State v. Boyd

• Citation: 949 N.W.2d 540,28 Neb.App. 874
• Decision Date: 22 September 2020
• Docket Number: No. A-19-753.,A-19-753.
• Parties: STATE of Nebraska, appellant and cross-appellee, v. Paula BOYD, appellee and cross-appellant.
• Court: Court of Appeals of Nebraska

28 Neb.App. 874

949 N.W.2d 540

STATE of Nebraska, appellant and cross-appellee,

v.Paula BOYD, appellee and cross-appellant.

No. A-19-753.

Court of Appeals of Nebraska.

Filed September 22, 2020.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman, and Donald W. Kleine, Douglas County Attorney, and Katie Benson, for appellant.

Mallory N. Hughes, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., Omaha, for appellee.

Moore, Chief Judge, and Riedmann and Welch, Judges.

Welch, Judge.

I. INTRODUCTION

Paula Boyd was convicted of abuse of a vulnerable adult, a Class IIIA felony, and was sentenced to 6 months’ probation and ordered to pay a $5,000 fine. The State has appealed, contending that the sentence imposed was excessively lenient. Boyd has cross-appealed, contending that the evidence was insufficient to support her conviction. For the reasons set forth here, we affirm Boyd's conviction and sentence.

II. STATEMENT OF FACTS

Sometime in 2017, Boyd sold her east coast home and planned to move to the west coast. During her cross-country trip, she stopped in Omaha, Nebraska, in May to visit her sister and their 89-year-old mother, Dorothy Pistillo. During Boyd's nearly monthlong stay in Omaha, she resided with her mother to help care for her in order to relieve her sister from those duties.

On June 15, 2017, Boyd called the 911 emergency dispatch service and firefighters and paramedics arrived at Pistillo's home shortly before 11:30 a.m. Boyd met responders at the front door. Boyd reported that her mother had been on the floor "for a few days," had not been eating, and would not get up. One of the first responders described "a pungent, bad odor" that smelled like "rotten fecal matter" coming from the residence. Another described the odor emanating from the home as smelling like "feces" and a "strong urine smell," and still another described the odor as smelling like "death." First responders found Pistillo lying on the floor of the living room with her body, from the shoulders down, covered with a blanket and her head resting on a pillow. Pistillo was covered in her own fecal matter and urine, and the carpet was stuck to her body.

After an Omaha firefighter and paramedic spoke with Pistillo, he decided that she needed further care and decided to transport her to the hospital despite Pistillo's statement that she did not want to go to the hospital. En route to the hospital, Pistillo received inravenous fluids and oxygen. During the ambulance transport to the hospital, one paramedic described Pistillo as "alert and oriented." However, another paramedic stated that although Pistillo was "very weak and fragile," Pistillo was able to answer some questions and "seemed to understand initially what was going on," but by the time that the ambulance reached the hospital, Pistillo "seemed a little more confused [and] not able to answer all questions."

At the hospital, Pistillo reported to medical personnel that "she [felt] terrible [and] ha[d] pain everywhere." Pistillo's injuries included open sores to her right buttocks area, as well as to her right back area, knee, foot, and toes. Boyd told doctors that she "ha[d] tried to get [her mother] to go to the doctor recently but [her mother] refus[ed]."

Hospital personnel contacted law enforcement to report concerns that Pistillo may have been abused or neglected. An Omaha police detective spoke with Pistillo in her hospital room and stated that Pistillo "appeared confused" and that Pistillo's answers "didn't make a lot of sense." She further testified that, based upon her physical observations of Pistillo, it appeared to the detective that Pistillo needed a caretaker and that Pistillo needed someone to assist her with feeding, bathing, and cleaning herself.

Later that afternoon, officers returned to Pistillo's residence to execute a search warrant. Later that day, other officers contacted Boyd. An Omaha police report stated that Boyd informed officers that she had moved into her mother's home about 4 weeks prior and that Boyd's sister had "normally watched over their mother until [Boyd] started living there." Boyd informed one of the officers that

her mother had fallen on the living room floor in front of the fireplace about a week ago and has been laying there since. She said her mother has not eaten all week and has urinated/defecated on herself the time she has been on the floor. BOYD pointed out the spot on the floor where her mother was laying which she said she cleaned up the mess. [The reporting officer] noticed what appeared to be a spot on the carpet where someone had attempted to clean the carpet due to the swirl pattern on the carpet. [The reporting officer] asked BOYD why she did not call 911 for help or her mother[’s] doctor and she said her mother told her not to. BOYD said she called 911 this morning for a medic to check her mother. [The reporting officer] called dispatch who advised [the reporting officer] they received a 911 call from [the] above address today at 11:20 from "Nick". [The reporting officer] did not speak to "Nick", Mother, or [Boyd's sister] who were not on call.

