State v. Menuey

• Citation: 239 Neb. 513,476 N.W.2d 846
• Decision Date: 15 November 1991
• Docket Number: No. 90-745,90-745
• Parties: STATE of Nebraska, Appellee, v. Jeffry E. MENUEY, Appellant.
• Court: Supreme Court of Nebraska

Page 846

476 N.W.2d 846

239 Neb. 513

STATE of Nebraska, Appellee, v. Jeffry E. MENUEY, Appellant.

No. 90-745.

Supreme Court of Nebraska.

Nov. 15, 1991.

Syllabus by the Court

1. Convictions: Appeal and Error. In determining the sufficiency of the evidence to support a finding of guilt in a criminal case, the Nebraska Supreme Court does not resolve conflicts in the evidence, determine the plausibility of explanations, or weigh the evidence, such matters being for the finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them.

2. Trial: Juries. Once a case has been submitted to the jury, the jury shall have no communication with nonjurors.

3. Trial: Juries. Once discharged, an alternate juror becomes a stranger to the jury and is not to be present or otherwise participate in the jury's deliberations.

4. Trial: Juries. Although the presence of a discharged alternate juror in the jury room constitutes an unwarranted intrusion upon the jury and is to be guarded against, such an intrusion which can be said to have been harmless beyond a reasonable doubt does not require a new trial.

5. Rules of Evidence: Jurors: Testimony. Neb.Rev.Stat. § 27-606(2) (Reissue 1989) permits a juror to testify regarding whether any outside influence was improperly brought to bear upon any juror.

6. Sentences: Appeal and Error. Sentences imposed within the statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.

Dean S. Forney, Box Butte County Public Defender, for appellant.

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

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. INTRODUCTION

Pursuant to verdicts, the defendant-appellant, Jeffry E. Menuey, was adjudged guilty on each of two counts of criminal nonsupport of his children, in violation of Neb.Rev.Stat. § 28-706 (Reissue 1985). He was thereafter sentenced on the first count to imprisonment for a period of 1 year and on the second count to probation for a period of 5 years. He assigns as error the district court's (1) failure to find the evidence insufficient to support the verdicts, (2) failure to find that the presence during the jury's deliberations of a discharged alternate juror "violates the verdict," and (3) imposition of an excessive sentence. We affirm.

II. FACTS

Defendant and Marilynn Menuey were married on June 6, 1969, and divorced on December 2, 1983, after producing two sons: Lance Aaron, 19 years of age at the time of the subject trial, which was held May 29 and 30, 1990, and Jay Ryan, 15 years of age. Prior to the divorce and up until his resignation on July 20, 1987, defendant was employed as a conductor by Burlington Northern Railroad, worked out of Alliance, Nebraska, and earned approximately $38,000 a year.

The divorce decree gave the parties joint custody of the boys and required defendant to pay the sum of $300 per month for the support of his two sons. A modification order entered September 4, 1986, gave full custody to the former wife and provided that defendant was to pay $380 in child support ($190 for each boy) during the months of October through December 1986, and beginning in January 1987, $570 per month. This order further required him to notify the district court of any changes in his address, telephone number, Social Security number, and employer.

Defendant has made no support payments since August 1, 1987, except for $1,125.88 paid on February 13, 1990, from the proceeds of a sheriff's sale of his automobile. As of the time of trial, defendant owed $18,083.65 in delinquent child support. Neither did the defendant keep the court advised of his whereabouts or of the changes in his employment status.

During the 3 intervening years between the entry of the divorce decree and the modification order, defendant was active in his sons' lives. He coached their sports teams and maintained a strong relationship with them. Defendant testified, however, that following the modification order and his former wife's successful bid to gain full custody of the boys, his relationship with the boys deteriorated.

Defendant's principal defense for his failure to pay child support and to notify the court of his whereabouts and employment status rests on his assertion that following the modification order, he became so upset about no longer being able to see his sons on a regular basis and his former wife's attempts to garnish his wages that he became mentally and emotionally incapable of functioning, to the point that his work suffered. He also claims that his decision to terminate his employment and leave Alliance was not an attempt to avoid child support but, rather, to solve his emotional problems.

