brokers are discouraging parties from retaining counsel. We assume that the massive failure to retain counsel, including the failure of the parties to avail themselves of the three-day cancellation clause, does not stem from any conspiracy on the part of brokers, but is most likely explained by the common knowledge in that area that most of these matters are handled without counsel and the general level of satisfaction with the situation. We leave it to the organized bar to keep itself informed of those circumstances. If it can be shown at some future date that the South Jersey practice results not from this common understanding, but rather from active discouragement by brokers, this Court will consider appropriate action, including revision of our determination. By allowing the South Jersey practice to continue, this Court does not in any way cede its power over the practice of law. The Court reserves the right and power, depending upon the circumstances, to prohibit that which is permitted under this opinion, or to impose restrictions and conditions in addition to those set forth above. Our decision, while allowing continuation of the South Jersey practice, imposes new conditions on that practice and serious consequences for non-compliance. In order that brokers and others may adjust their practices to comply with those conditions, our decision will not become effective until sixty days from the date of this opinion and will apply to all real estate contracts subject to this opinion that are thereafter executed and to the transactions based on those contracts. The decision of the Committee, Opinion No. 26, is affirmed in part, and reversed in part, and judgment entered declaring the rights of the participants in New Jersey residential real estate transactions in accordance with this opinion. For affirmance in part, reversal in part — Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI, and STEIN — 6. Opposed — None.",conclusion
+762,6329085,1,2,"Following a jury trial, John T. Bryant, Sr., was convicted of terroristic threats, a Class IIIA felony, in violation of Neb. Rev. Stat. § 28-311.01 (Reissue 2016); intimidation by phone call, a Class III misdemeanor, in violation of Neb. Rev. Stat. § 28-1310 (Cum. Supp. 2020); and assault in the third degree, a Class I misdemeanor, in violation of Neb. Rev. Stat. § 28-310 (Reissue 2016), which was enhanced to a Class IIIA felony under Neb. Rev. Stat. § 28-115(1)(c) (Cum. Supp. 2020), because it was committed against a pregnant woman. Bryant’s convictions stem from events that occurred on September 6, 2019, pertaining to three children Bryant shares with his ex-wife, who has an additional three children from another relationship. Based on allegations against the ex-wife, a juvenile court judge entered an order for the Department of Health and Human Services (DHHS) to have temporary physical custody of all of the ex-wife’s children, including those she shared with Bryant. At the time of the order, Bryant and his ex-wife’s three children were in Bryant’s physical custody after being removed from the ex-wife’s care following the - 208 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRYANT Cite as 311 Neb. 206 incident that led to commencement of a juvenile case. DHHS soon sought and obtained an order of temporary custody with their agency, rather than with Bryant, because of DHHS’ concerns relating to prior abusive behavior by Bryant toward his ex-wife that occurred in front of the children. K.B. was the DHHS caseworker assigned to coordinate the execution of the temporary custody order. On September 6, 2019, she was 7 weeks pregnant. K.B. testified at trial that once she received notice of the order, she coordinated with her team of child and family service specialists. She testified that she called Bryant at 11:44 a.m. During that phone call, K.B. notified Bryant of the order and explained that her job was to pick the children up. She testified that Bryant was very upset and hung up on her. K.B. testified that 1 minute later, at 11:45 a.m., Bryant called back. During the conversation that ensued, she told Bryant she was sending two DHHS workers to meet him to pick up the children. Bryant responded that K.B. “was not taking his kids.” K.B. stated she maintained contact with Bryant throughout the day, trying to get him to cooperate. K.B. had sent two family service specialists to Bryant’s house for the removal of the children from Bryant’s custody, with the assistance of the local sheriff’s department. But when K.B. was at the ex-wife’s house that afternoon on business pertaining to the order, a family service specialist informed K.B. that Bryant and his three children were not at his home. At 3:45 p.m., K.B. called Bryant to obtain his and the children’s location. During the conversation that ensued, Bryant stated a named judge “deserved a bullet in the head” and a named juvenile court deputy county attorney “deserved a bullet, too.” Bryant then ended that call. The judge in question had presided over Bryant’s divorce from his ex-wife and had awarded the ex-wife custodial rights subject to parenting time with Bryant. The named deputy county attorney was the State’s representative in the juvenile case for which the temporary custody order had been issued. - 209 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRYANT Cite as 311 Neb. 206 K.B. testified that she was in the ex-wife’s yard when Bryant called her back at 3:53 p.m. and immediately stated, “take my [expletive] kids, consider yourself next on my list for a bullet.” K.B. testified that Bryant sounded angry. She testified that Bryant’s statement about being next on his list for a bullet frightened her. K.B. testified that she was so upset she vomited in the ex-wife’s yard. K.B. testified that she was “absolutely terrified” and trembling as she continued to coordinate the execution of the order. Screenshots of K.B.’s call history on her work phone generally corroborated her testimony. They show two phone calls between K.B. and Bryant at approximately 11:45 a.m., a call from K.B. to Bryant at 3:45 p.m., and a call from Bryant to K.B. at 3:53 p.m. One of the family service specialists testified that she called K.B. around 3:30 or 3:40 p.m. to let her know they had arrived at Bryant’s house and he and the children were not there. She noticed that K.B. sounded “shaky [and] sad.” K.B. called her back a few minutes after that. The family service specialist described that during the phone call, K.B. was sobbing, was throwing up, and reported that Bryant had “told her that she was next, like on his list for a bullet like to the head.” Bryant’s version of events differed somewhat from K.B.’s version. He testified that around 10:15 a.m., he left with his children to travel to his oldest daughter’s home for a weekend visit. At approximately 10:30 a.m., while en route, Bryant called a supervisor at DHHS to discuss the status of whether he would receive temporary full custody of the children during the pendency of the juvenile case. Bryant testified the super­visor told him she did not know the current status of the situation and would have someone contact him later. Bryant testified that K.B. left a voicemail on his phone at 11:47 a.m. and that he did not notice the voicemail until after he had arrived at his daughter’s home that afternoon. Bryant testified he did not believe there was any hurry to call K.B. - 210 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRYANT Cite as 311 Neb. 206 back because she simply introduced herself, asked about a conversation he had with her supervisor, and asked him to call her back. Bryant testified he tried calling K.B. back, left her a voicemail, and proceeded with his day. According to Bryant, he did not learn about the temporary custody order until after 3 p.m. that day. Bryant testified that he was upset once he learned of the order because he had spent the week being told that there was no reason to keep his children from him and that he would receive temporary custody. He admitted that he conveyed this anger to K.B. in a phone call he initiated around 3:15 p.m. Bryant testified he discussed with K.B. that in his experience there was “[o]verreach big time by the family courts” and the “county attorneys.” He was “very vocal and voiced [his] opinions.” He claimed that he did not threaten to shoot anyone or refer to bullets. But Bryant testified he told K.B. the government needs to step in and “if that’s what it takes is the government to, basically. . . order the military to take them out, then maybe that’s what needs to happen to start setting a new precedence for this.” Bryant explained that there were two or three calls between himself and K.B. around this time because cell phone service was “spotty” and the calls were getting dropped. Bryant testified with respect to the 3:53 p.m. call that he could not remember if, but he believed, K.B. called him back. Bryant described the call as a continuation of the conversation commenced in the prior call initiated by K.B.—because the first call got dropped due to poor cell phone reception. With respect to what he said during the 3:53 p.m. call, Bryant admitted he said “well, maybe you deserve one too.” When asked on cross-examination, “[o]ne what?” Bryant simply answered, “One.” When asked what he was referring to, he stated, that was “going back into reference to the phone call that got cut off earlier. . . . The one where I indicated that maybe it would take the government ordering our military to step in and take — I mean, if that’s what it took is for them to take judges or I mean . . . .” - 211 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BRYANT Cite as 311 Neb. 206 Bryant testified that when he made these comments to K.B., he was not saying them to scare her or intimidate her, but he wanted someone to “finally kind of wake up and start listening to the other side of what’s going on.” Bryant testified he did not believe he was threatening anyone with crimes of violence, but admitted his statements were reckless. Bryant testified he did not intend to cause any terror, panic, or fear. After the State’s case in chief, Bryant moved for a directed verdict, arguing that the State failed to meet its evidentiary burden. The district court overruled this motion after finding that the evidence received provided sufficient factual proof for the issues to go to the jury. At the close of all evidence, Bryant renewed his motion for directed verdict. This was again overruled by the court. The jury found Bryant guilty of terroristic threats, assault in the third degree, and intimidation by phone call. The jury acquitted Bryant of a charge of obstructing government operations. The district court sentenced Bryant to concurrent determinate terms of 18 months’ imprisonment for the terroristic threats conviction, with 18 months of post-release supervision; 18 months’ imprisonment for the assault in the third degree conviction; and 2 months’ imprisonment for the intimidation by phone call conviction. Credit was given for 1 day served. Bryant does not challenge his sentences on appeal. ASSIGNMENTS OF ERROR Bryant assigns that the district court erred in overruling his motion to dismiss the charges of terroristic threats, assault in the third degree, and intimidation by phone call on the grounds of insufficient evidence.",facts
+763,2827593,1,5,"¶23 This is a close case. Nevertheless the evidence falls short when viewed separately or in the totality. We therefore reverse the court of appeals and overturn Mr. Carrera‘s conviction for unlawful possession of another‘s identification document. 3Though we decline to consider the inference, we express no opinion as to the ultimate merits of its constitutional permissibility. We leave that decision for another day, when we have the benefit of argument and briefing by the parties. 4 Almost any effort on this front could have revealed additional evidence sufficient to sustain the conviction. Hypothetically, the City may have been able to discover that the card had been reported stolen two months prior or that it was found among stolen goods also belonging to Ms. Alvin. Or perhaps that Mr. Carrera had used the card to obtain employment. Or maybe that Ms. Alvin lives outside of Utah, that she is a child, or that she is deceased. Any one of these facts would have provided a basis for the jury to conclude that Mr. Carrera possessed the card with nefarious intent. 8 Cite as: 2015 UT 73 Opinion of the Court ¶24 We reverse the conviction of Mr. Carrera for the unlawful possession of another person‘s identification document. The evidence presented to the jury was insufficient to sustain a reasonable inference that Mr. Carrera knew he was not entitled to possess the Social Security card. _____________",conclusion
+764,885000,1,1,"¶ 2 1. Is this appeal subject to dismissal for Moon's failure to comply with the mandatory mediation requirements of Rule 54(a), M.R.App.P.? ¶ 3 2. Did the District Court err when it ruled on the motion for summary judgment without allowing Moon the opportunity to conduct further discovery? ¶ 4 3. Did the District Court err in granting summary judgment in favor of Environmental? ¶ 5 4. Did the District Court err in denying Moon's motion to consolidate this matter with a separate action filed by Environmental for breach of contract?",issues
+765,901489,1,4,"[¶ 12.] Whether it was error to revoke Tinklenberg's license for a violation of SDCL XX-XX-XXX when the statute was repealed before administrative proceedings to revoke his license were commenced. [¶ 13.] Tinklenberg's alleged violations of SDCL XX-XX-XXX took place between December 1993 when he transferred the policy to himself and March 2000 when he collected the death benefit proceeds and kept them. The administrative proceeding to revoke Tinklenberg's license was commenced in January 2002. SDCL XX-XX-XXX was repealed by the South Dakota Legislature effective July 1, 2001, prior to the commencement of the administrative action, but after the alleged violation of the statutory section. See 2001 SDSessLaws ch 286 § 280. Tinklenberg asserts the repeal of the statute cancelled any action against him pursuant to the statute and that no savings clause revives SDCL XX-XX-XXX. The Division argues that the general saving clause of SDCL 2-14-18 allows a proceeding pursuant to the statute, even though it has been repealed, as the conduct at issue had occurred while the statute was in force and because a penalty is involved. Alternatively, the Division argues that SDCL XX-XX-XXX was simultaneously re-enacted by SDCL XX-XX-XXX. This issue involves a question of law which we review de novo. [¶ 14.] Prior to its repeal, SDCL XX-XX-XXX provided: The director may suspend for not more than twelve months, or may revoke or refuse to continue any license issued under this chapter, or any surplus lines broker's license if, after hearing held on not less than twenty days' advance notice of such hearing and of the charges against the licensee given to the licensee and to the insurers represented by such licensee or to the appointing agent of a soliciting agent, he finds that as to the licensee any one of the following causes exists: (1) Any cause for which issuance of the license could have been refused had it then existed and been known to the director; (2) Obtaining or attempting to obtain any such license through fraud or through willful misrepresentations or misstatements as to any material matter; (3) Violation of or noncompliance with an applicable provision of this title, or for willful violation of any lawful rule, regulation, or order of the director; (4) Misappropriation or conversion to his own use, or illegal withholding, of moneys or property belonging to policyholders, or insurers, or beneficiaries, or others and received in conduct of business under the license; (5) Conviction, by final judgment, of a crime involving moral turpitude; (6) For material misrepresentation of the terms of any insurance contract or proposed insurance contract; or (7) If in the conduct of his affairs under the license the licensee has used fraudulent or dishonest practices, or has shown himself to be incompetent or untrustworthy. [¶ 15.] It is general basic law that the effect of the repeal of a statute, where neither a saving clause within the repealing statute itself nor a general saving statute exists to prescribe the governing rule for the effect of the repeal, is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the statute which, except as to proceedings passed and closed, is considered as if it had never existed. State Highway Commission v. Wieczorek, 248 N.W.2d 369, 372 (S.D.1976). The legislature did not enact a specific savings clause as to SDCL XX-XX-XXX. Therefore, we must consider whether South Dakota's general savings cause contained in SDCL 2-14-18 preserved SDCL XX-XX-XXX as to this administrative proceeding against Tinklenberg. SDCL 2-14-18 provides: The repeal of any statute by the Legislature shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. (emphasis added) [¶ 16.] Black's Law Dictionary 1168 (8th ed 2004) defines penalty as: [p]unishment imposed on a wrongdoer, usu. in the form of imprisonment or fine; esp., a sum of money exacted as punishment for either a wrong to the state or a civil wrong (as distinguished from compensation for the injured party's loss). Though usu. for crimes, penalties are also sometimes imposed for civil wrongs. Under the Division's administrative rules, sanctions which may be imposed for violations of the insurance code are characterized as a penalty. ARSD 20:06:01:02 provides: In determining the penalty for a violation of an insurance law by an agent, broker, or insurer, the director may consider, but is not limited to, the following factors: (1) Prior violations of the law by the agent, broker, or insurer; (2) Number of violations of a statute; (3) Number of statutes violated; (4) Penalties assessed against other agents, brokers, or insurers for the same violations; (5) Magnitude of the harm to the public and insured; and (6) Any mitigating circumstances. (emphasis added). [¶ 17.] There can be little question that the revocation of a professional license is a serious matter with significant consequences. Setliff, 2002 SD 58, ¶ 23, 645 N.W.2d at 608 (citing Bruggeman v. S.D. Chem. Dependency Counselor Certification Bd., 1997 SD 132, ¶ 12, 571 N.W.2d 851, 853 (additional citation omitted)). This Court has characterized the revocation of a resident insurance agent's license as a penalty. Kent v. Lyon, 1996 SD 131, ¶ 53, 555 N.W.2d 106, 117. We conclude that the revocation of Tinklenberg's license for his misconduct is a penalty for the purposes of SDCL 2-14-18. Therefore, it was not error for the Division to seek revocation of Tinklenberg's license under the authority of SDCL XX-XX-XXX, [1] since his conduct occurred during the time when the statute was in force. [¶ 18.] Our conclusion has support from other courts which have addressed this issue. The cases are summarized thus: To alleviate the hardship and to rectify the injustice of the common-law rules of construction and interpretation as they prescribe the effect of the repeal of a statute, a majority of the jurisdictions have enacted general savings statutes with the express purpose of achieving the continuation of repealed statutes in respect to past activity and pending legal actions. . . . Although these general savings statutes have been designated as mere rules of construction to be applied only to resolve a question of legislative intent, the prevalent and more favored view is to construe the savings provisions as positive legislation which should be given the effect as though they were incorporated into every future enactment involving a substantive right. Where a statute is repealed, a general saving statute operates to save any substantive right of a private nature, liability, right of action, penalty, forfeiture, or offense which has accrued under the repealed statute. Consequently, any action predicated upon the repealed statute may be commenced and prosecuted to a conclusion under the provisions of the repealed act. 1A Norman J. Singer, Sutherland Statutory Construction § 23:38 (6th ed) (emphasis added). [¶ 19.] Further, there is a South Dakota decision which discussed the general savings clause in relation to a liability. In Schultz v. Jibben, 513 N.W.2d 923 (S.D. 1994), a vendor under a contract for deed commenced an action to foreclose the interest of the purchasers and their assignee. The assignee counterclaimed for an equitable adjustment of the contract referring to SDCL 21-50-2. However, this statute was repealed after execution of the original contract for deed. In denying application of the general savings statute to preserve the right of equitable adjustment for the assignees, we determined that the right of equitable adjustment was not a liability and therefore could not be saved under SDCL 2-14-18. Yet, we considered the preservation of a liability under this general savings statute, if the liability existed prior to the repeal and was not mentioned in the repealed statute, by writing: [T]he repeal of a statute does not bar actions commenced after the repeal if predicated upon liability which accrued when the act was in force [.] [2] Id. at 925 (emphasis in original) (citing Colorado v. McMillin, 150 Colo. 23, 370 P.2d 435 (1962)).",issues
