State v. Meyer
| Decision Date | 28 September 1990 |
| Docket Number | No. 89-1238,89-1238 |
| Citation | 460 N.W.2d 656,236 Neb. 253 |
| Parties | STATE of Nebraska, Appellee, v. Marlin E. MEYER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Intent: Words and Phrases. In the context of a criminal statute, that which is done willfully or purposefully rather than accidentally or involuntarily is done intentionally; being a state of mind, the intent operative at the time of an action may be inferred from the words and acts of an accused and from the facts and circumstances surrounding the conduct.
2. Rules of Evidence: Jurors: Affidavits. While under Nebraska law a juror's affidavit may be used to show that in reaching its verdict the jury considered prejudicial information emanating from a source other than the evidence presented at trial, such an affidavit may not be used to show a jury's misunderstanding of the law as such misunderstanding inheres in the verdict.
3. Jury Instructions. It is a trial court's duty to properly instruct a jury on the law applicable to the case.
Lance J. Johnson, Hebron, for appellant.
Robert M. Spire, Atty. Gen., and Terri M. Weeks, Lincoln, for appellee.
Defendant-appellant, Marlin E. Meyer, was, pursuant to verdict, adjudged guilty of failing to support his minor son, in violation of Neb.Rev.Stat. § 28-706(1) (Reissue 1989), which provides, in relevant part, that one "who intentionally fails, refuses, or neglects to provide proper support which he or she knows or reasonably should know he or she is legally obliged to provide to a ... minor child ... commits criminal nonsupport." In seeking to overturn his conviction Meyer asserts, in summary, that the district court erred in (1) excluding certain evidence, (2) finding the evidence sufficient to support the verdict, and (3) failing to instruct the jury as he requested. The summarized errors being without merit, we affirm.
Meyer's marriage to the mother of the child in question was dissolved on June 12, 1985. The dissolution decree orders, in accordance with the parties' settlement agreement, that Meyer pay the mother $222 per month for the support of the subject child until sale of the former family home and sets Meyer's child support obligation thereafter at $200 per month. The agreement, which is incorporated into the decree, specifically notes that the amount of the child support initially ordered was equal to the monthly payment due the holder of the mortgage on the home and that it was set at that amount to enable the mother to make the mortgage payments. The agreement also permits the mother to occupy the property until June 1, 1988, gives each party 30 days thereafter within which to purchase the property by paying the other party one-half of the assessed value of the property, and provides that if neither party purchases the other's interest, the property be otherwise sold by the end of 1988 and the proceeds divided equally between the parties. The agreement requires the mother to make the mortgage payments, pay all taxes and insurance premiums relating to the property, and hold Meyer harmless on those obligations.
Meyer admits that he is in arrears in his child support obligation. The records of the clerk of the district court reveal that Meyer made regular payments through that office until May 1986, when he made no payment. He thereafter made a payment of $100 in both June and July 1986 and has since made no payment through that office.
The mother testified that she made the mortgage payments until shortly before she left the property in September 1986. No further payments having been made, the mortgage became delinquent, and sometime during the last quarter of 1986 Meyer and the mother, without the exchange of money, conveyed the property to the mortgage holder.
Regarding the first summarized assignment of error, Meyer urges that by refusing to receive evidence concerning the "circumstances surrounding the condition of or sale of the ... former residence; the treatment of [the child] by [the mother] and her [three] sons [by a former marriage]; or the circumstances surrounding [a certain] juvenile court proceeding," brief for appellant at 5, the district court deprived Meyer of the opportunity to establish that his failure to support his son was not intentional. In fact, however, the district court did receive some evidence on those matters.
Meyer and the mother both testified as to the delinquency of the mortgage payments and the voluntary conveyance of the property to the mortgagee, and Meyer testified both that the property had been damaged during the mother's occupancy and that the mortgage holder acquired the property for the amount remaining due on the mortgage, which was less than the value of the property. Although the child denied it, Meyer testified that his son was mistreated by the mother and her three other sons. The record also establishes that juvenile court proceedings were instituted because the child had run away from his mother's home and that, as a consequence, he was placed in foster care. In addition, Meyer testified that he chose not to make the ordered child support payments because the money was not being used to care for his son or to make the mortgage payments and because after the child was placed in foster care, ...
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