Several witnesses testified regarding defendant's depressed state after his loss of joint custody. A fellow employee stated that defendant's relationship with his boys went "downhill" and that he was "[d]epressed, distraught, he just wasn't himself." This coworker's wife testified that "[m]ental-wise [defendant] just couldn't function. He was very, very disturbed." Another fellow employee and friend of the defendant claimed that defendant was "very emotionally distraught, [he] is normally a very outgoing person." Defendant's mother said he was "[d]own in the dumps, depressed, unhappy, just everything, he didn't know what to do." According to defendant's father, defendant told him he "was going crazy ... he didn't know whether to shot [sic] himself."

On May 28, 1987, defendant went on a 30-day leave of absence from his Burlington Northern employment. During this leave, he and his present wife, whom he married on September 17, 1985, traveled to Canada, Washington, Oregon, Mexico, and Arizona. Near the end of his leave, defendant decided he could not go back to Alliance because of "the pressures that had built upon us," explaining that

[a]ll the people that I had known all my life had been alienated against me, I felt nobody understood what I was trying to tell them, the concerns with my kids, everything else, I just felt if I came back I'd be in the same position I was in when I left.

While on leave from Burlington Northern, defendant searched for and found other work. In June 1987, he interviewed with a prospective employer in Seattle, Washington, and then traveled to its headquarters at Tucson, Arizona. He was offered a job, but found it would not be available until September 30, 1987. Consequently, he rejected that offer and instead took a job with another employer around July 20 or 25, 1987. He began at $4.25 an hour and eventually earned $6 an hour for a 40-hour week. He worked with that employer until it closed on December 22 or 23.

In January 1988, defendant and his present wife traveled to Corpus Christi, Texas, where he was offered a position with a Boston, Massachusetts, employer. The couple began traveling to Boston, but stopped in Alabama to visit his present wife's oldest daughter. While there, defendant contacted the Boston company and was told his job had been eliminated.

Defendant then secured his most recent job on February 4, 1988, as a laborer for an Alabama employer. Defendant was paid $4.20 an hour for a 40-hour week and remained so employed until January 5, 1990, when he resigned, a week after he was arrested. Thus, during the approximately 2 1/2 years that defendant was gone from Alliance, he was employed for all but the months of June and July 1987 and January 1988.

The former wife contends that defendant's motive for leaving Alliance and cutting off contact with people in the community was to avoid paying the modified child support. According to her, defendant "said that if anyone tried to make him pay more than $300, he would just leave and [she] would never be able to get a dime and [she] would never be able to do nothing about it." The older boy testified that his father said "if my mother kept harassing him, he would just pack up and leave and we would never hear from him again." The defendant denied these accusations. However, in a letter to his supervisor at Burlington Northern, he wrote: "I feel that I can no longer work for a company that allows an ex-spouse to garnishe [sic] my paycheck at will for any whim she choses [sic].... I am better off working for a non-corporation." On two occasions prior to defendant's leaving Burlington Northern, the former wife sought to garnish his wages. She was successful the first time; the second time she was not.

During the defendant's and his present wife's travels, defendant made no child support payments, claiming he did not make enough money. According to his testimony, he earned approximately $21,000 in 1987, approximately $12,000 in 1988, and $16,400 in 1989. The former wife has been the sole financial provider for the two boys since July 1987. The older son testified that the last time he saw defendant was on December 25, 1986, and the last time he talked to him was on January 12, 1987. Since that time, the boys have received neither money nor mail from defendant. Nonetheless, defendant claims he never tried to conceal his whereabouts from the former wife. He admitted, however, that he knew at all times how much he owed in child support and that he knew he was required by law to pay as ordered, but he made no attempt to modify or reduce his support obligation.

When the case was submitted to the jury shortly before noon, the district court discharged the alternate juror. Absurdly enough, the bailiff nonetheless invited the alternate to have lunch with the jurors. In preparing to embark for lunch, several of the jurors and the alternate returned to the jury room to leave some items and retrieve others. According to the alternate, no discussion of the case took place at this time. Both the bailiff and the alternate testified that the case was not discussed either during lunch...