Boyd was charged with abuse of a vulnerable adult, a Class IIIA felony, and tampering with physical evidence, a Class IV felony. A trial to the bench was held where the aforementioned evidence was presented. Following the bench trial, the district court found Boyd guilty of abuse of a vulnerable adult and found her not guilty of tampering with physical evidence. Following the preparation of a presentence investigation report, the district court stated that it had considered the factors set forth in State v. Thurman , 273 Neb. 518, 730 N.W.2d 805 (2007), and sentenced Boyd to 6 months’ probation and ordered her to pay a $5,000 fine. The court noted at the sentencing hearing that he considered "the five days that [Boyd had] already served as sufficient."

III. ASSIGNMENTS OF ERROR

The State contends that the district court abused its discretion in imposing an excessively lenient sentence. Boyd cross-appealed, contending that the evidence was insufficient to support the verdict.

IV. STANDARD OF REVIEW

An appellate court will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support that conviction. State v. Montoya , 304 Neb. 96, 933 N.W.2d 558 (2019). In making this determination, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact finder's province for disposition. Id. 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. Id.

Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court's discretion. State v. Gibson , 302 Neb. 833, 925 N.W.2d 678 (2019).

V. ANALYSIS

1. BOYD'S APPEAL

We first address Boyd's assignment of error in connection with her cross-appeal. Boyd assigns and argues that there was insufficient evidence to support a finding that she knowingly and intentionally neglected a vulnerable adult in violation of Neb. Rev. Stat. § 28-386 (Reissue 2016). Specifically, as it relates to the elements of that offense, Boyd argues that there was insufficient evidence to find that (a) Pistillo was a " ‘vulnerable adult ,’ " (b) Boyd was a " ‘caregiver ,’ " and (c) Boyd committed an " ‘act ’ " which caused or permitted Pistillo to be neglected as required under § 28-386(1)(f). We will discuss these arguments independently.

(a) Vulnerable Adult

Boyd was specifically charged with a violation of § 28-386(1)(f). That statute provides that "[a] person commits knowing and intentional abuse, neglect, or exploitation of a vulnerable adult or senior adult if he or she through a knowing and intentional act causes or permits a vulnerable adult or senior adult to be: ... (f) [n]eglected[.]" § 28-386(1). The State's amended information alleged that, between June 10 and 15, 2017, Boyd did "knowingly and intentionally commit [an] act, which caused or permitted ... PISTILLO, a vulnerable adult, to be neglected, in violation of Neb. Rev. Stat. § 28-386 [,] a Class IIIA Felony." Boyd first argues that there was insufficient evidence in the record to support a finding that Pistillo was a "vulnerable adult."

Neb. Rev. Stat. § 28-371 (Reissue 2016) defines "[v]ulnerable adult" as "any person eighteen years of age or older who has a substantial mental or functional impairment or for whom a guardian or conservator has been appointed under the Nebraska Probate Code." Because no guardian or conservator had been appointed for Pistillo, Boyd argues that the State was required to show that Pistillo suffered from a "substantial mental or functional impairment" in order to qualify as a vulnerable adult and simply failed to do so at the time of trial. In support of this contention, Boyd argues:

There was no evidence presented by any expert or lay witness that [Boyd's] mother was suffering from a substantial mental or functional impairment during the time [Boyd] was staying at her residence. On the contrary, the record is full of paramedic and medical opinions describing [Boyd's] mother as "answering questions appropriately", "no possible injury", "normal baseline for patient with respect to neurological state", "alert", "oriented", "well nourished", and capable of "declining a feeding tube."

Brief for appellee on cross-appeal at 9-10.

Neb. Rev. Stat. § 28-368 (Reissue 2016) defines "[s]ubstantial functional impairment" as "a substantial incapability, because of physical limitations, of living independently or...