+766,902298,1,1,"{2} Article VI, Section 32 of the New Mexico Constitution, which created the Judicial Standards Commission, provides that “any justice, judge or magistrate of any court may be disciplined or removed for willful misconduct in office.” That constitutional provision vests this Court with the ultimate responsibility of reviewing recommendations of the 1 Commission, determining whether a judge has committed willful misconduct, and imposing discipline that we find “just and proper.” {3} Pursuant to this Court’s responsibility under Article VI, Section 3 of the New Mexico Constitution to exercise “superintending control over all inferior courts,” we have promulgated a Code of Judicial Conduct, Rules 21-100 to -406 NMRA, that “establishes standards for the ethical conduct of judges and judicial candidates” requiring that judges “aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.” Id. pmbl. (2)-(3). While violations of Code provisions are not automatic grounds for judicial discipline, they provide “some proof of what constitutes appropriate judicial conduct.” In re Martinez, 99 N.M. 198, 204, 656 P.2d 861, 867 (1982) (ordering suspension of a judge for willful misconduct in office). {4} The Commission and Respondent have stipulated to the following facts. Respondent’s stepson, Albert Hernandez, was a party in a child-support enforcement proceeding assigned to Seventh Judicial District Court Judge Matthew Reynolds. In August 2012, after Mr. Hernandez was jailed for nonpayment of support, Respondent, who had no official role in the case, placed a telephone call to Judge Reynolds, stating that Mr. Hernandez was not a flight risk and requesting that Judge Reynolds reduce Mr. Hernandez’s bond or let him out of jail. As a result of the ex parte communication from Respondent, Judge Reynolds recused himself from Mr. Hernandez’s case. {5} Upon learning of the incident, the Commission initiated a preliminary investigation and requested a written explanation from Respondent for the phone call. Respondent explained in a letter that he placed the call “to advise Judge Reynolds that Albert Hernandez was not a flight risk and that [Respondent] would personally make sure he made his court date.” Respondent also stated that he recognized that his phone call created an appearance of impropriety and promised to comply with any remedial action taken by the Commission. {6} After receiving Respondent’s letter, the Commission filed a notice of formal proceedings against Respondent, alleging in three counts that the phone call to Judge Reynolds was (1) an ex parte communication in Mr. Hernandez’s child-support enforcement case, (2) an abuse of the prestige of Respondent’s judicial office by attempting to gain favorable treatment for Mr. Hernandez, and (3) an abuse of the prestige of Respondent’s judicial office by vouching for the character of Mr. Hernandez. The Commission also alleged that each of the three counts violated specific provisions of the Code of Judicial Conduct and constituted willful misconduct in office. {7} Respondent obtained counsel and answered the Commission’s notice, admitting to the conduct and the violations alleged by the Commission. He and the Commission then entered into the stipulation agreement and consent to discipline (Agreement) in which Respondent acknowledged that the telephone call to Judge Reynolds amounted to willful misconduct and violated Rules 21-101 NMRA (requiring compliance with the law), 21-102 NMRA (promoting confidence in the judiciary), 21-103 NMRA (avoiding abuse of the 2 prestige of judicial office), 21-204(B)-(C) NMRA (avoiding external influences on judicial conduct), 21-206(A) NMRA (ensuring the right to be heard), 21-209(A) NMRA (avoiding ex parte communications), 21-210(A) NMRA (prohibiting statements on pending and impending cases), and 21-303 NMRA (prohibiting service as a character witness). Respondent also agreed that his misconduct caused Judge Reynolds to disqualify himself from Mr. Hernandez’s case. {8} As stipulated discipline, Respondent agreed to (1) enroll in and successfully complete, at his own expense, the National Judicial College’s online course, Ethics and Judging: Reaching Higher Ground, (2) receive a public censure, to be published in the New Mexico Bar Bulletin, (3) undergo formal mentorship with supervised probation for the remainder of his term in office, and (4) accept a suspension without pay for ninety days, with sixty days deferred on the condition that he successfully complete his probation. {9} The Commission petitioned this Court for acceptance of the Agreement. We granted the petition and issued our order accepting the terms of the Agreement but conditioning the deferral of sixty days of Respondent’s ninety-day suspension on his successful compliance with all of the terms of the Agreement, not just with the terms of his probation. See Rule 27401(A)(3) NMRA (“The Supreme Court, in its discretion and under such conditions as it may specify, may . . . impose the discipline recommended by the commission or any other greater or lesser discipline that it deems appropriate under the circumstances . . . .”). Publication of this Opinion constitutes the public censure component of Respondent’s discipline.",introduction
+767,2009441,1,2,The only issue we must decide is whether substantial evidence supports the verdict.,issues
+768,1198948,1,1,"The plaintiff District is a quasi-municipal corporation, established in the early 1950s to provide treated water to rapidly growing areas in and around Johnson County. The Act provided for the establishment of new, and the acquisition of existing, water distribution systems within the District's boundaries. The Club, a Missouri corporation organized as a private social and golf club, is located within the boundaries of the District. The Club's golf course is located on the eastern edge of the District's boundary and next to the western boundary of Kansas City, Missouri. The Club and its golf course were originally within the franchise service area of the former Kansas Water Company (KWC). The KWC was a privately owned water utility that obtained its water supply from Kansas City, Missouri. In 1990, the area formerly served by the KWC was voluntarily annexed by the District under K.S.A. 19-3512. When KWC's service area was annexed, the Club became a District inhabitant. The Club has consistently purchased large volumes of water, at high rates of flow, from the District for irrigation purposes. After the annexation, and in reliance on the consumption history and anticipated future demand within the KWC service area, the District invested in substantial capital improvements. The District wished to enhance its water supply facilities and distribution mains to accommodate future demand, which is affected by the large maximum day and maximum hour flow requirements of the Club. The District made these improvements in conformance with recommendations made in a 1991 hydraulic study completed by an engineering firm. In 1994, the District developed a new rate structure to encourage reduction of peak or summer consumption of water services. The objective was to more nearly equalize the demands for water services over the year on plant and facilities and reduce the need for future expenditures for a new plant and increased facility capacity. The new rate structure resulted in a large increase in the Club's water bill. The Club has neither challenged the rate structure nor complained about the quality of service it received. In 1994, the Club began investigating ways to reduce irrigation costs. After deciding that use of effluent waste water would not result in savings, the Club entered into a lower priced purchase agreement with the water department of Kansas City, Missouri. By constructing a private pipeline under State Line Road, the Club would be able to pipe pressurized treated water from Kansas City, Missouri, to water its greens and fairways. The water purchase agreement contemplates a water meter on the Missouri side of State Line Road. When the Club notified the District of the agreement, the District objected. The District's elected board adopted the following rule: Pursuant to Water District law, K.S.A. 19-3501 et seq., the Water District has the exclusive right and duty to serve, supply and service all users of treated water within its boundaries, and therefore no treated water shall be provided through any type of water supply or distribution pipe, conduit or other system, regardless of the point of supply, for use within the District's boundaries by any other water utility or other source of supply unless otherwise authorized by these Rules or by contract with the Water District. Representatives of the Club's board attended the hearing on adoption of the exclusivity rule. The Club informed the District of the Club's intent to disregard the rule. Eventually, the District filed this action seeking to enjoin the Club from obtaining water from any source other than the District. The District was concerned that customers located on or near its boundaries would contract with adjoining water utilities to purchase water to the detriment of the District. (Six other water districts are adjacent to the District on the north, west and south.) The District believed that unless it was the exclusive supplier of treated water to citizens living within its boundaries it would be subject to ruinous competition.",facts
+769,2069533,1,4,"For the foregoing reasons, we agree with Conrail that it had no statutory duty of care vis-a-vis Ms. Brown. We further conclude, however, that summary judgment should not have been granted with respect to Ms. Brown's two common law theories. We therefore reverse the judgment and remand the case for further proceedings consistent with this opinion. So ordered.",conclusion
+770,1917594,1,2,"¶ 2. The brother of Yolanda Mullin (Mullin) hosted a barbecue at their mother's home the evening of September 7, 1998, that lasted until the early hours of September 8, 1998. Among the people at the barbecue were Kelvin Barrett (Barrett), Seldon and Hawthorne. Seldon and Hawthorne were cousins. ¶ 3. During the early morning hours of September 8, 1998, Savona Autman (Autman) first saw Hawthorne standing on the porch of Rhonda Williams's (Williams) apartment with Johnny and Lashail Stewart (Stewart). According to Autman, Hawthorne agreed to take her to get a sack of powder, i.e. cocaine. Autman, Stewart and Hawthorne left in Williams's car with Hawthorne driving. ¶ 4. Stewart recalled that Hawthorne told them that his cousin had taken something out of his pocket. Hawthorne did not say he was going to kill Seldon, but he was mad that his cousin had taken his money. Hawthorne claimed that Seldon had taken $30-$50 out of his pocket a few days before earlier while they both were at Williams's apartment. Hawthorne, Williams and Seldon had been drinking and having fun when Hawthorne had gotten tired and fallen asleep. Williams told Hawthorne that Seldon took the money while he was asleep. ¶ 5. Some time before 2:00 a.m., Mullins and Chuck Potts (Potts) left the barbecue and went to Potts's house. Barrett and Seldon had already left the barbecue and gone to Taco Bell. Barrett was driving Seldon's truck. Barrett and Seldon parked in front of Potts's house to eat. Mullins and Potts saw Barrett and Seldon drive up in front of Potts's house. Barrett was driving. ¶ 6. As Autman, Stewart and Hawthorne were riding down Meadowlark Drive, Autman spotted Seldon. She informed Hawthorne that she saw Seldon. Hawthorne turned the car around, and he parked the car right next to Seldon's truck. Stewart saw that Hawthorne had a gun when he got out of the car. Stewart and Autman tried to get Hawthorne to get back in the car. ¶ 7. Barrett testified that Seldon rolled his window down. Hawthorne jumped out of the car yelling at Seldon. Mullins and Potts testified that when Barrett started the truck, Hawthorne pointed his gun at Barrett. According to Barrett, Hawthorne told him to turn off the truck or he would blow his brains out. Barrett complied. ¶ 8. Barrett stated that the argument between Seldon and Hawthorne was basically over money. Seldon did not seem to take Hawthorne very seriously. When Hawthorne pointed the gun at Seldon, Seldon started pulling money out of his pocket. According to Barrett, Hawthorne said, You don't believe I'll shoot you. Seldon replied, No, if you love me so much, no, you won't shoot me. Hawthorne was within three or four inches of Seldon when he fired the gun. ¶ 9. Hawthorne began shaking Seldon saying, Cuz, cuz, wake up. Wake up. Barrett did not see Seldon try to grab Hawthorne's gun. Stewart did not look up until she heard the gun go off, and she saw Hawthorne shaking Seldon saying, Cuz, wake up. Autman did not see Seldon grab Hawthorne's gun. ¶ 10. When Autman heard the shot, she ran to the house across the street and told them to call the police. Stewart jumped out of the car. She saw Hawthorne get into the truck with Seldon. Mullins and Potts went inside to call the police. Barrett exited the truck and ran. Barrett heard Hawthorne start the truck and leave with Seldon. Stewart and Autman returned to Williams's car. They attempted to follow Seldon's truck, but they lost sight of the truck. ¶ 11. Hawthorne testified in his own defense. Hawthorne claimed that Seldon told him, If [y]ou want your money? Take it. Take it. Hawthorne thought take it meant he would have to physically take the money from Seldon. Hawthorne claimed he did not intend to shoot Seldon. Hawthorne alleged that he had armed himself merely for his protection. Hawthorne claimed that the gun fired because Seldon tried to grab it. ¶ 12. When the Gulfport police arrived on the scene at 0209 hours, they found Seldon's truck in a ditch with the engine compartment on fire. The police discovered Seldon covered with blood. The police put out the flames, and they pulled him from the vehicle. He was not responsive. ¶ 13. Hawthorne claimed he was attempting to take Seldon to the hospital when he drove away with Seldon in the truck. At Edgewood Manor, Hawthorne hit the curb causing the truck to wreck. Hawthorne contends that he ran to Edgewood Manor to get someone to call an ambulance, but no one would open their door. Hawthorne asserted that he never saw flames or smoke coming from the truck. ¶ 14. Hawthorne went to the house of his cousin, Deborah Robinson (Robinson), where he changed his clothes. When Hawthorne saw on television that Seldon had died, he left Robinson's house and went to the police station to talk with the police. ¶ 15. Pathologist Dr. Paul McGarry (Dr. McGarry) testified that Seldon suffered a gunshot wound that entered the right jaw area along the jaw line. The bullet went through the back and center of Seldon's spine, damaging his spinal cord, opening a jugular vein and totally opening a major artery to the brain before exiting through the upper back causing major blood loss. Dr. McGarry determined the gunshot to be Seldon's cause of death. ¶ 16. Following the testimony offered by the State, Hawthorne moved for a directed verdict arguing that the State had failed to make a prima facie case of the elements of deliberate design murder. The trial court denied Hawthorne's motion for J.N.O.V. or a new trial. Hawthorne now appeals his conviction to this Court. ¶ 17. Hawthorne raises the following issues on appeal: I. Whether the trial court erred in granting jury instruction S-3-A. II. Whether offering jury instruction D-12-A constituted ineffective assistance of counsel. III. ether the evidence offered as to deliberate design was legally sufficient to support the jury's verdict.",facts
+771,1085420,3,1,"Mr. Pruitt argues that the evidence is insufficient to support his conviction for first degree felony murder. Specifically, he contends that Taka Pruitt’s account of the attack on Mr. Guidroz does not differ substantially from his testimony, and that to the extent it does, her veracity is compromised because of her location and distance from the site of the attack. Our standard of review 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not re-weigh the evidence but presume that the trier of fact has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of the State. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). Questions regarding witness credibility are resolved by the jury. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). 13 Ms. Atkinson testified that Mr. Pruitt’s highest TCAP score occurred when Mr. Pruitt was in fifth grade and scored in the ninety-eighth percentile overall. -19- Mr. Pruitt was charged with first degree felony murder committed in the perpetration of a robbery. At the time of the offense, felony murder included a killing “committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (2007). Tennessee Code Annotated section 39-13-202(b) also provided that “[n]o culpable mental state is required for conviction under subdivision (a)(2) . . . except the intent to commit the enumerated offenses or acts.” Additionally, the death must occur “in the perpetration of” the enumerated felony. State v. Buggs, 995 S.W.2d 102, 106 (Tenn. 1999). Robbery is defined as the intentional or knowing theft of property from the person of another by putting the person in fear or using violence. Tenn. Code Ann. § 39-13-401 (2010); see also Tenn. Code Ann. § 39-14-103 (2010) (theft of property). Mr. Pruitt contends that the evidence supports his testimony that he had no intent to deprive Mr. Guidroz of his car and only ran to Mr. Guidroz’s car to aid Mr. Johnson, who had attacked and was struggling with Mr. Guidroz. We disagree. Mr. Johnson expressly denied playing any role in the robbery. Mr. Johnson testified that Mr. Pruitt intended to steal a car that day. Mr. Pruitt admitted as much during his testimony. Taka Pruitt testified that Mr. Pruitt acted alone in attacking Mr. Guidroz. Mr. Pruitt’s suggestion that her testimony is somehow compromised because she was unable to fully see what was happening in Mr. Guidroz’s car is a question of credibility that the jury resolved in favor of the State. After the attack, Ms. Pruitt saw Mr. Pruitt drive off in Mr. Guidroz’s car. Mr. Pruitt admitted that he took the car. Moreover, both Dr. Chancellor and Dr. Levy testified that multiple blows were inflicted on Mr. Guidroz. All of the medical testimony reflected that Mr. Guidroz died as a result of the injuries sustained during the attack. Viewed in the light most favorable to the State, the evidence supports the jury’s finding that Mr. Pruitt used violence to take Mr. Guidroz’s car and that Mr. Guidroz died as a result of injuries sustained from that use of violence. The proof is therefore sufficient to support Mr. Pruitt’s conviction for first degree felony murder committed during the perpetration of a robbery.",sufficiency of the evidence
+772,2073988,1,2,"Since the trial was jury waived, the issue of the sufficiency of the evidence may be considered on appeal even though motions for judgment of acquittal were not made. State v. Morgan, Me., 379 A.2d 728, 730 (1977). Dealing with the alleged violation of 17 M.R.S.A. § 2656, the appellant argues that there was insufficient evidence to indicate that when he committed the assault he then had the specific intent to kill the victim. Appellant is correct when he argues that the state must prove beyond a reasonable doubt that he harbored a specific intent, i. e., a subjective state of mind of intent or design to kill. Bessey v. State, Me., 297 A.2d 373, 376 (1972). This specific intent may be inferred, however, from the circumstances surrounding the act itself, which may show by its very nature of the requisite intention. State v. Pinnette, Me., 340 A.2d 17, 21 (1975). The single Justice made a general finding of guilt but he did not find the facts specially, nor was he requested to do so. Rule 23(c), M.R.Crim.P. As was the case in State v. Gagne, Me., 362 A.2d 166, 174 (1976), our review of the evidence leads us firmly to the conclusion that this finding must stand. Relating to the other three charges, appellant argues primarily that the State failed to prove the necessary intent which must accompany each of the alleged offenses. Extended discussion is unnecessary. Appellant had absolutely no right to enter the Fallon home. He obviously removed the rifle therefrom. The intent to steal must exist at the time of the entry and there was ample evidence to support the factfinder in his general finding of guilt in this connection. This same observation is appropriate to the charge of theft. With reference to the criminal threatening charge, the appellant himself, through his own testimony, supplied ample evidence of the necessary intent, although the same could well have been inferred from the testimony of Mr. McDonough. He testified as follows: Did I shoot him? No, I shot in the general direction towards where his trailer was but I could not see him because it was dark from where I was and there was tree lines and bushes and stuff, I couldn't really see. Dealing with the sufficiency of the evidence argument, we very recently said: Acting as an appellate court to review the sufficiency of the evidence, we are not to act as fact-finders in the first instance; it is the [fact-finder's] judgment, so long as it is a rational judgment, which must govern. State v. Clark, Me., 386 A.2d 317, 323 (1978). Such is the case here. DID THE EVIDENCE REQUIRE A FINDING THAT THE APPELLANT WAS NOT GUILTY OF THE CRIMES CHARGED BY REASON OF MENTAL DISEASE OR DEFECT? The Justice presiding heard the competing testimony of two psychiatrists. Dr. Epiphanes K. Balian, a qualified psychiatrist, testified for the defense. He had spent approximately twenty hours with the appellant in an effort to diagnose his condition. He expressed an opinion that Gatcomb suffered from an organic brain disease which has affected his thinking, his feelings, and his behavior. This condition was compared to that which individuals manifest when they're having an episode of a seizure. He was of the opinion that this condition would substantially affect his mental and emotional processes and substantially impair his ability to conform his conduct to that which the law expects. The State, in rebuttal, offered the testimony of Dr. Ulrich B. Jacobsohn who, it was agreed, was a qualified psychiatrist. In disagreeing with the testimony of Dr. Balian, he testified: I think personality disorders would be very close to my own findings of what I think may be the difficulty here. I think the important thing is that at no time was there any evidence to show that Mr. Gatcomb was laboring under what we would call a psychotic disturbance or, for that matter, an organic brain disease. Whether the appellant had a mental disease or mental defect sufficient to excuse his otherwise criminal conduct pursuant to 15 M.R.S.A. § 102, [2] or whether he suffered from either mental disease or defect and thus lacked substantial capacity to conform his conduct to the requirements of the law, or lacked substantial capacity to appreciate the lawfulness of his conduct, under 17-A M.R.S.A. § 58(1), [3] were questions of fact which the single Justice must resolve. Defendant's commitment to the Bangor Mental Health Institute does not give rise to any presumption of a mental incapacity excusing him from responsibility for criminal conduct. State v. Beauchene, Me., 382 A.2d 329, 330 (1978). It is the responsibility of the factfinder to resolve questions of fact and determine whether or not the defendant has established by a fair preponderance of the evidence that he, in fact, lacked the requisite mental capacity to make him criminally responsible for his conduct. State v. Durgin, Me., 311 A.2d 266, 268 (1973). See State v. Armstrong, Me., 344 A.2d 42, 47 (1975). See also State v. Buzynski, Me., 330 A.2d 422, 428 (1974). 