State v. Bull
| Decision Date | 01 March 2013 |
| Docket Number | No. S–11–1072.,S–11–1072. |
| Citation | 285 Neb. 369,827 N.W.2d 466 |
| Parties | STATE of Nebraska, appellee, v. Autumn EAGLE BULL, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[285 Neb. 369]1. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whetherthe evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
2. Criminal Law: Directed Verdict. In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.
3. Directed Verdict. If there is any evidence which will sustain a finding for the party against whom a motion for directed verdict is made, the case may not be decided as a matter of law, and a verdict may not be directed.
4. Trial: Presumptions. Triers of fact may apply to the subject before them that general knowledge which any person must be presumed to have.
5. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.
6. Jury Instructions: Appeal and Error. The failure to object to instructions after they have been submitted to counsel for review will preclude raising an objection on appeal, unless there is a plain error indicative of a probable miscarriage of justice.
Michael T. Varn, Gordon, for appellant.
Jon Bruning, Attorney General, Carrie A. Thober, and James D. Smith, Lincoln, for appellee.
Autumn Eagle Bull was convicted in the Sheridan County Court of misdemeanor child abuse as the result of an incident in which she left her three children unattended in her home. The Sheridan County District Court affirmed her conviction. She appeals, contending the evidence at trial was insufficient to support a conviction for the charged offense. We affirm.
On April 19, 2011, Eagle Bull was living in Gordon, Nebraska, with three of her children: Rayhan C., who was 10 years old and in the fourth grade; Toby C., who was almost 8 years old and in the second grade; and Petra P., who was 6 weeks old.
At approximately 5 p.m., Toby telephoned her grandfather, who lived in Pine Ridge, South Dakota, and told him she needed an adult to accompany her to a school event that evening. The grandfather was concerned because Toby seemed excited and nervous, and he thought someone should go to Eagle Bull's home. At some point between 5 and 5:30 p.m., the grandfather called his wife, Lynnell Eagle Bull (Lynnell), at her workplace in Pine Ridge to tell her about Toby's call.
Lynnell called Susan Kaplan, who lived across the street from Eagle Bull and sometimes stayed with Eagle Bull's children. Lynnell asked Kaplan to check on the children. Lynnell then drove to Gordon and arrived at Eagle Bull's home 35 or 40 minutes later. When Lynnell arrived, Toby was in the front yard riding her bike and Eagle Bull's car was in the driveway. Lynnell entered the home and found Eagle Bull, Kaplan, Rayhan, and Petra.
Lynnell asked Eagle Bull whether she had left the children alone. Eagle Bull said she had not, but when asked, she did not identify any adult who had been with them. Lynnell noticed that Eagle Bull was “kind of swaying” and smelled of alcohol. Lynnell called the police, and when an officer arrived, Lynnell insisted that Eagle Bull be arrested. Lynnell admitted that she and Eagle Bull did not get along well. Although the children wanted to stay in Gordon with Eagle Bull, Lynnell took them home with her that night.
Approximately 2 weeks prior to April 19, 2011, Petra had been hospitalized for 2 or 3 days with a respiratory disorder. Petra was discharged without any medication, but Eagle Bull was given a “breathing machine” to treat Petra at home “when she needed it.”
Kaplan testified that after Lynnell called her, she went to Eagle Bull's home and found the children home with no adult in the house. The two older children were sitting on the couch, and the baby, Petra, was awake and lying on the couch by her siblings. About 30 minutes after Kaplan arrived, Eagle Bull came home. Lynnell arrived within 5 or 10 minutes, and she and Eagle Bull argued.
Officer Clay Heath of the Gordon Police Department was dispatched to the Eagle Bull residence at 6:50 p.m. He met Lynnell on the porch and followed her into the house. He described both Eagle Bull and Lynnell as “emotional,” and he testified that it “appeared that they had been arguing.” He talked with Eagle Bull and observed that her speech was slurred, her eyes were bloodshot and watery, she smelled of alcohol, and she was having trouble standing. Eagle Bull submitted to a preliminary breath test administered by Heath at the home. The test indicated she was intoxicated.
Eagle Bull told Heath she left the residence about 5 p.m. She said that she was driving around and drinking with friends and that their car got stuck on a dirt road. She assured Heath that someone had been watching her children. Eagle Bull initially said Kaplan was watching them, but when Heath told her Kaplan was not present until 6 p.m., Eagle Bull said Mindy Janis, her roommate at the time, had been watching the children.
Heath walked through the house with Eagle Bull. He saw that there was food in the cupboards and refrigerator; that the house was clean; and that the children appeared healthy, clean, and appropriately clothed. He saw no dangerous conditions in the home, such as loose wires or firearms, and testified that he had no concerns with the children's environment. Ultimately, however, he issued a citation to Eagle Bull for child neglect because she left baby Petra for “one hour unattended.”
Janis testified that she was living with Eagle Bull on April 19, 2011. On that day, Janis went to work at 11 a.m. and returned home about 6:30 p.m. Janis said Eagle Bull had not asked her to babysit the children, but did call her at approximately 3 p.m. and asked whether Janis could go and open the house for the children. Janis told Eagle Bull that she could not leave work. She did not open the house. Janis did not know how the children got into the home on April 19.
Eagle Bull was charged with misdemeanor child abuse and tried by a jury. After the State presented its evidence, Eagle Bull moved for a directed verdict, arguing the State failed to present sufficient evidence to prove the charge against her. Her motion was overruled. Eagle Bull presented no evidence and then renewed her motion for directed verdict, which was again overruled. The jury returned a verdict of guilty, and the county court sentenced Eagle Bull to 30 days in jail. She appealed to the district court, which affirmed the conviction and sentence. The district court reasoned the evidence was sufficient to establish that Eagle Bull acted negligently, because she left the children home alone for a period of more than 1 hour while she went drinking with friends. And it found the evidence was sufficient to support a finding that she denied Petra necessary care under Neb.Rev.Stat. § 28–707(1)(c) (Cum.Supp.2010), because
[Eagle Bull] left unattended her 45 day old, 10 year old and eight year old children with no supervision for at least one hour. The 45 day old child was two weeks removed from a hospital stay for RSV. Although the child was no longer on medication, a breathing machine was in the home in the event breathing trouble recurred. A reasonable jury could conclude that the infant was not being watched over or provided for during this period of time sufficient for conviction.
In reaching this conclusion, the district court relied on the dictionary definition of “care” as “ ‘to pay attention to, watch over, take care of; look after; provide for.’ ” It concluded that there was “no question” that Eagle Bull did not “ ‘pay attention to, watch over, take care of or look after’ ” her children while she was away from home. It concluded that because the evidence was sufficient to show a denial of necessary care under § 28–707(1)(c), it did not have to resolve whether the evidence was also sufficient to show endangerment under § 28–707(1)(a).
Eagle Bull perfected this timely appeal, which we moved to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.1
Eagle Bull assigns, restated, that the district court erred in concluding (1) that the county court did not err in overruling her motion for directed verdict and (2) that the evidence was sufficient to support her conviction.
In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.2 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.3
In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character,...
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