State v. Crowdell

• Decision Date: 07 August 1992
• Docket Number: S-90-1071,Nos. S-90-1070,s. S-90-1070
• Citation: 487 N.W.2d 273,241 Neb. 216
• Parties: STATE of Nebraska, Appellee, v. Robie CROWDELL, Appellant. STATE of Nebraska, Appellee, v. Michael CROWDELL, Appellant.
• Court: Nebraska Supreme Court

Page 273

487 N.W.2d 273

241 Neb. 216

STATE of Nebraska, Appellee, v. Robie CROWDELL, Appellant.

STATE of Nebraska, Appellee, v. Michael CROWDELL, Appellant.

Nos. S-90-1070, S-90-1071.

Supreme Court of Nebraska.

Aug. 7, 1992.

Syllabus by the Court

1. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a bench trial, an appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented, which are within a fact finder's province for disposition.

2. Convictions: Appeal and Error. A conviction in a bench trial of a criminal case is sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that conviction. The trial court's findings have the effect of a verdict and will not be set aside unless clearly erroneous.

3. Intent: Words and Phrases. The intent involved in conduct is a mental process and may be inferred from the conduct itself, the actor's language in reference to the conduct, and the circumstances surrounding the incident.

4. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal unless the sentencing court has abused its discretion in the sentence imposed.

5. Trial: Appeal and Error. An abuse of discretion takes place when the trial court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.

6. Sentences: Probation and Parole: Appeal and Error. Whether the sentence imposed is probation or incarceration is a matter within the discretion of the trial court, whose judgment denying probation will be upheld in the absence of an abuse of discretion.

7. Sentences: Probation and Parole. In considering probation in lieu of a sentence, the court should not withhold imprisonment when a lesser sentence would depreciate the seriousness of the offender's crime or promote disrespect for the law.

Kevin V. Schlender, York, for appellants.

Don Stenberg, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

COLWELL, District Judge, Retired.

Defendants, Robie Crowdell and Michael Crowdell, each appeal their separate convictions on one count of intentional abuse of a minor child, their son John Jeffrey Crowdell (Jeff), in violation of Neb.Rev.Stat. § 28-707 (Reissue 1989), a Class IV felony punishable by maximum imprisonment for 5 years, a $10,000 fine, or both such imprisonment and fine, Neb.Rev.Stat. § 28-105(1) (Reissue 1989). Following entry of not guilty pleas, defendants' cases were joined for a bench trial, which resulted in their separate convictions as charged. Each defendant was sentenced to serve not less than 20 months nor more than 5 years' imprisonment. Separate appeals were perfected and consolidated for argument. We affirm.

Defendants assign two errors: First, the evidence was insufficient to sustain their convictions. Second, the court imposed excessive sentences.

Section 28-707 provides:

(1) A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a minor child to be:

(a) Placed in a situation that endangers his or her life or health; or

(b) Cruelly confined or cruelly punished; or

(c) Deprived of necessary food, clothing, shelter, or care.

....

(4) Child abuse is a Class IV felony if the offense is committed knowingly and intentionally.

BACKGROUND FOR CHARGES

At the outset, a summary of the facts and circumstances leading to the charges against defendants is helpful. Defendants are the parents of five children. Jeff, the next oldest child, was born on June 19, 1977, and weighed 4 pounds 15 ounces; at age 12 1/2 he was 49 1/2 inches tall and weighed 46 pounds. Defendants testified that at an early age Jeff was moody and displayed aggressive interaction with his siblings. For this, defendants consulted several medical experts, including Dr. Richard Brouilette, a family practitioner, who conducted a blood sugar test and reported to defendants that Jeff's blood sugar level was low. From this report, defendants, particularly Robie Crowdell, concluded that Jeff's behavioral problems were caused by hypoglycemia. However, Dr. Brouillette testified that he did not at any time prescribe dietary restrictions to be imposed on Jeff. An entry in Dr. Brouillette's patient records on August 9, 1983, noted Jeff's small size and contained a notation that "mom really doesn't want to investigate it much so I guess we'll leave it go at that." In September 1985, defendants consulted Dr. Carol Huseman and requested that she test Jeff for hypoglycemia. Dr. Huseman conducted the test, confirmed that Jeff was borderline hypoglycemic, and recommended that Jeff receive frequent feedings to alleviate the problem. Dr. Huseman stated that restricting food intake, especially in children, can cause a decrease in blood sugar levels, causing hypoglycemia.