17-A M.R.S.A. § 58(3). [4] It was not error for the Justice below to have rejected the testimony of Dr. Balian and to have accepted the competing testimony of Dr. Jacobsohn. ALTHOUGH ADMITTED WITHOUT OBJECTION, WAS IT MANIFEST ERROR TO ADMIT INCULPATORY STATEMENTS OF THE APPELLANT MADE TO DR. GEORGE CLOUTIER? A psychiatrist, Dr. George Cloutier, served in some unexplained capacity at the Bangor Mental Health Institute one day each week. On March 9, 1976, he was in the institution and was called to attend the victim when he was discovered in Gatcomb's room. Having done so, he ordered him removed for treatment to the emergency ward of a local hospital. Dr. Cloutier then had a conversation with the appellant who was in the seclusion room on E-2. The essence of his testimony is as follows: Well, the first thing that I asked him was what had happened and he said that he's cut the old man's throat and told me that he didn't—he said, don't ask me why. I hadn't asked him why yet. He said, don't ask me why, I don't know. And this is something that he repeated a number of times, I don't know why. He said, I just wanted to kill him. At one or more points, I just wanted to kill him. He expressed to me the hope that he'd now go back to jail or upstairs to the special ward, E-3. He told me he wanted to get out of the hospital several times. That he's not crazy. This testimony was adduced without any objection, nor did counsel for the appellant ever move to strike the same. It is a fair conclusion that Dr. Cloutier on the day of this interview had no previous acquaintance with or exposure to Gatcomb and had not personally treated him either medically or psychiatrically. If we assume (without any suggestion that the assumption has a valid legal basis) that the above quoted testimony was inadmissible evidence either because it was in violation of 32 M.R.S.A. § 3295, [5] or was introduced in evidence without complying with the mandate in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), (as appellant has argued) [6] and, as such, was an error of constitutional dimension, but not adequately saved for appellate review since admitted without objection, our task is to determine if the nature and impact [of such testimony was] such, in all the circumstances, as fundamentally to have deprived [appellant] of a fair trial. State v. Pomerleau, Me., 363 A.2d 692, 698 (1976). In our review of this issue, we, of course, are mindful of the harmless error beyond a reasonable doubt doctrine of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We conclude that no rational factfinder could have returned a verdict of not guilty on the assault with intent to kill charge even if the testimony of Dr. Cloutier had never been admitted. Thus, we have no hesitancy in saying beyond a reasonable doubt that the error (if such it was) was harmless, and we reach this conclusion by either one of two approaches. The record leaves no doubt that defense counsel had no realistic hope of an acquittal on the merits but was concerned primarily with establishing the truth of the plea of not guilty by reason of mental disease or defect. Relating to Dr. Cloutier's initial conversation with Gatcomb, he had also testified on direct examination as follows: A. Mr. Gatcomb seemed fully oriented as to the time, place, and person who was there. I found no evidence of any hallucinatory or delusional material. Nothing to indicate in any way that he was psychotic at that time. And my diagnosis at that moment was personality disorder, explosive type. Q. As I understand it as a layman, personality disorder is not considered by a psychiatrist to be a mental disease or defect; is that correct? A. Right. The entire cross-examination of the doctor was directed solely at reducing the impact of the above quoted statement. Not one question was directed to the doctor in cross-examination which bore any relationship to the inculpatory statement previously quoted. This position is further supported because the appellant voluntarily became a witness and testified as follows: Q. Well, now there must have been some reason why you would cut this man Pannell. Do you understand what it was? A. Honest to God, I really don't know, I really don't know. I really—I really cannot give you a truthful answer. Q. Did you intend to kill him? A. I don't think so. I don't think so. Q. Had you planned to cut him? A. That night that it happened I was on two or three different kinds of medication . . . and my head was a little weary and I was upset. I just—I don't know. Following this testimony the appellant offered his own psychiatric expert, Dr. Epiphanes Balian, who reached the psychiatric conclusion that we have hereinbefore discussed. It is thus apparent to us that it was trial strategy not to make any effort to deny the act of cutting the victim across the throat with broken glass, but to seek a finding of lack of responsibility therefore because of mental disease or defect. Such being the trial strategy, it was obviously harmless error (if error at all) to admit the testimony of Dr. Cloutier. The other approach to this problem is based on an analysis of the facts concerning the incident exclusive of the statement made to Dr. Cloutier by Gatcomb. An employee of the institute was on duty in appellant's ward on this particular evening. Appellant came to him and said, I cut [the victim]. He then took the employee to his own room where the victim was observed on Gatcomb's bed, bleeding profusely from a laceration of the neck. The appellant asked to be put in seclusion and this was done but, before doing so, he told the attendant that he obtained a piece of glass, which he used to do the cutting, by smashing a vase on the windowsill in the washroom. Another employee of the institute described the victim as a very passive individual, sixty-four years of age. He also observed the bleeding victim in Gatcomb's room. A pathologist examined the appellant on the morning following this episode and conducted a benzidine test on him, with the result that the test was positive for blood on Gatcomb's hands. He was not cross-examined. The State next introduced the testimony of a detective from the Bangor Police Department. The court found preliminary that the detective had properly warned Gatcomb of his so-called Miranda rights. He then quoted Gatcomb as telling him: I did it, I just did it and I don't know why, and, I cut [the victim], and further added, I don't know, I just did it, I want to go to jail, I don't belong up here, I'm not crazy. From the foregoing summary of the facts it becomes clear beyond possibility of dispute that the appellant was the person who brutally assaulted and inflicted the five to six-inch laceration on the throat of a sixty-four year old victim who was a very passive inmate in this institution. We need only ask one question, why would a person not suffering from mental disease or defect do such an act if not done with an intent to kill? We thus revert to our original position that it would have been completely irrational for a factfinder to have reached any other result but that of guilt, based on the testimony in this record and excluding that of Dr. Cloutier. State v. Gagne, supra . As thus viewed, the admission of this testimony was harmless error beyond a reasonable doubt. The entry is: Appeals denied. Judgments affirmed. GODFREY, J., did not participate.",sufficiency of the evidence
+773,2593661,2,9,"¶ 65 Mead next contends the evidence presented at trial was insufficient to support a finding of guilt beyond a reasonable doubt. We will reverse on this ground `only when the evidence . . . is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt . . . .' State v. Verde, 770 P.2d 116, 124 (Utah 1989) (quoting State v. Booker, 709 P.2d 342, 345 (Utah 1985)) (further quotations omitted). Put another way, we will overturn a conviction for insufficient evidence when it is apparent that there is not sufficient competent evidence as to each element of the crime charged for the fact-finder to find, beyond a reasonable doubt, that the defendant committed the crime. State v. Layman, 1999 UT 79, ¶ 12, 985 P.2d 911.
+¶ 66 As to the criminal solicitation count, Mead argues the evidence presented cannot support the jury's finding of guilt beyond a reasonable doubt because the only evidence to support the jury's verdict is Hendrix's testimony. Mead contends Hendrix's testimony cannot support the verdict because Hendrix purportedly acted as Mead's accomplice, warranting [that] added scrutiny be given to his testimony, and because Hendrix was offered significant favorable treatment for his own numerous criminal problems in exchange for his testimony against [Mead]. We disagree. ¶ 67 Even if we were to accept Mead's contentions, as we recently stated, we do not sit as a second trier of fact: It is the exclusive function of the jury to weigh the evidence and to determine the credibility of the witnesses. So long as there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime can reasonably be made, our inquiry stops. State v. Boyd, 2001 UT 30, ¶ 16, 418 Utah Adv. Rep. 8 (quotations omitted). In this case, the State presented some evidence to satisfy each element of the criminal solicitation count. It is the jury's role to determine the weight and credibility of this evidence. Id. Accordingly, Mead has provided us no reason to second guess the jury's determination. Id.
+¶ 68 We now turn to Mead's contention that the evidence was insufficient to support the jury's finding of guilt beyond a reasonable doubt as to the murder charge. Mere weeks before Pamela Mead's death, David Mead offered Hendrix $30,000 $40,000 to kill her. Further, Mead told both Walls and Simon he would kill his wife, have an alibi, and make it look like an accident. He told Hendrix this would happen after he had played the role of a good husband for a year to allay any suspicions of his involvement. While Mead had apparently been working on the pool for some time, he hastily completed it shortly after Pamela Mead's foot surgery. The backyard lights were in working order at the time of the murder; however, the bulbs had been unscrewed slightly, leaving the backyard dark. Moreover, Mead began dismantling the pool before the police even arrived, and his brothers completed this the next day. Additionally, the allegation that Mead was motivated to kill his wife for the life insurance money was bolstered by Mead's own prior statements and the fact that he began his efforts at recovering the insurance proceeds the day after his wife's death. We conclude there was sufficient competent evidence as to each element of the crime charged for the fact-finder to find, beyond a reasonable doubt, that the defendant committed the crime. Layman, 1999 UT 79, ¶ 12, 985 P.2d 911. [11]",sufficiency of the evidence
+774,2058937,1,2,"As an initial matter, we address the State's contention that the issue in this appeal is waived because respondent failed to object to the trial court's failure to make a written finding at the dispositional hearing or in her posttrial motion. The record reveals that respondent did in fact raise the instant issue for the first time on appeal. The rule of waiver, however, is a limitation on the parties and not on the courts. In re Marriage of Sutton, 136 Ill.2d 441, 446, 145 Ill.Dec. 890, 557 N.E.2d 869 (1990). Our concern for reaching a just result may override considerations of waiver. In re Timpone, 208 Ill.2d 371, 382, 281 Ill.Dec. 595, 804 N.E.2d 560 (2004). Under the circumstances in the present matter, where the well-being of a child and parental rights are at issue, we elect not to apply the rule of waiver and will consider the case on the merits. Article II of the Act governs proceedings involving abused, neglected and dependent minors. See 705 ILCS 405/2-1 (West 2002). In this case we review the requirement found in section 2-27(1), that the court put the factual basis for its finding that a parent is unfit or unable to care for, protect, train or discipline his or her child in writing. 705 ILCS 405/2-27(1) (West 2002). The State argues that the writing requirement contained in section 2-27(1) is satisfied when the trial court orally announces the factual basis for its finding and a court reporter records that statement. Respondent counters that an oral statement made on the record is not a sufficient writing under section 2-27(1). Respondent argues that only a written order containing the court's findings satisfies the statute. Respondent maintains that a trial court's failure to comply with this requirement is reversible error. The appellate court agreed with respondent. The appellate court held that a trial court's failure to provide the required written factual basis in its dispositional order [is] reversible error. 347 Ill.App.3d at 1028, 284 Ill.Dec. 99, 809 N.E.2d 221. We review the appellate court's statutory interpretation de novo. In re D.F., 208 Ill.2d 223, 229, 280 Ill.Dec. 549, 802 N.E.2d 800 (2003); In re C.N., 196 Ill.2d 181, 203, 256 Ill.Dec. 788, 752 N.E.2d 1030 (2001). Our primary objective in construing section 2-27(1) is to give effect to the intent of the legislature, presuming the legislature did not intend to create absurd, inconvenient or unjust results. D.F., 208 Ill.2d at 230, 280 Ill.Dec. 549, 802 N.E.2d 800; In re D.D., 196 Ill.2d 405, 418-19, 256 Ill.Dec. 870, 752 N.E.2d 1112 (2001); C.N., 196 Ill.2d at 215, 256 Ill.Dec. 788, 752 N.E.2d 1030. We look first to the plain language of the statute because statutory language is the most reliable indication of the legislature's intent. D.F., 208 Ill.2d at 229, 280 Ill.Dec. 549, 802 N.E.2d 800; C.N., 196 Ill.2d at 210, 256 Ill.Dec. 788, 752 N.E.2d 1030. Section 2-27(1) provides, in relevant part: (1) If the court determines and puts in writing the factual basis supporting the determination of whether the parents, guardian, or legal custodian of a minor adjudged a ward of the court are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and that the health, safety, and best interest of the minor will be jeopardized if the minor remains in the custody of his or her parents, guardian or custodian, the court may at this hearing and at any later point:    (d) commit the minor to the Department of Children and Family Services for care and service   . 705 ILCS 405/2-27(1) (West 2002). Section 2-27(1) instructs that the court put in writing the factual basis for its finding. The Act does not define writing or set forth what type of writing is required. The State argues that a literal reading of the statute would yield an absurd result and unjust consequences not contemplated by the legislature, and that an oral statement on the record is consistent with the purpose of the statute. In giving effect to legislative intent, the court should consider, in addition to the statutory language, the reason for the law, the problems to be remedied, and the objects and purposes sought. People v. Donoho, 204 Ill.2d 159, 171-72, 273 Ill.Dec. 116, 788 N.E.2d 707 (2003). Thus, in construing a statute we consider other interpretative aids, such as the reason and necessity for the statute and the purpose served by it. Donoho, 204 Ill.2d at 172, 273 Ill.Dec. 116, 788 N.E.2d 707; People v. Whitney, 188 Ill.2d 91, 241 Ill.Dec. 770, 720 N.E.2d 225 (1999). The purpose of the Act is to secure care and guidance for minors and to serve the safety and moral, emotional, mental, and physical welfare of minors and the best interest of the community. 705 ILCS 405/1-2(1) (West 2002). Accord C.N., 196 Ill.2d at 209, 256 Ill.Dec. 788, 752 N.E.2d 1030 (the overriding purpose of the Act is to ensure that the best interests of the minor, the minor's family, and the community are served). The Act grants circuit courts authority to make custody determinations in the best interests of the child. 705 ILCS 405/1-3(8)(c) (West 2002). Further, under the appropriate circumstances, the Act directs that the State secure permanency for minors at the earliest opportunity. 705 ILCS 405/1-2(1) (West 2002). See also 705 ILCS 405/1-2(2) (West 2002) (In all proceedings under this Act the court may direct the course thereof so as promptly to ascertain the jurisdictional facts and fully to gather information bearing upon the current condition and future welfare of persons subject to this Act); In re D.S., 198 Ill.2d 309, 328, 261 Ill.Dec. 281, 763 N.E.2d 251 (2001) (`it is not in [a minor's] best interests for his status to remain in limbo for an extended period of time,' the circuit court should `consider, in an expedited manner, cases involving [such children], so that the minors whose futures are at stake in [juvenile] proceedings can obtain a prompt, just, and final resolution of their status'), quoting In re D.L., 191 Ill.2d 1, 13, 245 Ill.Dec. 256, 727 N.E.2d 990 (2000); In re Tekela, 202 Ill.2d 282, 296, 269 Ill.Dec. 119, 780 N.E.2d 304 (2002) (from the child's perspective, the best solution is an expeditious resolution of the appeal). The Act is to be liberally construed to carry out its stated purpose and policy. 705 ILCS 405/1-2(4) (West 2002). A dispositional hearing held pursuant to section 2-27(1) concerns the legal custody and guardianship of a minor and permits the removal of the child from a parent under the appropriate circumstances. See 705 ILCS 405/2-27(1) (West 2002). The purpose of a dispositional hearing held pursuant to section 2-27(1) is not to terminate parental rights, but rather to decide what future actions are in the best interests of the child and whether to make the child a ward of the court. See generally D.F., 208 Ill.2d at 241, 280 Ill.Dec. 549, 802 N.E.2d 800; see also In re April C., 326 Ill.App.3d 225, 237, 260 Ill.Dec. 6, 760 N.E.2d 85 (2001) (discussing the different standards of proof of unfitness in a proceeding seeking to remove custody pursuant to section 2-27(1) compared to a proceeding seeking the termination of parental rights held pursuant to section 2-29). Thus, where the State does not also seek to terminate parental rights, a proceeding held pursuant to section 2-27(1) is concerned only with placement of the minor. See April C., 326 Ill.App.3d at 238, 260 Ill.Dec. 6, 760 N.E.2d 85. With this in mind, we conclude that the writing requirement contained in section 2-27(1) exists to give the parties notice of the reasons forming the basis for the removal of the child and to preserve this reasoning for appellate review. Explicit oral findings stated during a dispositional hearing advise the parties of the basis for the removal of the minor and, once transcribed, provide an equal opportunity to review the validity of the findings on appeal as well as written findings contained in an order. [2] Respondent's suggested interpretation of section 2-27(1) unnecessarily elevates form over substance and disrupts the adjudication of a minor for purely technical defects that do not prejudice the parties. In light of the Act's stated purpose and policy — securing permanency for minors in a timely manner — it is unlikely that the legislature meant to include the formalistic technical requirement suggested by respondent. In some jurisdictions, where resources are scarce, respondent's suggested interpretation has the potential to disrupt and delay the expeditious resolution of a minor's placement. Thus, we decline to adopt respondent's interpretation of section 2-27(1). In reaching this conclusion, we also draw upon several appellate court cases discussing separate provisions of the Act with similar writing requirements. In In re Z.Z., the appellate court considered whether the absence of a written finding in an adjudication for neglect required reversal of the trial court's order. In re Z.Z., 312 Ill.App.3d 800, 803-04, 245 Ill.Dec. 220, 727 N.E.2d 667 (2000). In particular, the appellate court considered section 2-21 of the Act, which provides that if the court finds that a minor is neglected the court shall then determine and put in writing the factual basis supporting that    determination. 705 ILCS 405/2-21 (West 2002). The appellate court observed that the trial court made explicit oral findings on the record, and concluded that the lack of a written order was a purely technical defect that did not prejudice respondent. Z.Z., 312 Ill.App.3d at 804, 245 Ill.Dec. 220, 727 N.E.2d 667. The appellate court concluded that it would be a waste of judicial resources to remand this cause solely to allow the trial court to reiterate its findings in a written order. Z.Z., 312 Ill.App.3d at 804, 245 Ill.Dec. 220, 727 N.E.2d 667. In In re S.E., the appellate court considered whether an oral ruling was sufficient to comply with section 2-28 of the Act. In re S.E., 319 Ill.App.3d 937, 945, 253 Ill.Dec. 875, 746 N.E.2d 323 (2001). Section 2-28 provides, [i]n selecting any permanency goal, the court shall indicate in writing the reasons the goal was selected and why the preceding goals were ruled out. 705 ILCS 405/2-28 (West 2002). The trial court's written order contained nonspecific factual information. The trial court, however, orally explained its ruling and detailed the history of the case and the respondents' lack of participation or attempts to complete the items listed in the service plan. In its oral statement, the trial court further referenced the respondents' alcohol and drug abuse, homelessness, antisocial behavior, criminal behavior, and violent tendencies. Consequently, the appellate court held: In light of the overwhelming volume of cases    and the bare-bones support staff at the disposal of those [juvenile] courts, a court's oral pronouncement of its ruling should be viewed as sufficient to comply with section 2-28(2) of the Act if (1) those pronouncements appear in the record and (2) they would constitute a sufficient statement of the court's findings if the court had turned to the court reporter and requested that its oral pronouncement be typed up and printed in the form of an order. In other words, so long as something exists in the record stating the basis for the court's determination, the writing requirement should be deemed satisfied, regardless of whether the `writing' was prepared by the court reporter or the court's administrative staff. S.E., 319 Ill.App.3d at 945, 253 Ill.Dec. 875, 746 N.E.2d 323. See also In re Kenneth F., 332 Ill.App.3d 674, 684-85, 266 Ill.Dec. 189, 773 N.E.2d 1259 (2002) (holding that the trial court's oral ruling satisfied the writing requirement contained in section 2-28 of the Act because in its oral ruling the trial court specifically relied on DCFS and CASA reports, and these reports adequately contained the basis for the court's decision). Finally, in In re K.S., the appellate court deemed explicit oral findings on the record sufficient to satisfy the writing requirement of section 2-31(2) of the Act. In re K.S., 317 Ill.App.3d 830, 833, 251 Ill.Dec. 344, 740 N.E.2d 425 (2000). Section 2-31(2) provides, [w]henever the court determines, and makes written factual findings, that health, safety, and the best interests of the minor and the public no longer require the wardship of the court, the court shall order the wardship terminated and all proceedings    finally closed and discharged. 