State v. Bartel, S-20-148.

CourtSupreme Court of Nebraska
Writing for the CourtHeavican, C.J.
Citation308 Neb. 169,953 N.W.2d 224
Parties STATE of Nebraska, appellee, v. Marc J. BARTEL, appellant.
Docket NumberNo. S-20-148.,S-20-148.
Decision Date15 January 2021

308 Neb. 169
953 N.W.2d 224

STATE of Nebraska, appellee,
Marc J. BARTEL, appellant.

No. S-20-148.

Supreme Court of Nebraska.

Filed January 15, 2021

Michael J. Wilson, of Berry Law Firm, Lincoln, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Heavican, C.J.

953 N.W.2d 228
308 Neb. 171


In October 2016, a jury found Marc J. Bartel guilty of violating a domestic abuse protection order. Bartel filed a motion for new trial based on a stipulated order, entered in June 2017 in his separate domestic case, that purported to render the original protection order "void ab initio."

The county court denied Bartel's motion, and the district court found no abuse of discretion. We affirm.



In 2015, Bartel and his then-wife, M.B., were experiencing marital problems. Pursuant to Neb. Rev. Stat. § 42-924 (Reissue 2016), M.B. petitioned for a domestic abuse protection order against Bartel. On September 16, after hearing oral arguments and receiving evidence, the district court for Douglas County made a finding that "a credible threat was made [by Bartel] that would put [M.B.] in fear of bodily injury." Based on these findings, the district court issued a protection order, effective for "one year from the date of" the order, "unless modified by order of the court."

308 Neb. 172

Under the protection order, Bartel was "enjoined and prohibited from imposing any restraint upon the person or liberty of [M.B.]"; "enjoined and prohibited from threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of [M.B.]"; "enjoined and prohibited from telephoning, contacting, or otherwise communicating with [M.B.]"; and "ordered to stay away from" M.B.’s home and work addresses.

Within the protection order, the district court also made specific allowances for Bartel to continue visitations with his two daughters at least 1 day every week. The district court ordered: "The children will be exchanged at [a church near M.B.’s house]. [Bartel is] to remain in vehicle except to assist children from car seats." Despite his general prohibition against having any contact with M.B., Bartel was permitted "to notify her by text message that he [is] unable to pick up [the] children" for visitation.

At the September 16, 2015, hearing on M.B.’s petition for a protection order, the district court specifically asked Bartel whether he understood that "violation of this order is an arrestable offense." Bartel responded, "Yes."


Saturday, October 31, 2015, was scheduled to be a regular visitation day between Bartel and his daughters. Prior to picking up the girls that morning, Bartel texted M.B. and asked if she would agree to let him pick up their daughters 30 minutes earlier than usual. Bartel wished to take the daughters with him to a funeral in a town an hour away.

M.B. agreed, but asked that on this day only Bartel park on the street in front of her house to pick up the girls. M.B. testified that because the pickup time was earlier

953 N.W.2d 229

than usual, she believed it would be easier to ready the girls for their day if she did not need to drive them to the court's ordered site of dropoff at the church.

308 Neb. 173

Just after the agreed-upon time, Bartel arrived in front of M.B.’s home. He texted M.B. that he was there and remained in his car. The girls emerged from the house, and Bartel exited his car to help load them into car seats.

Bartel became angry because he believed that his daughters appeared "disheveled." He had purchased dresses and tights for them to wear to the funeral, but they were wearing casual shirts and leggings instead. M.B. testified that she had dressed the girls in leggings to make them comfortable during the drive and that their dresses were packed in a sack carried by one of the girls. Taking the girls’ sack and ordering the girls back inside the house to change, Bartel marched behind them, toward M.B.’s front door.

M.B., still standing on her front stoop, became concerned when she observed Bartel striding toward her house "like a freight train." M.B. reminded Bartel that he was prohibited by the protection order from approaching her house. He responded that he was coming in to have the girls change their clothes. Alarmed, M.B. ushered her daughters inside the house and slammed the front door shut, locking it with a deadbolt.