Nevertheless, in direct opposition to Dr. Huseman's recommendation regarding frequent feedings, defendants imposed continuous dietary restrictions upon Jeff in order to limit his sugar intake. A typical meal at home for Jeff consisted of half a cheese sandwich and a hard-boiled egg, except approximately once a week when Jeff was allowed to eat beef, mashed potatoes, and green beans. His school lunch was made up of half a cheese sandwich and a small bag of potato chips.

To satisfy his hunger, Jeff began sneaking food from the kitchen and garbage, for which discipline was finally imposed in 1985 by Jeff's being locked at night in a dark, unheated, and filthy bedroom. Jeff's nighttime detention continued until February 6, 1989, when a search warrant was executed by York County officers at approximately 9:30 p.m., pursuant to a complaint made by Jeff's teacher.

The temperature on February 6, 1989, reached a high of 10 to 12? F. When the deputies entered the house, they conducted a search of the second floor and discovered two bedrooms, one with the door partially ajar and the other with the door closed and secured with a padlock on the outside of the door. Sleeping in the unlocked room were three children, later identified as Michael James Crowdell, born December 25, 1974; Jesse Aaron Crowdell, born December 9, 1978; and Jacqueline Sue Crowdell, born May 11, 1981. The unlocked bedroom was heated by an electric heater and was described by the deputies as "very warm."

In order to investigate the contents of the locked room, the deputies were required to remove the padlock from the door and unlatch a clasp. The deputies noticed that the room was much colder than the unlocked bedroom. Deputy Dale Radcliff stated that the room was "very cold" and further testified: "I had ... my heavy winter jacket on and I was cold in that room."

Inside the room the deputies found a small boy, later identified as Jeff, huddled up and sitting on the floor. Jeff was attempting to keep warm by covering himself with three badly soiled blankets placed on the linoleum floor to fashion a makeshift bed. Although there was a rollaway bed folded up in one corner of the room, Jeff stated that he was not allowed to use it because he had previously been caught smuggling food upstairs and using the bed as a "stashing" place to hide food for later consumption. Jeff's bedroom also contained a large table saw and several piles of lumber stacked against two walls and resembled a storage room or a workshop instead of a child's bedroom. The room did not contain a working light fixture and was not heated by any source other than the heat radiated into the room from the adjoining rooms and the chimney which passed through one wall. Further, compounding the lack of heat reaching the room, two of the outside walls of the house contained numerous holes through which light was visible during the day and one of which was apparently large enough to allow a small bird to find its way into the room. Jeff was locked up each evening at approximately 8:30 and forced to remain there, alone, until the following morning, when one of his parents or one of his siblings, with permission from a parent, would remove the lock and release him. Although the testimony of Jeff and his parents conflicted as to what age Jeff was when his confinement began, the defendants admitted the practice had been ongoing for over 2 years, while Jeff testified the period of confinement was over 5 years.

At trial, Jeff described the bathroom conditions he was forced to endure while confined in his room:

Q. ... Jeff, what would you do if you had to go to the bathroom, after you were put in the room?

A. Usually, I'd have to--Well, if I had to urinate, I'd go out my window. If I had to do otherwise, I'd usually go in my shirt or something.

Q. Okay. Would you ever try to let anybody know that you had to go to the bathroom ...[?]

A. Sometimes. I'd just knock on the floor, or knock on the door to be let out. But, sometimes they weren't supposed to let me out and stuff.

Q. Would your parents let you out when you'd knock and say you had to go to the bathroom?

A. Sometimes.

Although unable to get out of his room to use the bathroom, Jeff was punished by the defendants for defecating in his room and was forced to clean up the feces and wash his clothing. Jeff testified: "[O]nce ... when they were really getting fed up with it, one time I had to carry it [feces] downstairs with my hands."

Michael Crowdell testified that Jeff was confined in a locked, unheated, and dirty room each night "[a]s a last resort. Because he kept sneaking down at night and snitching food and getting into other things, causing damage. We finally, as a last resort, after warning him several times, locked his door so that he could not get out at night." Additionally, Michael Crowdell stated that Jeff was kept separated from his...