705 ILCS 405/2-31(2) (West 2002). The appellate court held that the trial court's oral statements sufficiently stated the basis for the court's finding, and remanding the matter to reiterate the findings in a written order was, therefore, unnecessary. K.S., 317 Ill.App.3d at 833, 251 Ill.Dec. 344, 740 N.E.2d 425. Likewise, we also conclude that an oral finding on the record may satisfy section 2-27(1), provided that it is explicit and advises the parties of the basis for the court's decision. Therefore, we disagree with the appellate court's conclusion that section 2-27(1) requires that the written dispositional order contain the factual basis for the court's determination. We now examine whether the trial court's oral statement on the record in the instant matter was explicit and advised respondent of the basis for its determination. Our examination reveals that the trial court's oral finding is neither explicit nor fact-specific to respondent. The testimony presented at the dispositional hearing on March 7, 2003, and the reports considered by the court clearly indicate that respondent's developmental disability prompted the trial court's finding. However, a review of the trial court's oral statement on the record makes no mention of respondent's developmental disability and we cannot know what facts in particular the court relied upon in making its finding. The trial court's oral statement merely provides that it is in the health, safety and in the interest of the minor, that the parents are unable to care for, protect, train, properly discipline, and that the child's health, safety and best interest would be jeopardized if the child remained in the parents' custody. These statements mirror the statutory language — no meaningful specific factual basis is evident. The trial court only stated that it has concerns about respondent's skills, and unlike the trial court in In re S.E., here the trial court did not further elaborate upon its concerns. Like the preprinted dispositional order described previously, the statements on the record lack the because and facts forming the basis for the trial court's finding. Thus, we conclude that the oral statement on the record is generic and fails to give the respondent fair notice of the reasons for its decision and, therefore, does not satisfy section 2-27(1). Cf. In re M.Z. 294 Ill.App.3d 581, 600, 229 Ill.Dec. 99, 691 N.E.2d 35 (1998) (declining to address the merits and remanding the matter to the trial court to state the factual basis for its findings, holding that the trial court's inadequate writing and brief statement on the record did not indicate the factual basis for the trial court's finding of neglect or abuse pursuant to section 2-21(1) of the Act). Accordingly, we affirm the appellate court's remand to the trial court for the limited purpose of allowing the trial court to enter more specific findings, consistent with the requirements of section 2-27(1). Finally, we note respondent's contention that there was insufficient evidence to support the trial court's finding that custody and guardianship be given to DCFS. The State argues that respondent did not raise this issue on appeal, and directs our attention to the appellate court opinion: In this appeal, respondent does not contest the sufficiency of the evidence to support the trial court's dispositional order. She argues only that the cause must be remanded    because the court failed to comply with [the statute's writing requirement]. 347 Ill.App.3d at 1026, 284 Ill.Dec. 99, 809 N.E.2d 221. Despite respondent's current creative efforts to recraft the issue statement contained in her appellate court brief as a sufficiency-of-the-evidence argument, it is abundantly clear that she did not argue the sufficiency of the evidence on appeal. Respondent's appeal was limited to the statutory writing requirement contained in section 2-27(1). Thus, by not objecting during the proceedings or raising the issue in a posttrial motion, or even on appeal to the appellate court, the respondent has forfeited this issue for purposes of our review. See People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988).",analysis
+775,2572696,1,3,"
+Two separate and distinct types of insurance coverage are involved in this case—PIP and UIM. PIP coverage generally provides benefits for the immediate costs of an automobile accident, including medical expenses and loss of income. UIM coverage, which functions separately from PIP coverage, covers all damages that the insured would have been entitled to receive from the tortfeasor, including the medical expenses, loss of income, and other damages that are also covered by PIP. See RCW 48.22.030(UIM),.085(PIP). UIM and PIP coverages may overlap with each other and with any potential recovery from the tortfeasor. Although UIM and PIP carriers are permitted to account for any eventual coverage overlap, accounting for overlapping coverage is accomplished differently for UIM carriers than for PIP carriers. For purposes of UIM coverage, the insurance carrier is said to stand in the shoes of the tortfeasor, and payments made by the UIM carrier are treated as if they were made by the tortfeasor. Britton v. Safeco Ins. Co. of Am., 104 Wash.2d 518, 529, 707 P.2d 125 (1985); Winters, 144 Wash.2d at 880, 31 P.3d 1164. Accordingly, UIM carriers are entitled to set off the amount of any tortfeasor recovery from the amounts owed to an insured under a UIM policy. [2] Hamilton v. Farmers Ins. Co. of Wash., 107 Wash.2d 721, 728, 733 P.2d 213 (1987) (a UIM carrier always is allowed to credit the full amount of the tortfeasor's liability coverage against the insured's damages). UIM carriers do not need to pay a pro rata portion of the legal expenses the insured incurs to arbitrate a UIM claim in order to take a setoff. Dayton v. Farmers Ins. Group, 124 Wash.2d 277, 281, 876 P.2d 896 (1994) (When a tortfeasor carries insurance, the claimant insured bears his or her own attorney fees in the arbitration proceedings. Thus, when the UIM insurer stands in the shoes of the uninsured tortfeasor, the claimant insured should likewise bear his or her own attorney fees. (citation omitted)). In contrast, PIP carriers generally contract for a right to receive reimbursement of PIP benefits if an insured recovers from the tortfeasor, a UIM carrier, or both. While the insured pursues her tortfeasor and UIM claims, the PIP carrier provides benefits to cover the insured's immediate costs, such as medical expenses. If the insured subsequently recovers the total amount of her damages from another source (the tortfeasor, her UIM carrier, or both), the PIP coverage becomes redundant. Therefore, when the insured receives full recovery, the PIP carrier may seek reimbursement from its insured for the PIP benefits it previously paid. See Winters, 144 Wash.2d at 876, 31 P.3d 1164 (the insured must be fully compensated before the insurer may recoup benefits paid). Pursuant to Mahler and Winters, if the PIP carrier seeks reimbursement from the funds obtained through the insured's efforts, the PIP carrier must pay a pro rata share of the insured's legal expenses. Mahler, 135 Wash.2d at 436, 957 P.2d 632; Winters, 144 Wash.2d at 883, 31 P.3d 1164. As we discuss below, Mahler established this PIP pro rata sharing rule for cases where the tortfeasor is fully insured, and Winters extended the rule to cases where the tortfeasor is underinsured. This case presents the issue of PIP pro rata sharing in cases where the tortfeasor is uninsured.
+In Mahler, the insured was injured by a fully insured tortfeasor. Her medical expenses were initially paid for by her PIP carrier. Subsequently, the insured recovered her full damages, including medical expenses, from the tortfeasor. Once the insured was fully compensated, her PIP carrier sought reimbursement of the PIP benefits it paid. We ruled that a PIP carrier seeking reimbursement from the fund created by the insured must pay a pro rata share of the legal expenses the insured incurred in order to recover from the tortfeasor. Mahler, 135 Wash.2d at 407, 436, 957 P.2d 632. As explained in Mahler: This equitable sharing rule is based on the common fund doctrine, which, as an exception to the American Rule on fees in civil cases, applies to cases where litigants preserve or create a common fund for the benefit of others as well as themselves. Id. at 426-27, 957 P.2d 632. The common fund in Mahler consisted of the recovery the insured obtained from the tortfeasor only. From this fund, the insured was compensated and the PIP carrier was reimbursed. Because the PIP carrier reimbursed itself from a fund that the insured created, the PIP carrier was obligated to pay a pro rata share of the legal expenses incurred by the insured to create the fund. Id. at 436, 957 P.2d 632.
+In Winters, the insured, Sarah Winters, was injured by an underinsured tortfeasor. [3] Her immediate medical expenses were covered by payments from her PIP carrier. Winters then sought recovery from the tortfeasor and recovered the maximum limits of the tortfeasor's liability coverage. Because the tortfeasor recovery did not fully compensate her, she also pursued a UIM claim. Unlike the insured in Mahler, Winters was not fully compensated until she recovered from both the tortfeasor and her UIM carrier. Once she was fully compensated, her PIP carrier was able to seek reimbursement for the PIP benefits it paid, subject to its obligation to pay a pro rata share of the legal expenses incurred by Winters in creating the fund. Winters, 144 Wash.2d at 881, 31 P.3d 1164. As explained in Winters, [t]hese pooled funds became the common fund from which the PIP insurer was able to recoup payments it had made. Id. Winters clarified that the pro rata sharing rule articulated in Mahler is based on equitable principles, not specific policy language, and applies to PIP reimbursements from UIM recoveries as well as from tortfeasor recoveries. Id. at 878-79, 881, 31 P.3d 1164. In cases like Winters, where PIP coverage and UIM coverage are provided by the same insurance carrier, the reimbursement to the PIP carrier typically comes in the form of an offset applied to the UIM obligation. Even though the offset appears to result in a reduction to the UIM obligation, the offset functions as a mechanism to account for the PIP reimbursement and is available only when the same insurance carrier provides both PIP and UIM coverage. In cases where the PIP and UIM carriers are separate companies, the PIP carrier remains entitled to receive actual reimbursement, and the UIM carrier remains obligated to pay the entire amount of the UIM award. In such cases, no opportunity for an offset exists. When the PIP and UIM carrier is the same, however, an offset against the UIM obligation is an acceptable mechanism to account for the PIP reimbursement rights. Mahler, 135 Wash.2d at 436, 957 P.2d 632 (Provided the insurer recognizes the public policy in Washington of full compensation of insureds and its other duties to insureds by statute, regulation, or common law, the insurer may establish its right to reimbursement and the mechanism for its enforcement by its contract with the insured). [4] Winters also makes clear that Dayton and Mahler are applied separately to an insurance carrier that provides both UIM and PIP insurance to the same insured. Winters, 144 Wash.2d at 882-83, 31 P.3d 1164. An insurance carrier that provides both UIM and PIP benefits is not required to pay a pro rata share of legal expenses as UIM carrier in order to take a UIM setoff pursuant to Dayton, but is required to pay a pro rata share of legal expenses as PIP carrier in order to take a PIP offset pursuant to Mahler and Winters. Id. The fact that an insurance company providing both PIP and UIM coverage chooses to use an offset from its UIM obligations to account for its PIP reimbursement does not relieve the insurance carrier of its burdens under Mahler and Winters. As the Winters court concluded: The insured should not be worse off simply because he or she purchased two coverages from the same insurer. Id. at 882, 994 P.2d 881.
+In Mahler, the insured was injured by a fully insured tortfeasor and was fully compensated by the funds recovered from the tortfeasor. In Winters, the insured was injured by an underinsured tortfeasor and the recovery included funds from the tortfeasor and the insured's UIM carrier. In this case, Hamm was injured by an uninsured tortfeasor and recovered only from her UIM carrier. As stated above, the question in this case is whether the equitable principle requiring a PIP carrier to share pro rata in the legal expenses of its insured in order to obtain reimbursement of PIP benefits applies when the insured recovers only from her UIM carrier. We hold that it does and reverse the Court of Appeals. In its order on remand, the Court of Appeals concludes that Hamm's UIM carrier received no benefit. Hamm, 115 Wash.App. at 777, 60 P.3d 640 (emphasis added). Focusing on State Farm's capacity as UIM carrier, the Court of Appeals decided that Hamm is not entitled to reimbursement from her UIM carrier for the legal expenses she incurred to create the UIM arbitration award. Id. at 778, 60 P.3d 640. In doing so, the Court of Appeals applied the rule for UIM carrier setoffs from Dayton rather than the rule for PIP carrier offsets from Mahler and Winters. The Court of Appeals' conclusions with respect to State Farm's obligations in its capacity as UIM carrier may be correct. As in Winters, however, [t]he question presented here is totally different: whether or not the PIP carrier should pay a pro rata share of legal expenses for its insured in recovering PIP benefits from an UIM insurer. Winters, 144 Wash.2d at 882, 31 P.3d 1164. Although the Court of Appeals notes that [i]t appears that Hamm is seeking to have State Farm pay a portion of her fees in its capacity as PIP carrier, it erroneously concludes that  Winters is distinguishable because Hamm's PIP carrier received no reimbursement, Hamm, 115 Wash.App. at 778, 60 P.3d 640, and State Farm as UIM carrier received an offset for the PIP payment previously made. Hamm, 115 Wash. App. at 777 n. 1, 60 P.3d 640. [5] The offset at issue in this case, just as in Winters, is a benefit to the PIP carrier, not the UIM carrier. The Court of Appeals' decision to the contrary appears to be based on two erroneous mathematical conclusions. First, the Court of Appeals concludes that applying Winters would put State Farm in a worse position than two separate carriers providing PIP and UIM coverage under the same circumstances. Id. at 777, 60 P.3d 640 (an insurance carrier should not be penalized simply because it provides both UIM coverage and medical payment coverage through PIP ... coverage). Second, the Court of Appeals mistakenly concludes that [a]s in Dayton, Hamm would be in a better position for having been injured by an uninsured driver than an insured driver if State Farm were required to pay a share of her fees and costs. Id. at 779, 60 P.3d 640. As the tables below demonstrate, an insurance carrier providing both UIM and PIP coverage is not penalized when it is required to pay a pro rata share of legal expenses in order to receive its PIP reimbursement. The following tables compare the position of separate PIP and UIM carriers (table A) with State Farm's position under Winters (table B) and State Farm's position under the Court of Appeals' holding (table C). Table A Separate PIP and UIM Carriers, Un insured Tortfeasor PIP benefits from insurance company A + $ 8,669.71 UIM award from insurance company B + 16,000.00 Legal expenses to arbitrate UIM claim - 6,634.06 Reimbursement to PIP carrier - 8,669.71 PIP pro rata share of legal expenses [6] + 3,582.39 Hamm's total recovery [7] = $12,948.33 _________ Net combination of PIP and UIM payments [8] $19,582.39 Table B PIP and UIM from State Farm, Un sured Tortfeasor PIP benefits from State Farm + $ 8,669.71 UIM award from State Farm + 16,000.00 Legal expenses to arbitrate UIM claim - 6,634.06 Reimbursement offset - 8,669.71 PIP pro rata share of legal expenses + 3,582.39 Hamm's total recovery = $12,948.33 _________ State Farm's net PIP and UIM payments $19,582.39 Table C PIP and UIM from State Farm, Un insured Tortfeasor, No Pro Rata Sharing from PIP (Court of Appeals' holding) PIP benefits from State Farm + $ 8,669.71 UIM award from State Farm + 16,000.00 Legal expenses to arbitrate UIM claim - 6,634.06 Reimbursement offset - 8,669.71 PIP pro rata share of legal expenses + 0.00 Hamm's total recovery = $ 9,365.94 _________ State Farm's net PIP and UIM payments $16,000.00 By applying the facts of this case and comparing the combined position of separate PIP and UIM carriers to State Farm's combined position as PIP and UIM carrier, it is clear that State Farm would not be prejudiced by an application of Mahler and Winters. Quite the opposite, by not following Mahler and Winters, the Court of Appeals provides State Farm with a windfall when compared with separate carriers and puts Hamm in a worse position than if she had been covered by separate carriers. The Court of Appeals' outcome directly conflicts with Winters' holding that [t]he insured should not be worse off simply because he or she purchased two coverages from the same insurer. Winters, 144 Wash.2d at 882, 31 P.3d 1164. Our decision that the Court of Appeals incorrectly concluded that Hamm would be in a better position than if she had been injured by a fully insured or underinsured driver is demonstrated by comparing Hamm's position in the following five scenarios: (1) separate PIP and UIM carriers with an un insured tortfeasor (table A), (2) State Farm as PIP and UIM carrier with an uninsured tortfeasor (table B), (3) State Farm as PIP and UIM carrier with an uninsured tortfeasor and no pro rata sharing of legal expenses by PIP carrier (table C; Court of Appeals' holding), (4) State Farm as PIP and UIM carrier with a fully insured tortfeasor (table D; Mahler ), and (5) State Farm as PIP and UIM carrier with an underinsured tortfeasor (table E; Winters ). Table D PIP and UIM from State Farm, Fully Insured Tortfeasor ( Mahler ) PIP benefits from State Farm + $ 8,669.71 Recovery from tortfeasor's carrier + 16,000.00 Legal expenses to recover from tortfeasor - 6,634.06 Reimbursement of PIP payments to State Farm - 8,669.71 PIP pro rata share of legal expenses + 3,582.39 _________ Hamm's total recovery = $12,948.33 Table E PIP and UIM from State Farm, Under insured Tortfeasor ( Winters ) PIP benefits from State Farm + $ 8,669.71 Recovery from tortfeasor's carrier + 10,000.00 UIM award from State Farm + $16,000.00 Setoff for tortfeasor recovery (no pro rata share pursuant to Dayton ) - 10,000.00 Legal expenses to recover from tortfeasor and to arbitrate UIM claim - 6,634.06 Reimbursement offset - 8,669.71 PIP pro rata share of legal expenses + 3,582.39 _________ Hamm's total recovery = $12,948.33 As tables A through E demonstrate, applying Mahler and Winters would place State Farm in the same position as two separate PIP and UIM carriers, and would place Hamm in the same position she would have been in had two separate carriers provided her insurance. In contrast, failing to apply Mahler and Winters would provide State Farm a windfall, vis-à-vis separate carriers providing the identical coverage, and Hamm would be in a worse position than if she carried insurance from separate carriers. In addition, application of Mahler and Winters puts Hamm in no better and no worse position than if she had been hit by a fully insured tortfeasor or an underinsured tortfeasor. [9] In contrast, under the Court of Appeals' decision, Hamm would be in a worse position than if she had been hit by a fully insured or underinsured tortfeasor. Finally, if we apply Mahler and Winters, State Farm would be in the same position in its capacity as PIP carrier as it would be if (a) it provided only PIP insurance to Hamm, (b) Hamm had been hit by a fully insured tortfeasor, or (c) Hamm had been hit by an underinsured tortfeasor. State Farm's varying obligations as a carrier under these different factual scenarios would arise only in its capacity as a UIM carrier. [10] As in Winters, the issue presented in this case does not depend on State Farm's role as UIM carrier but rather on whether or not the PIP carrier should pay a pro rata share of legal expenses for its insured in recovering PIP benefits from an UIM insurer. Winters, 144 Wash.2d at 882, 31 P.3d 1164. We hold that State Farm must pay a pro rata share of Hamm's legal expenses in order to take the PIP reimbursement offset, and reaffirm Winters' holding that an insured should not be worse off simply because she purchased two coverages from the same insurer.