M.B. and Bartel each called the police. M.B. testified at trial that she had been afraid for her life and that until the police arrived several minutes later, she held a baseball bat for protection. M.B.’s mother, who was visiting from out of state, gathered the girls in a back bedroom to keep them away from the altercation.

Bartel continuously knocked at M.B.’s front door for several minutes, cursing. He then returned to his car and began pacing alongside it until police arrived.

Two Omaha police officers arrived on the scene. They separately spoke with M.B. and Bartel. One of the officers then searched police records and discovered the protection order requiring Bartel to stay away from M.B.’s home address. The officers arrested Bartel for violation of the protection order and took him into police custody.

308 Neb. 174

On October 7, 2016, at a trial in the county court for Douglas County, M.B. testified as a witness against Bartel. She averred that the protection order had been in effect and that Bartel had violated it on October 31, 2015. A jury convicted Bartel of having knowingly violated the protection order, a Class I misdemeanor.1 The county court later sentenced Bartel to 12 months’ probation, a $250 fine, and a suspended sentence of 2 days in jail.


In June 2017, while his direct appeal was still pending, Bartel moved to dismiss the appeal and filed a motion for new trial.2 He requested that the county court vacate his conviction because of an order entered in another case.

In M.B. and Bartel's separate domestic relations case, on June 5, 2017, the district court for Douglas County entered an order holding that its "September 16, 2015[,] Protection Order shall be deemed void ab initio , and shall be considered void from the date of entry of this Order." The order stated that "the parties acknowledge and specifically intend and anticipate that this Order will vacate or void [Bartel's] conviction of violating the Protection Order." At

953 N.W.2d 230

that time, M.B. also agreed not to object if Bartel moved for new trial in county court after his conviction for violation of the protection order.

In January 2018, at the county court's hearing on Bartel's motion for new trial, Bartel offered the June 2017 order and asserted that it was newly discovered evidence relevant to his defense at trial. He also alleged that M.B.’s stipulation to the district court not to object to a motion for new trial implied that she had perpetrated a fraud against the county court by testifying for the State at trial. Finally, Bartel contended that because his conviction was premised on a protection order that was now void ab initio, his conviction was an error of law.

308 Neb. 175

The county court orally issued an order denying Bartel's motion for new trial. Sitting as an intermediate appellate court,3 the district court for Douglas County affirmed, reasoning that the June 2017 order in the domestic relations case reflected the parties’ negotiations after trial based on then existing circumstances and was not newly discovered evidence relevant to Bartel's criminal trial. The district court further found no error in the jury's conviction or the county court's sentence and denied Bartel's motion for new trial.

Bartel filed a timely notice of appeal, and we moved the appeal to our docket.4


On appeal, Bartel assigns only one error: that it was error for the district court to uphold the county court's denial of Bartel's motion for new trial in the 2016 criminal case, considering the stipulated June 2017 order in his domestic relations case.


The standard of review for a trial court's denial of a motion for new trial after an evidentiary hearing is whether the trial court abused its discretion in denying the motion.5 An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable, or when its action is clearly against justice, conscience, reason, or evidence.6


More than 8 months after he was convicted in 2016 of violating a domestic abuse protection order, Bartel filed a


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    ...28 F.3d 823 (8th Cir. 1994).88 See Greenberg v. Fireman's Fund Ins. Co. , 150 Neb. 695, 35 N.W.2d 772 (1949). See, also, State v. Bartel , 308 Neb. 169, 953 N.W.2d 224 (2021).89 State v. Tainter , 218 Neb. 855, 359 N.W.2d 795 (1984).90 See State v. Swindle , 300 Neb. 734, 915 N.W.2d 795 (20......
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    ...evidence and "could not possibly havePage 21 been introduced at trial because it had not yet occurred"); State v. Bartel, 953 N.W.2d 224, 233 (Neb. 2021) ("Whereas an object is new at the moment that it begins to exist, it is newly-discovered once it is 'revealed' or 'found out' to have pre......
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