+State Farm claims that Hamm received $8,669.71 in PIP benefits and $7,330.29 in UIM benefits. In fact, it is undisputed that the UIM arbitrator awarded plaintiff $16,000.00 in UIM benefits, not $7,330.29. The only difference between State Farm's position vis-à-vis two separate carriers providing the same types of coverage is that State Farm chose to receive its PIP reimbursement through an offset instead of the UIM carrier tendering a check for $16,000.00 and the PIP carrier receiving a check for $8,669.71. As discussed above, the fact that an insurance carrier providing both PIP and UIM coverage can account for the PIP reimbursement by using an offset does not convert the PIP reimbursement into a limitation on UIM coverage. Thus, in effect, Hamm received $16,000.00 from State Farm in its capacity as UIM carrier and no money from State Farm as PIP carrier because, as PIP carrier, State Farm was reimbursed the entire amount of its prior PIP payments. Just as any PIP carrier under Mahler and Winters, State Farm must pay a pro rata share of its insured's legal expenses in order to receive the PIP reimbursement. State Farm also suggests that Winters excludes UIM recoveries without a tortfeasor contribution from the definition of a common fund because it states when a PIP insured creates a common fund from liability payments and UIM benefits, the common fund combines liability proceeds from the tortfeasor's insurance carrier and UIM proceeds from the insured's underinsured motorist carrier. Winters, 144 Wash.2d at 880, 31 P.3d 1164 (emphasis added). This language, however, is merely descriptive of the factual situation present in Winters, and does not function as a restrictive definition of the necessary elements of a common fund. Neither Winters nor Mahler holds that a common fund cannot consist solely of UIM benefits, and we decline to do so now. Despite suggesting Winters requires the common fund to be a combination of tortfeasor recovery and UIM recovery, State Farm next argues that the money for reimbursement of the PIP carrier must come only from the tortfeasor. See Mahler, 135 Wash.2d at 411, 957 P.2d 632 (ultimate responsibility for a wrong or loss [should be imposed] on the party who, in equity and good conscience, ought to bear it). State Farm then argues that Winters recognized the insured's own insurance carrier cannot be the wrongdoer and, therefore, it is the tortfeasor who must ultimately reimburse the PIP carrier for the PIP benefits it paid. See Winters, 144 Wash.2d at 882, 31 P.3d 1164. Although we agree with State Farm that the insured's own insurance carrier is not an actual wrongdoer, State Farm's argument ignores that UIM payments are treated as if made by the tortfeasor. Winters, 144 Wash.2d at 880, 31 P.3d 1164; see also Finney v. Farmers Ins. Co., 92 Wash.2d 748, 751, 600 P.2d 1272 (1979) (the purpose of UIM coverage is to allow an injured party to recover those damages which would have been received had the responsible party maintained [sufficient] liability insurance). We reiterate that UIM payments are treated as if made by the tortfeasor. PIP carriers may be reimbursed when the insured recovers from the tortfeasor, the tortfeasor and a UIM carrier, or a UIM carrier alone. As a procedural matter, State Farm would have us hold that Hamm could not create a common fund for the benefit of State Farm as her UIM carrier because State Farm, as such, was the adverse party to the UIM proceedings. This argument fails because the common fund benefited State Farm in its capacity as PIP carrier, not as UIM carrier, and PIP carriers are not adverse parties in UIM proceedings. State Farm also argues that the common fund doctrine cannot apply because State Farm retained its right to sue the uninsured motorist to recover its PIP payments. State Farm could have pursued the uninsured motorist to recover its PIP payments but State Farm chose not to do so, perhaps realizing that it would have been as futile for it to try to extract money from an uninsured motorist as it would have been for Hamm to try to do so. Instead, State Farm recovered its PIP payments through reimbursement and must pay the required pro rata share of Hamm's legal expenses. As persuasive authority that Hamm's request for pro rata legal expenses based on the common fund doctrine be denied, State Farm cites to Johnson v. State Farm Mutual Automobile Insurance Co., 323 Ill.App.3d 376, 256 Ill.Dec. 569, 752 N.E.2d 449 (2001). Johnson, however, was based on an interpretation of specific policy language and the authority of arbitrators to consider various portions of the policy language. See id. at 383, 256 Ill.Dec. 569, 752 N.E.2d 449. As Winters clarifies, the rule requiring a pro rata sharing of legal expenses is based on equitable principles and not on construction of specific policy language. Winters, 144 Wash.2d at 878-79, 31 P.3d 1164. Accordingly, we do not find Johnson persuasive. Finally, State Farm quotes language the legislature omitted from the 1993 PIP statute, RCW 48.22.085, that would have specifically required the type of PIP pro rata sharing of legal expenses later required in Mahler and Winters. Whatever the relevance of the legislature's unknown intent in omitting this language (State Farm does not cite any legislative history explaining why the quoted language was omitted), both Mahler and Winters were decided after the effective date of the PIP statute. Nothing in the omitted language suggests that the PIP pro rata sharing rule from Mahler or Winters should not be applied in this case.",analysis
+776,1392154,1,3,"Appellant argues the trial judge should have submitted to the jury the mitigator relating to capacity, without regard to whether Appellant made a specific request for that mitigating circumstance at trial. We disagree. The proper procedure for the submission of statutory mitigating circumstances to the jury in the penalty phase of a capital case is found in State v. Victor, 300 S.C. 220, 224, 387 S.E.2d 248, 250 (1989): Once a trial judge has made an initial determination of which statutory mitigating circumstances are supported by the evidence, the defendant shall be given an opportunity on the record: (1) to waive the submission of those he does not wish considered by the jury; and (2) to request any additional mitigating statutory circumstances supported by the evidence that he wishes submitted to the jury. Our recent cases have stated that absent a request by counsel to charge a mitigating circumstance at trial, the issue whether the mitigator should have been charged is not preserved for review. See State v. Humphries, 325 S.C. 28, 36, 479 S.E.2d 52, 57 (1996); State v. Vazquez, 364 S.C. 293, 301, 613 S.E.2d 359, 363 (2005); State v. Bowman, 366 S.C. 485, 494, 623 S.E.2d 378, 383 (2005); and State v. Sapp, 366 S.C. 283, 621 S.E.2d 883, n. 3 (2005). Appellant cites State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990), to support his position. In Caldwell, we held the trial judge erred by failing to charge the mitigating circumstances found in S.C.Code Ann. § 16-3-20(C)(b)(2), (6), and (7) after evidence was presented of the defendant's mental disorder, even though these mitigating charges were never requested. Caldwell, however, does not support Appellant's position because we reviewed that error in favorem vitae. [4] Caldwell, 300 S.C. at 506, 388 S.E.2d at 823. We abolished the doctrine of in favorem vitae in State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (Toal, J., concurring). In Torrence we stated, a contemporaneous objection is necessary in all trials beginning after the date of this opinion to properly preserve errors for our direct appellate review. Torrence, 305 S.C. at 69, 406 S.E.2d at 328. Two post-Torrence cases have held that when the defendant is intoxicated at the time of the capital crime, the trial judge must submit three statutory mitigating circumstances [5] to the jury. See State v. Young, 305 S.C. 380, 409 S.E.2d 352 (1991); State v. Stone, 350 S.C. 442, 567 S.E.2d 244 (2002). Recent cases have cited Stone as holding that a trial judge is required to charge those intoxication mitigators regardless whether they are requested at trial. See, e.g., Bowman, 366 S.C. at 494, 623 S.E.2d at 383 (acknowledging holding of State v. Stone, supra , as requiring trial court to submit mitigating circumstances to jury if there is evidence of intoxication, regardless of whether they are requested); Vazquez, 364 S.C. at 301, 613 S.E.2d at 363 (same). We never explicitly stated in Young, Stone, or any other intoxication case that statutory mitigating circumstances related to intoxication must be submitted to the jury even if the defendant does not request them. [6] Our intoxication cases have not created an exception to the post-Torrence preservation requirements for challenging jury charges during a capital sentencing proceeding. Although there is some evidence of drinking in the days leading up to the incident, intoxication at the time of murders is not at issue here. Appellant argues that this purported preservation exception in intoxication cases also applies to mitigators stemming from mental disorders. For the reasons previously stated, no such exception exists. By failing to make a contemporaneous objection or request for the capacity mitigator, Appellant did not properly preserve this issue for our review. Accordingly, we decline to address whether the evidence supported the submission of the mitigating circumstance of Appellant's capacity.",analysis
+777,2554148,1,4,"For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. The record of the case shall be remanded to the Superior Court.",conclusion
+778,3161170,1,4,"For the reasons set forth above, we affirm the judgment of the Superior Court. The papers in this case shall be returned to that court. 4 Indeed, had Correira represented both Poulin and Audette, he arguably would be in violation of Article V, Rule 1.7(b) of the Supreme Court Rules of Professional Conduct, which provides in pertinent part that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client[.]” -7- RHODE ISLAND SUPREME COURT CLERK’S OFFICE Clerk’s Office Order/Opinion Cover Sheet TITLE OF CASE: Richard Audette v. Donald Poulin et al. CASE NO: No. 2015-53-Appeal. (PB10-7589) COURT: Supreme Court DATE OPINION FILED: December 9, 2015 JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. WRITTEN BY: Associate Justice Gilbert V. Indeglia SOURCE OF APPEAL: Providence County Superior Court JUDGE FROM LOWER COURT:",conclusion
+779,1861161,1,1,"The provisions of Sections 16-12-04 and 16-13-01(1), N.D.C.C., are held to be not applicable to absent-voter ballots counted pursuant to Section 16-18-14, N.D.C.C., and, under the facts of this case and for the reasons above stated, the 35 challenged ballots are held to be valid. The relief requested in Morgan's petition is denied. ERICKSTAD, C. J., PAULSON, J., and DOUGLAS B. HEEN and A. C. BAKKEN, District Judges, concur. HEEN and BAKKEN, District Judges, sitting for PEDERSON and SAND, JJ., disqualified. PAULSON, J., participating on the briefs.",conclusion
+780,1274461,1,1,"Cynthia S. Peter and James B. Peter were divorced in June 1998. In October 1999, Cynthia brought an action in Lancaster County District Court to modify the decree of dissolution, requesting an increase in James' child support obligation. In January 2000, James filed his own petition to modify, alleging that Cynthia had fraudulently failed to disclose certain assets at the time their marital estate was divided. The district court denied Cynthia's petition for modification and granted James' petition in part. Cynthia appealed, and James cross-appealed. While the case was on appeal, James filed with the district court a motion to amend the bill of exceptions. The district court denied the motion. James also appeals the district court's refusal to grant his motion to amend the bill of exceptions.",introduction
+781,4572345,1,1,"Juan Gonzalez Martinez appeals from his conviction, pursuant to a jury verdict, and sentence for first degree sexual assault. Martinez primarily argues that the English translation of his Spanish out-of-court statements was inadmissible hearsay. Because the State made a threshold showing of the translator’s qualifications, the translator testified at trial, and the translator was subject to cross-examination, the translation was admissible as nonhearsay and the challenges to it went to its weight. We find no merit in his remaining claims regarding the exclusion of residual hearsay evidence, admission of prior sexual conduct, waiver of his Miranda rights, sufficiency of the evidence to sustain his conviction for sexual assault, and excessive sentence. We affirm.",introduction
+782,1782064,1,1,"The victim, her parents, and her fiancee, accompanied by a group of friends and business acquaintances, traveled from Houston to attend the Crawfish Festival at Breaux Bridge. Arriving at the festival grounds around noon, the victim and her companions enjoyed the festivities while she consumed a disputed amount of alcoholic beverages. [1] In the late afternoon, the victim became separated from her friends. She met defendant and his companion, Todd Aubrey, on the festival grounds. After a few minutes of conversation, she accepted their offer to accompany them to a convenience store to purchase additional beer. The ensuing events were disputed. According to the victim, she was an innocent young woman who naively believed no harm could come by accompanying two strangers on a quick trip to buy some additional beer for herself and her friends at a cost lower than the price of beer sold at the festival. She became suspicious when they passed several stores which obviously sold beer. After the men ignored her requests to return to the festival and made uninvited advances, she became frightened. She was eventually forced to engage in sexual intercourse and oral sex with both men. Although she resisted and even tried to run away at one point, she was overtaken and forcibly restrained. She was afraid to display more resistance because of threats of death. After a period of about six hours, the men released her, taking her jewelry and clothes and leaving her with only a torn shirt and a paper sack to cover her body. She then ran to a house where she called police and relatives. Information provided by the victim led the detectives to suspect defendant and Aubrey. The victim then made photographic identifications of both of them from a high school yearbook. Defendant and Aubrey were indicted for aggravated rape and second degree kidnapping. A trial of Aubrey alone resulted in a mistrial when the jury could not reach a verdict. At the second trial, defendant and Aubrey were tried together for aggravated rape and second degree kidnapping. Their attorneys urged that the sex acts were consensual. After completion of the evidence, the trial judge granted the prosecutor's motion under Article 814C to exclude the statutory responsive verdicts of simple rape and attempted simple rape. [2] The court noted that these verdicts were responsive to the charged offense, but were not responsive to the evidence. Both defendants were convicted of the lesser offenses of forcible rape and simple kidnapping. Each defendant appealed separately. [3] Defendant's conviction and sentence were affirmed by the court of appeal. 615 So.2d 507. On the responsive verdict issue, the court concluded that the trial judge had correctly excluded the responsive verdicts of simple rape and attempted simple rape, stating that the record contained no evidence which would reasonably support guilty verdicts on those offenses. We granted defendant's application for certiorari, being principally concerned with the responsive verdict issue in the rape conviction. 629 So.2d 372. While we affirm the simple kidnapping conviction, concluding that the court of appeal correctly decided the assignments of error pertaining to that conviction, we reverse the forcible rape conviction and remand for a new trial.",facts
+783,2757764,1,1,"¶3. According to BCR’s second amended complaint, BCR is a corporation with its principal place of business and principal offices located in Mississippi. Shortly before April 1, 2011, BCR had a title abstract performed for a parcel of land it sought to purchase in Booneville to identify any liens, outstanding taxes, or clouds on the title. Through the title search, BCR identified approximately $65,000 in liens, clouds on the title, and outstanding taxes under PPIN 1859: 2008 City of Booneville Taxes; PPIN: 1859 $3,230.18 2009 City of Booneville Taxes; PPIN: 1859 $4,753.92 2010 City of Booneville Taxes; PPIN: 1859 $8,287.24 2009 Prentiss County Taxes; PPIN: 1859 $3,346.90 2010 Prentiss County Taxes; PPIN: 1859 $6,098.26 2 2009 Personal Property Taxes $19,822.89 Judgment in favor of Unifirst Corp., Inc. $17,374.03 Lien in favor of MS State Tax Commission $598.64 Lien in favor of MS Employment Sec. Commission $1,593.57 On April 1, 2011, BCR purchased the property from Fortis Plastics, LLC (Fortis), which had acquired the property in 2004. As a condition of closing, BCR demanded that Fortis pay all known outstanding taxes and judgments, and Fortis complied. ¶4. But, unknown to BCR, unpaid property taxes remained. On June 22, 2011, the City mailed BCR two (2) Notices to Lienors of Lands Sold for 2008 Delinquent Taxes. One of the notices revealed that a portion of the property had been designated for taxation purposes as PPIN 18886. This notice also showed that parcel 18886 had been sold on August 31, 2009, to Pine Hills Lands Company, Inc., for $267.19 in taxes due in 2008, and that the property could be redeemed through June 30, 2011. The second notice showed that another portion of the property had been designated as PPIN 18887 and was sold on August 31, 2009, to James L. Shipman for $5,154.27 in taxes due in 2008, and that the property could be redeemed through June 30, 2011. ¶5. When BCR learned of the unpaid 2008 taxes, it made additional inquiries to the City regarding the two newly discovered PPIN numbers. These inquiries revealed that the 2009 taxes for PPIN numbers 18886 and 18887 were also due, in amounts of $302.55 and $7,782.41, respectively, and that that PPIN 18886 had been sold to James L. Shipman for $302.55, and PPIN 18887 had been sold to ACC Tax Sale Properties, LLC, for $7,782.41. BCR further alleged that, as of August 22, 2011, the tax records for the City and Prentiss County showed the following: 3 (1) The City’s tax records for PPIN 18886 for the years 2008-2009 showed that an exemption, good through [December] 2011, applied to the parcel. (2) The City’s tax records for PPIN 18887 for the years 2008-2009 showed that an exemption, good through [December] 2016, applied to the parcel. (3) PPIN 900017 was created to replace PPIN 18886. It encompassed the 2008-09 tax years with a balance due of $3,475.67 rather than the previously identified amounts due of $262.14 and $302.55. (4) PPIN 900018 was created to replace PPIN 18887. It encompassed the 2008-09 tax years with a balance due of $3,348.32 rather than the previously identified amounts due of $5,154.27 and $7,782.41. (5) The Prentiss County Tax Records have “no such landroll receipt record on file” for either PPIN 18886 or 18887 for the tax year of 2009. ¶6. On August 22, 2011, BCR filed a petition for a preliminary injunction and temporary restraining order to prevent the issuance of tax deeds and petition to confirm and quiet title. The chancery court denied injunctive relief. To prevent issuance of tax deeds for failure to pay the outstanding taxes, BCR redeemed the property by paying $5,571.09 to satisfy the 2008 taxes, and $9,394.67 to satisfy the 2009 taxes, including interest and penalties. Subsequently, BCR filed an amended petition to quiet title and a second amended petition to quiet and confirm title and for general damages and other relief against Fortis, the City, Bolden, and Prentiss County. The second amended petition alleged that BCR had provided the City with notice of claim under the MTCA. ¶7. BCR alleged that the PPIN numbers that reflected the outstanding taxes had not been made a part of the public record or cross-referenced with PPIN 1859. BCR further alleged that, because the City and/or Prentiss County negligently failed to provide public notice of the 2008 and 2009 tax sales, BCR had been unable to discover those tax sales despite its diligent efforts to discover all liens upon the property in anticipation of closing. BCR argued 4 that, if the City had made the PPIN references and unpaid taxes a part of the public record, then BCR would have required Fortis to pay the taxes as a condition of closing. Because the City never made this information available, BCR was forced to pay the outstanding taxes to avoid the issuance of tax deeds. BCR prayed for a judgment in the amount of the outstanding taxes, plus interest, and a judgment quieting and confirming title in BCR in fee simple. ¶8. The City and Bolden filed motions to dismiss under Mississippi Rule of Civil Procedure 12(b)(6). They argued that BCR’s claims were subject to the MTCA, which provides immunity for claims that arise “out of the assessment or collection of any tax or fee.” Miss. Code Ann. § 11-46-9(1)(i) (Rev. 2012). Bolden argued that she was in the course and scope of her employment at all times and that she was entitled to MTCA immunity. At the hearing on the motions to dismiss, BCR argued that, because Bolden had not filed the tax-sale list as required by Section 27-41-79, Bolden and the City were subject to liability under Mississippi Code Section 27-41-79, which provides that “[i]f the tax collector or clerk shall fail to perform the duties herein prescribed, he shall be liable to the party injured by such default . . . on his official bond for the actual damage sustained.” Miss. Code Ann. § 2741-79 (Rev. 2010). The chancery court granted the motions to dismiss, holding that (1) under Boyle v. Matthews, 196 Miss. 833, 18 So. 2d 156 (1944), the City and the tax collector owed BCR no duty under Section 27-41-79, and (2) the City and the tax collector are immune from suit on BCR’s negligence claim because it arises from the assessment or collection of taxes. The chancery court entered a final judgment as to the City and Bolden under Mississippi Rule of Civil Procedure 54(b). From that ruling, BCR now appeals.",facts
+784,880247,1,3,"1. Whether the district court abused its discretion by allowing the jury to hear character evidence regarding the criminality of BMC and by allowing the jury to hear the expert opinion testimony of Officer Cantrell, asserting that gang members generally commit crimes and violent acts? 2. Whether the district court erred in failing to suppress Ken Hust’s eyewitness identification as unnecessarily suggestive and unreliable due to pre-trial procedures that were used by the police? 3. Whether the district court abused its discretion by preventing defense expert, Dr. Reisberg, from testifying about the specific procedures used by the police during Ken Hust’s eyewitness identification? 4. Whether the district court abused its discretion by allowing Lieutenant Steele’s testimony interpreting the surveillance video and opining that Almaraz was standing in a “shooter’s crouch” just before Flores was shot? 5. Whether the district court abused its discretion in finding the State had laid a proper foundation to support admitting the testimony of Grant Fredericks, a video expert, regarding the precise moment Flores was shot? 6. Whether the accumulation of errors in the trial deprived Almaraz of a fair trial? 7. Whether the district court abused its discretion by denying Almaraz’ Motion for a New Trial?",issues
+785,1832620,1,3,"The constitutionality of a statute is a question of law, regarding which the Nebraska Supreme Court is obligated to reach a conclusion independent of the determination reached by the trial court. [8] The determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach an independent conclusion. [9] The exercise of judicial discretion is implicit in determinations of relevancy, and a trial court's decision regarding it will not be reversed absent an abuse of discretion. [10] 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. [11] In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. [12] In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. [13] A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. [14]",standard of review
+786,1924861,1,1,"On May 15, 1987, the grand jury of Forrest County indicted Whigham for violation Miss. Code Ann. § 97-5-23. The indictment charged that at some time between December 1 and December 31, 1986, Whigham feloniously and lasciviously touched and rubbed with his hands Norma Pratt [1] , a female child under fourteen years of age, with the felonious intent to satisfy his depraved licentious and lustful desire, and rubbed Norma's breast and vaginal area. Whigham was 23. In 1986 Norma was thirteen years of age. Her natural parents are Stanley and Fiona Pratt. She has a brother, Stewart, who is three years her senior. Whigham and Norma are first cousins. Whigham's mother, Phyllis, is a sister of Norma's father, Stanley. Phyllis and Whigham's father, Wesley, were divorced. Phyllis subsequently married Larry Bounds. This cause came to trial July 17-18, 1988. The State's first witness was Nancy Easterling, a detective with the Hattiesburg Police Department. She testified that, following complaints made by Stanley and Fiona Pratt, Whigham was arrested on January 29, 1987, and at that time denied that he had had any physical contact with Norma for sexual purposes, but that he had touched her on one occasion on her breast but he did not do it for the purpose of sexual reasons. There was no dispute in this case but that Stanley Pratt had been sentenced to the penitentiary for some undisclosed reason and was serving time in a satellite prison. During his imprisonment Whigham had some kind of affair with Fiona Pratt, Norma's mother, and Whigham's aunt by marriage. The second witness was Stewart Pratt. On direct examination he testified as follows: Q. During the day that I just recalled to you, December of 1986, what, if anything, occurred at your apartment there? A. I had come home from a friend's house, when I heard my sister crying. And Anthony was in my mother's room on top of my sister, holding her down, both hands behind her head with one hand up under her shirt and trying to kiss her and she was — Q. When you say Anthony, who are you talking about? A. Anthony Whigham. ..... Q. And exactly where, and I want you to be precise, where was Anthony's hand? A. Up under her shirt, with one of them, the other hand was holding both her hands above her head on the bed. Q. When you say up under her shirt, where exactly was his hand? A. On her breast — ..... Q. In particular and precisely, where was Anthony's hand, on what particular part of the body on [Norma] was Anthony's hand. A. On her breast. Q. What was [Norma] doing? A. She was crying. Q. You saw this yourself? A. Yes, I did. On cross-examination he testified as follows: Q. Well, let me ask you this, you, of course have explained it to the prosecution about telling the truth and you know what perjury is and that sort of thing, whether there is any sort of an affair going on between this man here and your mother while your daddy was in jail? A. Yes, it was. Q. And as a result of that did your daddy make any statements to you with reference to what he was going to do to this fellow here? A. No, he didn't. Q. He did not? A. He did not. On direct examination [Norma] testified as follows: Q. Back in December of 1986, did anything occur in that apartment? A. Well, Anthony was holding me down on the bed and he had his hands in my shirt, kissing me and everything. Q. Now when you say Anthony, who are talking about? A. (Witness points). ..... Q. What particular part of your body was he touching? A. Here. Q. Now when you say here, what are you [talking about]? A. Breast. Q. Your breast? A. Uh huh. Q. And you said he was kissing on you? A. Yes, sir. Q. And you said he was holding your hands, how was he holding your hands? A. He had his hand behind my head and one hand in my shirt and he was laying on top of me. Q. Now, if you would, please described exactly how he had your hands. A. He had his hand behind my head like this. ..... Q. He was holding your right arm behind your head? A. Yes, sir. Q. What were you doing? A. Trying to get up but he wouldn't let me up. Q. Did anyone see Anthony on top of you? A. My brother. Q. What's your brother's name? A. [Stewart]. Q. [Stewart Pratt]? A. Yes, sir. On cross-examination she testified as follows: Q. Are you afraid of your father. A. No, sir. ..... A. Well, he asked me what all Anthony did and I told him and he asked me to come up here and tell the truth and that was it. Q. Did he ask you anything about whether or not this boy was having any sort of an affair with your mother? A. What? Q. Did he ask you whether or not this defendant here was having any sort of an affair with your mother? A. No, he didn't ask me. Q. Huh? A. No, he didn't ask me. Q. Was he? A. Yes. Q. He was? Do you know that for a fact? A. Yes. Q. And how, would you tell us how you know that for a fact? A. Cause he would hug on my mother and stuff like that. Q. Huh? A. He would hug on my mother and try to kiss her and stuff and I was there when it happened. Q. Did she hug and kiss him back? A. Well, he grabbed her and started hugging on her and stuff. ..... Q. Young lady, isn't it a fact that when your daddy came home from down there in that jail house that your mama and your daddy — he found out what was going on — A. Yes, he did. Q. And he told your mama and right to your face, he said, We want you to go up there and make charges on this man and we want to do it today, and you came on up there with them and you gave statements and so forth, and statements that they talked to you about making before you went up there, didn't you? A. Yea. On re-direct examination [Norma] testified: Q. I'll ask it again, [Norma], if your mother was having an affair with Anthony, does that give Anthony the right to put his hands on your breast? A. No, it doesn't. Q. Did you give him permission? A. No, I didn't. Q. Did you want him to put his hands on your breast? A. No, I didn't. Q. Your mother didn't tell you to let Anthony put his hands on your breast? A. No, she didn't. Q. Your answer is no. A. My answer is no. Q. He just did it, didn't he? A. Yes, he did. Q. And you didn't want him to, did you? A. No, I didn't. Q. And you were 13 years old, is that right? A. Yes, I was. The State rested, and the court then advised Whigham that he had a right to testify but could not be compelled to testify, it was a matter for him to decide. A brief recess was requested, following which defense counsel announced to the court that the defendant doesn't think he should testify. Wesley Whigham was the first defense witness. He testified that one day he was over at the Bounds house to see the kids, and while he was standing outside he looked in a window of a room where Anthony was sleeping. He saw Norma run through the door and jump on top of him. Then, he and Phyllis hollered at her to get out of there and leave him alone. Larry Bounds, Whigham's stepfather, testified that Anthony and Norma horsed and played around in the Bounds house. He said that she would jump on Anthony when was in bed trying to sleep. He took it that they were just horsing around, that Anthony had played with all the kids from the smallest one all the way up to [Stewart], they've always horsed around, you know. Phyllis was the final defense witness. She testified that Norma did not live at home while her father was in prison until about two weeks before he returned. She lived at the home of Sandora Thompson, an old man that they just know. The jury found Whigham guilty and he was sentenced to eight years imprisonment.",facts
+787,6350751,1,4,"Finding no merit to the error alleged by Gray, we affirm the judgment of the Court of Appeals. Affirmed. Freudenberg, J., not participating.",conclusion
+788,3188899,1,1,"In November 2001, George Poullos and Jody Poullos purchased a home and residential property on lot 368 in an Omaha, Nebraska, subdivision. When they purchased the home, it was fully completed; sod had been laid on the lot, an underground sprinkler system had been installed, and a sidewalk had been constructed. The Poulloses believed their property extended to the edge of the sod line—a line that was just outside the sprinkler system and perpendicular to the end of the sidewalk. From 2001 on, George continuously mowed, fertilized, and watered the sod. He also maintained the sprinkler system. In the winter, George cleared the sidewalk of snow. At the time the Poulloses purchased and moved into their home, the property directly adjacent to the north, lot 367, was vacant. The vacant lot was generally covered with dirt and weeds. A photograph taken in about November 2001 shows a demarcation between the sod line and the vacant lot. Global positioning system photographs and other evidence admitted at trial generally demonstrated that the sod line demarcation continued over the ensuing 10 to 12 years, but became less even over time as the sod spread. - 117 - Nebraska A dvance Sheets 293 Nebraska R eports POULLOS v. PINE CREST HOMES Cite as 293 Neb. 115 Lot 367 remained vacant until 2013, when Pine Crest Homes, LLC, began constructing a home. A survey revealed that a wedged-shaped section of land consisting of portions of the sod and sprinkler system maintained by the Poulloses was actually part of lot 367, not lot 368. The area in dispute is about 667 square feet of land. In April 2013, the Poulloses filed a complaint for injunctive relief and to quiet title. They attempted to stop the construction of the home on lot 367 and asked that title to the wedge-shaped section of land in dispute be quieted in them based on the theory of adverse possession. The district court denied injunctive relief but, after conducting a bench trial, found the Poulloses had established all of the elements of adverse possession and quieted title to the disputed land in their favor. Pine Crest Homes timely filed this appeal, and we moved the case to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.1 For the reasons discussed below, we reverse, and remand with directions to enter judgment for Pine Crest Homes. ASSIGNMENTS OF ERROR Pine Crest Homes assigns, restated, that (1) the district court erred in finding the Poulloses had established all the elements of adverse possession and (2) the legal description of the disputed property offered by the Poulloses was insufficient to support quieting title in their favor.",facts
+789,2219070,1,1,"In April, 1991, Rudy and Kathy Aman (Amans) filed a petition with the Edmunds Central School District (Edmunds) for a minor boundary change. They sought to transfer 1,560 acres from the Edmunds District to the Eureka School District (Eureka). The land sought to be transferred was co-terminus with the common boundary of the two school districts as required by SDCL 13-6-84.1. The petition was signed by a majority of the voters residing in the area proposed for transfer as required by statute. Amans did not know where on the property their residence would be located; therefore, Edmunds denied the petition in May, 1991, but left the petition on file until Amans finalized their place of residence. In August, 1991, Amans notified Edmunds of their purchase of the west one-half of section 15, township 125 north, range 72. Edmunds then reconsidered the petition and approved transfer of only the residence portion of the property, some 7.5 acres, to Eureka. Eureka had previously accepted the petition in its entirety, all 1,560 acres. Amans filed with the fifth circuit timely notice of appeal of both actions of the Edmunds School Board. The appeals were consolidated by agreement of counsel. The circuit court held a de novo trial and upheld Edmunds' partial acceptance of the petition. Amans appeal, raising four issues. We have consolidated two of the issues into one issue which is dispositive of this case. We will not address the other issues raised. DID THE CIRCUIT COURT ERR IN AFFIRMING THE EDMUNDS CENTRAL SCHOOL BOARD'S REDUCTION OF THE AMOUNT OF LAND INCLUDED IN THE PETITION.",facts
+790,1298321,1,1,"Defendant, Oreste C. Fulminante, appeals a verdict and judgment of guilt for the crime of first degree murder (A.R.S. § 13-1105(A)(1)) and a sentence of death (A.R.S. § 13-703). We have jurisdiction pursuant to Ariz. Const. Art. 6 § 5(3) and A.R.S. §§ 13-4031, 4033, and 4035.",jurisdiction
+791,2100146,1,4,"In an appellate court's review of a ruling on a demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. Kubik v. Kubik, ante p. 337, 683 N.W.2d 330 (2004); Rodehorst v. Gartner, 266 Neb. 842, 669 N.W.2d 679 (2003). In determining whether a cause of action has been stated, a petition is to be construed liberally; if, as so construed, the petition states a cause of action, the demurrer is to be overruled. Id. Whether a petition states a cause of action is a question of law, regarding which an appellate court has an obligation to reach a conclusion independent of that of the trial court. Id.",standard of review
+792,2449956,1,5,"Hall challenges the sufficiency of the evidence of his first-degree murder conviction, arguing the State failed to prove premeditation beyond a reasonable doubt. Hall reasons the State failed to prove he formed the design or intent to kill before the shooting occurred because he did not know the victim, made no prior threats against her, and the shooting occurred very quickly after he exited the vehicle. When sufficiency of evidence is challenged in a criminal case, our standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Prine, 287 Kan. 713, 738, 200 P.3d 1 (2009) (citing Vasquez, 287 Kan. at 59, 194 P.3d 563; State v. Morton, 283 Kan. 464, 474, 153 P.3d 532 [2007] [ Morton II ]). In reviewing the sufficiency of the evidence, we do not reweigh the evidence or evaluate the credibility of witnesses. Rather, we leave that function to the jury. State v. Doyle, 272 Kan. 1157, 1162-63, 38 P.3d 650 (2002). We have noted that direct evidence of premeditation is rare. Rather, the element of premeditation generally must be proven with circumstantial evidence. Such evidence, however, is sufficient to establish even the gravest offenses, as in this case. Doyle, 272 Kan. at 1162, 38 P.3d 650; see Cravatt, 267 Kan. at 328, 979 P.2d 679. In Cravatt, the defendant shot the victim point blank between the eyes, killing him instantly. The court noted: Other than the defendant's alcohol consumption and statements made by him during the evening that persons, including the victim, were giving him a hard time at the party, there was little evidence of a motive for the killing. 267 Kan. at 316, 979 P.2d 679. Nevertheless, the court rejected the defendant's challenge to the sufficiency of the evidence of premeditation, noting the jury could infer premeditation from the established circumstances of the case provided the inference was a reasonable one. 267 Kan. at 329, 979 P.2d 679. Further, the court identified various circumstances from which a jury can infer premeditation: While premeditation to commit murder may not be inferred from the use of a deadly weapon alone, it may be inferred where other circumstances also exist. Circumstances which may give rise to the inference of premeditation include: (1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. Cravatt, 267 Kan. 314, Syl. ¶ 4, 979 P.2d 679. Thus, while evidence of a motive is lacking in this case, the jury nevertheless could infer premeditation based upon the presence of several of the circumstances enumerated in Cravatt. Specifically, Hall utilized a .22 caliber handgun, and there was no provocation or altercation between Hall and the victim. In fact, Hall did not even know the victim. Further, the defendant's conduct just prior to the killing, while not extensive, adds to the inference of premeditation. Specifically, the victim and her friends were visible from Pahmahmie's car where Hall waited for several minutes while Rowe was inside. Just before getting out of the car, Hall indicated he was ready to go or ready to go do something. After getting out of the car, he paused for a moment, pulled up the hood of his sweatshirt, and walked down the corridor where the victim was sitting with her friends. He then shot the victim four times in the back, quickly returned to the car with the gun in his possession, and ordered Pahmahmie to just fucking go. Considering the Cravatt factors and viewing all the evidence in the light most favorable to the State, we find the evidence more than sufficient to support an inference of premeditation and consequently to support Hall's conviction for first-degree murder.",sufficiency of the evidence
+793,2509046,1,3,"ś 80 The instant case is publici juris in nature, as it concerns the people or community at large and is imbued with the public interest. Further, there is a pressing need for this Court to decide the matter at the present time because District Court temporary restraining orders and/or temporary injunctions have, in effect, made it impossible for law enforcement officials in over twenty-five (25) counties to carry out their duties under the Act, even though no valid basis was or has been espoused or put forward by respondents to enjoin enforcement or prosecution under the Act. The case, therefore, presents one of those rare circumstances where the exercise of our discretion to assume original jurisdiction is called for to grant declaratory relief, notwithstanding that this Court and the District Courts have concurrent jurisdiction. We, therefore, assume original jurisdiction and rule on respondents' constitutional challenges to the Act. ś 81 A court's place, when called on to review constitutional challenges to legislation promulgated by the people through the initiative (as it is with statutory enactments passed by the Legislature), is not to second guess the law's wisdom, but to review the measure for constitutional conformity and to strike the enactment down only if found constitutionally infirm. In the instant case, the Act is a proper exercise of the police power, enacted by the electorate through the initiative process by virtue of its reserved legislative power. As a facial matter, the Act: does not constitute a taking or damaging of property for public use without just compensation; does not violate the Contract Clauses of either the United States or Oklahoma Constitutions as argued by respondents; is not impermissibly invasive of any right of respondents or others similarly situated found in OKLA.CONST. art. 2, § 2, as asserted; does not impermissibly or unconstitutionally infringe upon a fundamental right to travel as claimed by respondents; was not promulgated in violation of OKLA.CONST. art. 5, § 57 as posited by respondents; and, finally, is not unconstitutionally vague or overbroad as claimed, so as to deprive respondents of liberty or property without due process of law, or so as to be violative of rights to free speech, assembly or association, as respondents assert. ś 82 Consistent with the views expressed in this opinion, ORIGINAL JURISDICTION IS ASSUMED AND DECLARATORY RELIEF IS GRANTED. ś 83 WATT, C.J., HODGES, LAVENDER, HARGRAVE, KAUGER, BOUDREAU and WINCHESTER, JJ., concur. ś 84 OPALA, V.C.J. and EDMONDSON, J., disqualified.",conclusion
+794,4544174,1,1,"This certiorari proceeding arises out of Lisa E. Alkire’s (“Alkire”) conviction for the offense of operating a vehicle under the influence of an intoxicant (“OVUII”) in violation of  FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER  Hawaiʻi Revised Statutes (“HRS”) § 291E-61(a)(1) (Supp. 2014) on Likelike Highway in the early morning hours of October 15, 2016. Alkire raises four questions in her application for writ of certiorari, which challenges the Intermediate Court of Appeals’ (“ICA”) January 24, 2019 summary disposition order (“SDO”). The ICA’s SDO affirmed the District Court of the First Circuit’s (“district court”) August 30, 2017 judgment.1 The four questions raised on certiorari are: I. As a matter of first impression, did the ICA gravely err in finding that the Tachibana admonishment was sufficient where Petitioner was not informed of her right to testify in her consolidated suppression hearing without that testimony being used to determine guilt or innocence and/or where the court specifically declined to inform Petitioner of her right to remain silent? II. As a matter of first impression, did the ICA gravely err in rejecting Petitioner’s HRPP, Rule 48 and/or constitutional speedy trial challenges, where the trial “commenced” with one state witness but was subsequently continued for eight months at no fault of Petitioner? III. Did the ICA gravely err in holding that HRPP Rule 16 usurps United States Supreme Court precedent that requires individual prosecutors to obtain and disclose impeachment materials rather than merely relying on representations of the police to determine whether and what materials should be disclosed to Defendants? IV. Did the ICA gravely err in finding that discovery, requested for its potential exculpatory value, was not material because the evidence of guilt was “overwhelming” and/or in affirming the conviction where Ms. Alkire was deprived of an opportunity to establish an appropriate record as to the existence of the video? 1 The Honorable James H. Ashford presided. 2  FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER  The first question on certiorari was resolved through our opinion in State v. Chang, 144 Hawaiʻi 535, 445 P.3d 116 (2019).2 With respect to the second question on certiorari, we adopt the California Supreme Court’s reasoning in Rhinehart v. Municipal Court, 677 P.2d 1206, 1211-12 (Cal. 1984), and hold that, in order to effectuate its intent, Hawaiʻi Rules of Penal Procedure (“HRPP”) Rule 48 (2000) requires a “meaningful” commencement of trial. A trial is “meaningfully” commenced when a trial court reasonably commits its resources to the trial. As this is a “new rule,” it will only apply prospectively to events occurring after publication of this decision, i.e., to trials that commence after the date of this opinion.3 With respect to the third question on certiorari, we hold that, under the circumstances of this case, the prosecutor was not required to personally review files of the testifying police officers. As to the fourth question on certiorari, we hold that because the video recording showing Alkire at the police station 2 In Chang, we noted that because the defendant had the right to testify for the purpose of his motion to suppress without having that testimony used against him at trial, it was essential that the defendant be informed of those rights in order to ensure that his decision on whether to testify at the suppression hearing was knowingly and intelligently made. 144 Hawaiʻi at 545, 445 P.3d at 126. Overruling State v. Texeira, 62 Haw. 44, 609 P.2d 131 (1980), we also prospectively held that trial courts could no longer consolidate a motion to suppress hearing with a trial. 144 Hawaiʻi at 546, 445 P.3d at 127. We therefore need not further address this issue. 3 See also infra note 8. 3  FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER  after her arrest was material to Alkire’s defense and her request was reasonable, the district court abused its discretion in denying her motion to compel. We set out additional parameters the district court must consider. Although the district court may not reach this issue, we also hold that the permissive adverse inference rule, which allows a trier of fact to draw an adverse inference that lost or destroyed evidence was unfavorable to the spoliator, also applies in criminal cases. Accordingly, we vacate the ICA’s February 25, 2019 judgment on appeal, which affirmed the district court’s August 30, 2017 judgment, and we remand the case to the district court for further proceedings consistent with this opinion.",introduction
+795,885593,1,5,"¶ 19 Did the District Court err when it concluded the contract remedy provision was an unenforceable liquidated damages provision? ¶ 20 The District Court first concluded that the twenty-acre parcel was not transferable because of the Montana Subdivision and Platting Act. Given that conclusion, the District Court then reexamined the contract for another possible method to determine the appropriate amount of damages. Upon that examination, the Court noted the following language in Paragraph 6: The parties hereto agree that Seller's [Canton's] completion of said state and county requirements and the requirements contained in this agreement shall be valued at Two Hundred Thousand Dollars ($200,000.00). It then concluded: This would appear to constitute a contractual provision by which the amount of damage to be paid for breach of Canton's obligations was determined in anticipation of his possible breach, i.e., a liquidated damages provision. Given that determination, the District Court analyzed the provision as a liquidated damages provision in light of § 28-2-721, MCA. Section 28-2-721, MCA, provides: When provision fixing liquidated damages valid. (1) Every contract by which the amount of damage to be paid or other compensation to be made for a breach of an obligation is determined in anticipation thereof is to that extent void, except as expressly provided in subsection (2). (2) The parties to a contract may agree therein upon an amount which shall be presumed to be an amount of damage sustained by a breach thereof when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage. [Emphasis added.] ¶ 21 Riverview contends that the provision in Paragraph 6 is not a liquidated damages provision, because the parties did not agree on the amount of compensation or damages to be paid by Canton to Riverview. Therefore, § 28-2-721(1), MCA, does not apply. We agree. The provision sets forth a value for Canton's completion of certain tasks, it does not give Riverview the right to collect $200,000 from Canton. However, neither did Riverview contend that it should be awarded the $200,000 amount set forth in Paragraph 6. Therefore, the District Court's discussion regarding liquidated damages was not essential to the resolution of the parties' claims and we move on to its actual award of damages.",issues
+796,2406015,1,3,"
+The McCrorys contend that the trial court erred in dismissing the claim against circuit court clerk Jacquetta Alexander in that it stated a cause of action under 42 U.S.C. § 1983 (1982). We hold otherwise. A county court clerk can be sued for damages in a § 1983 suit. See Scott v. Dixon, 720 F.2d 1542 (11th Cir.1983), cert. denied, 469 U.S. 832, 105 S.Ct. 122, 83 L.Ed.2d 64 (1984). However, a clerk may have either absolute or qualified immunity for acts done in his or her official capacity. Absolute immunity bars a suit at the outset and frees the defendant official of any obligation to justify his actions, while qualified immunity is in the nature of an affirmative defense and protects an official from liability only if he can show that his actions did not contravene clearly established statutory or constitutional rights of which a reasonable person in his position should have known. Gray v. Bell, 712 F.2d 490 (D.C.Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984). See also Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Clerks who perform ministerial functions, such as filing orders and notifying parties, are entitled only to qualified good faith immunity. Henriksen v. Bentley, 644 F.2d 852 (10th Cir.1981). A court clerk who performs a judicial function, such as issuing warrants, enjoys absolute immunity in a § 1983 suit. Scott, supra . See also Sharma v. Stevas, 790 F.2d 1486 (9th Cir.1986). Having determined above that a judge, not a clerk, should issue writs of attachments, it follows that the act of issuing such writs is a judicial function. See Scott, supra . Thus, Jacquetta Alexander was entitled to absolute judicial immunity. The trial court properly dismissed the claim against her.
+The McCrorys contend that the trial court erred when it refused to instruct the jury that to the extent section 19 of the lease might be construed to authorize the landlord to reenter the premises upon a default by the tenant and remove the tenant's possessions, such section of the lease was invalid, illegal, and not to be enforced against the tenant. We agree. Section 19 of the lease provided in part that upon default by the tenant, the lessor may re-enter the premises remove all persons therefrom and also that the [l]essor shall have a lien on all buildings and moveable property on the premises belonging to the lessee while rent is in arrears.... In Gorman v. Ratliff, 289 Ark. 332, 712 S.W. 2d 888 (1986), we held that lease provisions authorizing self-help by a landlord are illegal and invalid. Therefore, section 19 of the lease, to the extent it allowed self-help by Johnson as landlord, was also illegal and invalid. The McCrorys proffered the following instruction: You are instructed to the extent that section 19 of the lease signed by Barbara McCrory and Brad Houston might authorize Mr. Houston to reenter the premises upon a default by Barbara McCrory and eject Barbara McCrory or Thomas McCrory from the premises or remove the possessions of Barbara or Thomas McCrory from the premises, then such section of the lease is invalid, illegal, and shall not be enforced against Barbara McCrory or Thomas McCrory. The trial court instead gave the following instruction: Ms. McCrory has asserted that Thomas J. Johnson and Brad W. Houston have violated Ark.Stat.Ann. 34-1501 which is called the Forcible Entry and Detainer Statute. This statute is concerned with certain obligations and rights of both landlords and tenants. In order to prove this claim, Ms. McCrory has the burden of proving the following elements: First, that at the time she was a tenant at 23 Lucy Lane, Brad W. Houston carried away or caused to be carried away property belonging to Ms. McCrory without her permission. Secondly, that such intentional conduct was a proximate cause of any damages suffered by Ms. McCrory. It is the obligation of a trial judge to instruct the jury upon the law of the case with clarity and in such a manner as to leave no basis for misrepresentation or mistake. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). As we stated in Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982), quoting Beevers, Adm'x v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967): Even if the court's general instructions could be said technically to have covered the matter in a general way, it is error to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, even though the law in a general way is covered by the charge given unless it appears that prejudice has not resulted. The instruction given to the jury covered the law of the case in a very general and incomplete manner. The jury very well may have been misled or confused by this instruction. The McCrorys' proffered instruction correctly and clearly applied the law to the facts of the case. Therefore, the trial judge erred by not giving this instruction. The appellees argue that section 19 of the lease was not relevant to the issues in the case. This argument is meritless. The illegality of this section was relevant to the issue of whether the appellees' actions in removing the property were contrary to law—which is what the McCrorys' counterclaim, in part, was based upon. Furthermore, not only was the entire lease admitted as an exhibit, but also the validity of this section was contested from the beginning of the case. Additionally, the appellees argue that the proffered instruction was not a correct instruction in that it was not simple, brief, impartial, and free from argument. See Paul v. Safley Const. Co., 287 Ark. 412, 700 S.W.2d 55 (1985). This contention is also without merit.
+The McCrorys assert that the trial court erred when it informed the jury that the writ of attachment was legal. We agree. The following dialogue occurred at trial between Barbara McCrory, Mr. DePriest (her lawyer), and the trial judge. Q. DePriest: Did you ever get access to your property? A. McCrory: Quite awhile later the Court dissolved the Writ of Attachment and determined it wasn't legal and let me have it. The Court: No, you ladies and gentlemen, disregard that. The Court didn't say the Writ of Attachment wasn't legal. To the contrary, the Writ of Attachment, of course, was legal. As previously noted, the trial court discharged the writ of attachment (which had been issued by the circuit clerk) because Thomas Johnson had not met his burden of showing, pursuant to Ark.Code Ann. § 16-110-101 (1987) that Barbara McCrory was about to remove or had removed her property, or a material part thereof, from the state. The trial court, in effect, found that under the circumstances the issuance of the writ was not authorized or permitted by our code provisions. Black's Law Dictionary 673, 803 (5th ed. 1979) defines illegal as against or not authorized by law, and legal, in part, as permitted by law. By incorrectly stating at trial that the Writ of Attachment, of course, was legal, the court may have led the jury to mistakenly believe that the writ was permitted or authorized by law (legal) and erroneously conclude that the McCrorys did not have a cause of action based upon the wrongful issuance of the writ. It is reversible error for a trial court to make an incorrect statement or conclusion of law which tends to mislead the jury in arriving at its verdict. Kidd v. Gardner Associated, Inc., 92 Idaho 548, 447 P.2d 414 (1968); Gaito v. City of Pittsburgh, 390 Pa. 409, 135 A.2d 746 (1957). See also Haseman v. Union Bank of Mena & Haseman, 262 Ark. 803, 562 S.W.2d 45 (1978). The trial court's comment was improper and should not have been made.
+The McCrorys argue that the trial court erred in excluding the testimony of Elizabeth Baxley because her testimony was both relevant and admissible, and its exclusion was prejudicial to the McCrorys. We hold otherwise. On March 30, 1987, Barbara McCrory submitted a complaint to the Prosecuting Attorney's Office concerning the removal of her property from the house that she had leased from Johnson through his agent, Houston. Elizabeth Baxley, a paralegal in the Prosecuting Attorney's Office, contacted Keith Vaughn, appellee Houston's attorney, concerning the property. During trial, the court informed the McCrorys that Baxley's testimony would not be admissible but that it would allow McCrory to proffer this testimony. Baxley testified in chambers that Vaughn told her that he had advised Houston not to take the property. Vaughn's advice to Houston to not take the property was protected under the attorney-client privilege since it was made for the purpose of facilitating the rendition of legal services between a lawyer and client. Ark.R.Evid. 502(b)(1). Under Rule 502, Houston had the privilege to prevent Elizabeth Baxley from disclosing this confidential communication. Therefore, the trial court acted properly in excluding her testimony. Reversed and remanded. PURTLE and NEWBERN, JJ., not participating.",issues
+797,1859512,1,1,"For his first point for reversal, Mr. Harmon argues that there was insufficient evidence to support a conviction of battery in the first degree. Particularly, he asserts that the evidence was insufficient to demonstrate (1) that he had any involvement in the crime; (2) that he caused a serious physical injury; or (3) that he acted with the requisite mental state. Mr. Harmon was charged with violating Ark.Code Ann. § 5-13-201(3)(Repl.1997), which provides that a person commits battery in the first degree if: He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life[.] The test for determining sufficient proof is whether there is substantial evidence, direct or circumstantial, to support the verdict. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). On appeal, we review the evidence in the light most favorable to the State and sustain the conviction if there is any substantial evidence to support it. Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994). Evidence is substantial if it is forceful enough to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. In determining whether there is substantial evidence, we consider only that evidence tending to support the verdict. Johnson, supra . We do not weigh the evidence presented at trial, as that is a matter for the factfinder. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998); Dabney v. State, 326 Ark. 382, 930 S.W.2d 360 (1996). Where, as here, the trial is before the bench, the trial judge sits as factfinder. See Gray v. State, 311 Ark. 209, 843 S.W.2d 315 (1992); State v. Watson, 307 Ark. 333, 820 S.W.2d 59 (1991). The evidence showed that on October 27, 1996, Kevin Anglin was beaten by several individuals in the parking lot of the Discovery Club in Little Rock. Mr. Anglin testified that he had no actual memory of the beating, but that the last thing he remembered seeing were the faces of Mr. Harmon and Mr. Benjamin Brown. At trial, Mr. Anglin identified Mr. Harmon for the record. Mr. Anglin testified that as a result of the beating he suffered very, very acute injuries and was placed in the intensive care unit for three days. Mr. Anglin testified that he suffered injuries to the left side of his face, for which he underwent plastic surgery to repair. Mr. Anglin stated further that since the beating, he suffered a loss of his senses of taste and smell and a loss of memory. Finally, Mr. Anglin indicated that as of the time of trial some sixteen months after the incident, he had no sense of taste or smell and that he continued to suffer a loss of memory. Mr. Ali Kaan Aydulun testified that he witnessed Mr. Anglin being beaten that night at the Discovery Club. He stated that he and his friend were walking in the parking lot when they encountered Mr. Brown, standing in the lot cussing. Mr. Aydulun and his friend were about to say something to Mr. Brown, when Mr. Anglin advised them to leave Mr. Brown alone because he was drunk. Mr. Aydulun stated that he and his friend began to walk away, and that when he turned around, he saw Mr. Brown and several other persons attack Mr. Anglin. Mr. Aydulun stated that Mr. Anglin had done nothing to provoke the fight. According to Mr. Aydulun, six or seven assailants punched and pushed on Mr. Anglin and eventually pulled him to the ground and started kicking him in the ribs, legs, face and the back of the head. Mr. Aydulun made an in-court identification of Mr. Harmon as one of the assailants. He had previously identified Mr. Harmon in a photo-lineup. Mr. Aydulun testified that Mr. Harmon kicked Mr. Anglin in the face. He explained that Mr. Harmon's foot missed Mr. Anglin the first time, but that on the second attempt Mr. Harmon backed up one step and ran at Mr. Anglin's head like a field-goal kicker runs toward a football. Mr. James Patrick Cady also witnessed the attack. He testified that five or six people began hitting and kicking Mr. Anglin and then stomping on his head as he lay on the ground. Mr. Cady selected Mr. Harmon's photograph out of a photo-lineup as looking like one of the assailants. He stated that when the fight ended and the assailants dispersed, one assailant gave several last kicks to the victim's head before getting into a car and leaving. He identified Mr. Harmon as looking like the person who inflicted those last blows to the victim's head. Mr. Cady told police that the assailant had driven away in a white Honda, license plate number YTS 020. Within approximately fifteen minutes of the incident being reported to the police, a Little Rock police officer stopped a white Honda, license plate number YGS 020, on Cantrell Road, not far from the Discovery Club. Mr. Harmon was driving the car, and Mr. Brown was the only passenger. The State also offered the testimony of Dr. Ali Krisht, which was taken during the previous trial against Mr. Brown. Dr. Krisht, an expert in neurosurgery, testified that he treated Mr. Anglin in the hospital in October 1996. He stated that a CAT scan of Mr. Anglin's head revealed contusions on the brain surface in more than one area, mostly on the left side. He explained that contusions are small hemorrhages that are usually caused by trauma. He stated that Mr. Anglin was diagnosed with traumatic brain injury. Dr. Krisht also stated that a loss of short-term memory, taste and smell can be associated with such an injury, and that those losses can be permanent. Dr. Krisht further noted that during a subsequent visit to the clinic, Mr. Anglin complained that he was having problems with short-term memory and his sense of smell. Viewing this evidence in the light most favorable to the State, we find substantial evidence to support Mr. Harmon's conviction of battery in the first degree. Mr. Harmon's first argument in opposition to this conclusion is an attack on the credibility of two of the State's witnesses: Mr. Aydulun, who identified Mr. Harmon as one of the assailants who kicked the victim in the head; and Mr. Cady, who reported that a person who looked like Mr. Harmon inflicted the last blows to the victim's head and drove away in a car that was eventually stopped by the police. The attack on the credibility of these witnesses is premised on certain inconsistencies in their testimony. The defense specifically points out that Mr. Aydulun indicated that some of the assailants, including Mr. Harmon, were wearing baseball caps and cowboy boots, and that a group of them left the scene in a blue Mazda. Whereas, Mr. Cady indicated that Mr. Harmon left the scene in a white Honda and the police officer testified that when he stopped the white Honda, he did not notice Mr. Harmon wearing a baseball cap or cowboy boots and he did not notice any blood on him. Finally, the defense also challenges the credibility of the witnesses by noting that some of the people identified during the investigation as possible look-alikes were merely fillers in the photo-lineup and were not actually involved in the assault. The matters emphasized by Mr. Harmon bear exclusively upon the credibility of the State's witnesses. This court, however, does not attempt to weigh the evidence or assess the credibility of witnesses. That lies within the province of the trier of fact. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). We are bound by the factfinder's determination on the credibility of witnesses. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980); Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). Likewise, we have long held that the trier of fact is free to believe all or part of a witness's testimony. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998); Patterson v. State, 326 Ark. 1004, 935 S.W.2d 266 (1996). Moreover, inconsistent testimony does not render proof insufficient as a matter of law, and one eyewitness's testimony is sufficient to sustain a conviction. See Williams v. State, supra ; Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997). Mr. Harmon contends that the purported inconsistencies in the testimony of the State's witnesses make their identification of him as the perpetrator of the crime inherently improbable, physically impossible, and so clearly unbelievable that reasonable minds could not differ thereon. Kitchen v. State, supra . We disagree. We cannot say with assurance that it would have been physically impossible for Mr. Harmon to discard incriminating evidence, such as clothing, between the time he fled the scene and the time the officer stopped the vehicle he was driving. Furthermore, the officer admitted that he was not specifically looking for blood, cowboy boots, or baseball caps when he made the DWI arrest. The defense fully explored all inconsistencies and weaknesses in its cross-examination of the State's witnesses. Nevertheless, the trial judge found their identification credible. The accuracy of the eyewitness identifications and any alleged weaknesses were matters of credibility for the trial court to resolve. Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985). Mr. Harmon has presented us with no valid reason to disregard the trial judge's assessment of the witnesses's credibility. We therefore hold that substantial evidence linking Mr. Harmon to the crime does exist. Mr. Harmon next asserts that the State's evidence was insufficient to establish that he caused a serious physical injury. Ark.Code Ann. § 5-1-102(19) (Repl. 1997) defines serious physical injury as: Physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Mr. Anglin testified that as a result of the injuries sustained in the fight, he spent three days in the hospital's intensive care unit. He also stated that he suffered a loss of his senses of taste and smell, and a loss of memory as a result of the beating. At trial, some sixteen months after the incident, Mr. Anglin indicated that these symptoms continued to persist. During Mr. Anglin's hospitalization in October 1996, Dr. Krisht diagnosed Mr. Anglin with traumatic brain injury. Dr. Krisht also confirmed that the protracted loss of memory, taste, and smell experienced by Mr. Anglin can be associated with the type of injury he sustained. A photograph showing the severity of the injuries to the left side of Mr. Anglin's face was also introduced into evidence, and Mr. Anglin testified that he underwent plastic surgery to repair those injuries. Whether a victim has sustained a serious physical injury is an issue for the jury, or, as in this case, the trial judge sitting as factfinder. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). Likewise, the question whether injuries constitute a temporary or protracted impairment of a function of a bodily member or organ is for the factfinder to decide. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). In this case, the victim's testimony about the injuries he sustained on October 27, 1996, was corroborated by his doctor's testimony as well as a photograph of his face after the beating. We cannot say that the factfinder could not reasonably infer from this evidence that Mr. Anglin sustained a serious physical injury as a result of the beating, and particularly that he suffered a protracted impairment of the function of bodily organs or members. We therefore conclude that substantial evidence to support the finding of serious physical injury does exist. This conclusion is consistent with our holding in Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984), where we held that three blows to the head with a fist resulting in fractures to the face and the victim's hospitalization for five days was sufficient to support a finding of serious physical injury. Mr. Harmon finally asserts that the evidence was insufficient to establish that he acted with the requisite mental state for battery in the first degree. A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or cause such a result. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990) (citing Ark.Code Ann. § 5-2-202(1) (1987)). Because of the obvious difficulty in ascertaining the actor's intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his acts. Id. The factfinder may draw upon common knowledge and experience to infer the defendant's intent from the circumstances. Id. The trial court's conclusion in this case that Mr. Harmon acted with the purpose of causing serious physical injury is supported by Mr. Aydulun's testimony that Mr. Harmon came at Mr. Anglin's head like a field-goal kicker approaches a football, and by Mr. Cady's testimony that Mr. Harmon was the last one to leave the scene, and did so only after delivering several more kicks at Mr. Anglin's head. This conclusion is consistent with our holding in Anderson v. State, 312 Ark. 606, 852 S.W.2d 309 (1993): Repeated blows to the head by kicking or `stomping' when [a] man [is] down [exhibit] purposeful action to inflict serious physical injury whether it be risk of death or protracted disfigurement or impairment. Id.; see also Lum v. State, supra ; Bangs v. State, supra ; Tarentino v. State, supra ; Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). Furthermore, there is substantial evidence to support a finding that Mr. Harmon acted under circumstances manifesting extreme indifference to the value of human life, pursuant to section 5-13-201(3). The plain meaning of that phrase demonstrates that the circumstances must by necessity be dire and formidable in terms of affecting human life. Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994). In short, first-degree battery involves actions which create at least some risk of death which, therefore, evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim. Id. (citing Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984)). The foregoing evidence demonstrates that Mr. Harmon, along with five or six other assailants, kicked Mr. Anglin in the face and head multiple times while Mr. Anglin was on the ground. This evidence certainly supports the conclusion that Mr. Harmon engaged in life-threatening conduct against the victim. Moreover, the evidence of life-threatening conduct in this case is distinguishable from the circumstances addressed in Tigue v. State, supra , where we held that immersion of the victim's hands in hot water causing third-degree burns was not life-threatening conduct. Likewise, Bolden v. State, 267 Ark. 504, 593 S.W.2d 156 (1980), is inapposite because the police officer in that case did not know what caused his injury (a broken jaw and ribs) and [t]he physician who examined the officer shortly after the incident testified that he had not observed any contusion on the officer's head, and there was no physical evidence of a severe blow to the back of the head. Id. We therefore conclude that there is substantial evidence from which the trial judge, sitting as factfinder, could have reasonably determined that Mr. Harmon acted with the purpose to cause serious physical injury to Mr. Anglin under circumstances manifesting extreme indifference to the value of human life.",sufficiency of the evidence
+798,2334708,1,1,"This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). When reviewing the sufficiency of the evidence, we determine whether there is substantial evidence to support the verdict, viewing the evidence in a light most favorable to the State. Id. The evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). It must force the mind to go beyond speculation or conjecture and is not satisfied by evidence which gives equal support to inconsistent inferences. Id. We look only to the evidence which supports the verdict. Id. It is for the jury to resolve inconsistencies in testimony, and we will not disturb their credibility assessment. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983). Mr. Jenkins moved for a directed verdict at the close of the State's case. He presented no evidence and rested immediately after the State. On appeal, he contends that the State did not exclude every other reasonable hypothesis except for his guilt, claiming that the State provided no proof that he acted with premeditation and deliberation as well as insufficient evidence that he murdered Brian Young. First, Mr. Jenkins contends that the testimony of Tanisha Franklin should have been corroborated. He focuses on the fact that Ms. Franklin did not tell police about overhearing him admit to Mr. Young's murder until December 26 when she was arrested with Mr. Jenkins on charges of aggravated robbery. The charges against her were eventually dropped. Mr. Jenkins asserts that this likened Ms. Franklin to an accomplice whose testimony should have been corroborated. However, the appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110. A defendant must either have a trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Id. Here, there was no request by Mr. Jenkins that the trial court declare Ms. Franklin to be an accomplice; nor did he seek to have the issue submitted to the jury. Thus, this challenge to her testimony is not preserved for our review. Mr. Jenkins also asserts that his taped confession statement is not reliable. A confession made by a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed. Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999). See Ark.Code Ann. § 16-89-111(d) (Supp.2001). This requirement for other proof, sometimes referred to as the corpus delicti rule, mandates only proof that the offense occurred and nothing more. Id. Under the corpus delicti rule, the State must prove the existence of an injury or harm constituting a crime and that the injury or harm was caused by someone's criminal activity. Id. Here, the victim's body and the physical evidence found at the scene establish the crime of murder. The victim sustained seven gunshot wounds from the back to the front. As a part of his sufficiency challenge, Mr. Jenkins denies that his statement amounted to a confession. He claims that, during police questioning, the premise was usually contained in the detective's questions rather than in his answers. He also asserts that, though he admitted to shooting at Mr. Young in response to perceived acts of aggression, he did not admit to killing him. In addition, Mr. Jenkins points out that Lisa Bowman stated Mr. Jenkins was at her home on the night of the murder, whereas he told police that he did not go to Ms. Bowman's home after the shooting. We do not consider these arguments as we need only consider the evidence that supports the guilty verdict. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). The evidence supporting the verdict revealed (1) that Mr. Jenkins admitted firing three to four shots at Mr. Young while the victim was outside a Delta convenience store on Asher Avenue, and (2) that Mr. Young died at that location as a result of multiple gunshot wounds. Next, Mr. Jenkins asserts that the State did not produce a murder weapon. Mr. Jenkins admitted shooting at Mr. Young with a .38 caliber revolver, and now contends such a revolver only contains six shots. He alleges that Brian Young was shot seven times with a 9mm semi-automatic handgun. In addition, he contests the identity of the assailant who committed the murder. He points out Iris Northrop's testimony that Mr. Young's last words to her were: [t]hat looks like the guys that tried to jump on me earlier, focusing on the reference to multiple assailants and the lack of reference to Mr. Jenkins himself. Mr. Jenkins suggests that Mr. Young knew who he was and, yet, did not identify him to Iris Northrop as the assailant. Mr. Jenkins also refers the court to his statement indicating that he committed the shooting while alone and riding a bike. He then contends it is unlikely that he could have hit the victim seven times while riding a bicycle. Again, we do not consider these arguments as we need only consider the evidence that supports the guilty verdict. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363. As for proof of the premeditated and deliberate intent necessary for capital murder, the State points out that a criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363. Intent may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Id. In this case, the evidence revealed that Mr. Young died while standing at a payphone near a convenience store and talking to his girlfriend. His death was the result of seven gunshot wounds to the back made with the equivalent of .38 caliber caliber-class bullets. The crime scene was littered with 9mm shell casings. In this case, the jury could have used those circumstances to infer that Mr. Jenkins acted with premeditated and deliberate intent. Finally, Mr. Jenkins argues that information in the police file provides him an alibi and a strong suspect other than himself. These allegations were not before the court during the trial of this matter. The failure to challenge the sufficiency of certain evidence in a directed-verdict motion at trial precludes appellate review. See Hutts v. State, 342 Ark. 278, 28 S.W.3d 265 (2000). As the evidence in question was not raised at trial, it cannot now be considered in relation to the sufficiency of the evidence on appeal. Overall, the evidence shows that Mr. Jenkins admitted to firing shots at the victim near the location where the victim's death occurred. In addition, testimony from Tanisha Franklin indicated that she heard Mr. Jenkins confess to murdering Mr. Young at the Delta store on the night of the crime. The jury alone determines what weight to give the evidence, and may reject it or accept all or any part of it they believe to be true. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). Viewing the evidence in a light most favorable to the State, we hold that the evidence presented at trial was sufficient to sustain Mr. Jenkins's capital-murder conviction.",sufficiency of the evidence
+799,1940131,1,4,"When a party moves to pass the case, the trial justice must assess the prejudicial impact of the statements. State v. Toole, 640 A.2d 965, 974 (R.I.1994). When he decides whether or not to declare a mistrial, the trial justice should consider if the evidence was of such a nature as to cause the jurors to become so inflamed that their attention was distracted from the issues submitted to them. State v. Pacheco, 763 A.2d 971, 979 (R.I.2001) (quoting State v. Brown, 619 A.2d 828, 831 (R.I.1993)). However, there is no fixed formula for determining prejudice. See State v. Hoyle, 122 R.I. 45, 48, 404 A.2d 69, 70 (1979). It is viewed in the context in which it appeared and in light of the attendant circumstances. Id. at 48, 404 A.2d at 71 (quoting State v. Marrapese, 116 R.I. 1, 7, 351 A.2d 95, 98 (1976)). Nevertheless, even if the trial justice determines that the remark was prejudicial, he is not required to pass the case. Toole, 640 A.2d at 974. If the trial justice determines that the prejudice is curable, he or she must issue a timely and effective instruction. Id. Applying these principles to the present case, we do not believe that the trial justice abused his discretion when he denied Susan's motion for a mistrial. In our opinion, the witness's comment was not of such an incendiary nature so as to cause the jurors to become inflamed or prevent their calm and dispassionate examination of the evidence. See State v. Parkhurst, 706 A.2d 412, 427 (R.I.1998). Furthermore, the trial justice's timely curative instructions, his thoughtful and measured subsequent efforts through voir dire to ensure that the jury would be able to comply with his admonition, and his instruction before the panel retired for deliberation more than sufficed to counteract whatever prejudice that had possibly arisen as a result of the witness's statement. See Mendoza, 889 A.2d at 159 (trial justice's admonition and subsequent efforts were sufficient to cure minimal prejudice). Susan, however, argues that the information about time-shares was inherently prejudicial to a defendant in a welfare fraud case because the jurors themselves are the victims as taxpayers, and any instructions, therefore, would be futile. We do not disagree that in a vacuum time-share ownership may be prejudicial in a case such as this; however, we determine the effect of a potentially prejudicial remark by examining it within its factual context. See Pugliese, 117 R.I. at 26, 362 A.2d at 126-27; see also State v. Anil, 417 A.2d 1367, 1373 (R.I.1980) (On review, we shall consider ad hoc the prejudicial effect of challenged remarks in light of the context in which they were uttered.). Our conclusions are further solidified by an examination of the entire record. Given the context in which the witness's comment was made, it was unclear whether the jurors even had heard the statement. Furthermore, the record reveals that the comment was both unelicited and fleeting, and the testimony was interrupted by several objections both before and after the words escaped the witness's mouth. The trial justice, therefore, had sufficient grounds to question whether the comment had any prejudicial effect. [7] See Toole, 640 A.2d at 974 (trial justice must assess if statement caused prejudice). To cure any prejudice, the trial justice also gave a curative instruction within minutes of the testimony. He instructed the jurors to disregard the comment, invoked his earlier instructions analogizing their task to un-ringing a bell, and reminded the jurors of their duty to disregard testimony when instructed to do so and to act in accordance with their oath as jurors. This Court assumes that a jury has followed a trial justice's instructions as they were given. State v. Young, 743 A.2d 1032, 1035 (R.I.2000). Furthermore, during the individual voir dire, all the jurors candidly affirmed that they would not be influenced by the comment and that that they would not consider the testimony. See id. at 1034-35 (affirming denial of motion for mistrial after jurors in individual voir dire stated they were not prejudiced by another juror's improper remark). Susan, however, challenges the effectiveness of the trial justice's instructions and voir dire, arguing that the voir dire merely served to exacerbate the prejudice and that it created a quandary for the jury: the trial justice asked them what testimony they heard last, yet they were simply told to disregard it. We see little merit in the contention that the voir dire was futile or counterproductive. During voir dire, the trial justice refrained from calling undue attention to the time-shares comment by asking the jurors only about the last testimony they heard. Furthermore, it is clear from the record that the trial justice was able to adequately probe the jury on the effect of the time-shares remark. Defense counsel and the prosecutor were allowed to pose their own questions to the jurors, and the trial justice, when necessary, asked follow-up questions to determine exactly what the jurors heard. By way of illustration, one juror initially responded that he did not hear the testimony because he was told to disregard it. Counsel, however, pressed him further, and he acknowledged hearing something about wages, although he had trouble hearing the testimony. Another juror commented that he remembered the testimony but was told to forget it, so he crossed off the testimony in his notes. The trial justice, however, inquired further, and the juror replied that the witness kept saying he didn't understand financially, how, you know, they could survive. She was working at CVS and the fact—that's about it. Counsel then asked, do you recall what was said exactly before I objected? The juror answered that the witness kept repeating the same things and counsel kept cutting him off so he didn't bother going any further. Still another juror recalled, he said something about how could a parent, a single parent—I remember it, but you told me to forget it so it doesn't count. Defense counsel then asked, what exactly did you hear before I objected? The juror responded, I thought they were trying to find out—he was— that's why he was investigating because he thought that a single parent with three children couldn't afford a lifestyle that they had. These interviews reveal that the trial justice was able to effectively and fairly discern what the jurors heard and what impact the witness's comment had on them, if any. The juror interviews also demonstrated that the jurors understood their oaths and underscored their readiness to comply with the court's instructions to disregard Martinez's testimony. Therefore, after viewing Martinez's comment in the context of the testimony in which it was given, and in light of the curative instruction and voir dire, we believe the trial justice was not clearly wrong when he determined that the jury was not affected by any prejudice arising from Martinez's regrettable remark about the time-shares. For all of the foregoing reasons, we conclude that the trial justice did not abuse his discretion when he denied the defendant's motion to pass the case.",analysis