State v. Rakosnik, A–13–663

• Decision Date: 15 July 2014
• Docket Number: No. A–13–663,A–13–663
• Court: Nebraska Court of Appeals
• Parties: State of Nebraska, appellee, v. Lewis D. Rakosnik, appellant

22 Neb.App. 194

849 N.W.2d 538

State of Nebraska, appellee,

v.Lewis D. Rakosnik, appellant

No. A–13–663

Court of Appeals of Nebraska.

Filed July 15, 2014

Appeal from the District Court for Pawnee County: Daniel E. Bryan, Jr., Judge. Affirmed.

John S. Berry, of Berry Law Firm, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Inbody, Chief Judge, and Moore and Pirtle, Judges.

Syllabus by the Court

1. Jury Instructions: Judgments: Appeal and Error. An assigned error of incorrect jury instructions is a question of law, and an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

2. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.

3. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

4. Trial: Testimony: Appeal and Error. The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion.

5. Evidence: Appeal and Error. 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.

6. Evidence: Appeal and Error. On a challenge to the sufficiency of the evidence, 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.

7. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

8. Jury Instructions: Appeal and Error. It is not error for a trial court to refuse to give a defendant's requested instruction where the substance of the requested instruction was covered in the instructions given.

9. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.

10. Trial: Evidence: Appeal and Error. On appeal, a defendant may not assert a different ground for his objection than was offered at trial.

11. Criminal Law: Trial: Juries: Appeal and Error. In a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant.

Pirtle, Judge.

INTRODUCTION

Lewis D. Rakosnik appeals his convictions from the district court for Pawnee County where a jury found him guilty of 39 counts of knowing and intentional abuse of a vulnerable adult, attempted theft by deception, and attempted knowing and intentionalabuse of a vulnerable adult. For the reasons that follow, we affirm.

BACKGROUND

Lewis is the nephew of Joseph M. Rakosnik (Mike). Lewis began to care for Mike in early 2011 when Mike was already in hospice care and his longtime partner, Evelyn Doeschot, could no longer care for him alone. Prior to that time, Lewis was a home health physical therapist for several years in Arizona, but he had not worked in that field since 2009. In 2008, his mother moved from Nebraska to Arizona to live with Lewis because she was ill. In 2010, they returned to Wilber, Nebraska. After his mother's death, he received a call from Doeschot asking him to help care for Mike and he moved into Mike's house to do so. During that time, Lewis obtained Mike's power of attorney and exercised control over Mike's finances and effected several financial and property transactions while acting under Mike's power of attorney.

Lewis was charged by information on April 16, 2012. Mike died April 27. The State sought leave to file an amended information on May 1, 2013, and the amended document was filed the same day. The information alleged 39 counts of knowing and intentional abuse of a vulnerable adult, attempted theft by deception, and attempted knowing and intentional abuse of a vulnerable adult. A jury trial took place on May 7 through 10.

Christina Hain, a registered nurse who provided home health and hospice care for Mike, testified at trial. She stated that she had over 20 years of experience, that she had the skills to evaluate the mental and physical status of her patients, and that such evaluations are done on each visit. Mike became Hain's patient in the home health area in 2010 and shifted to hospice in February 2011. She saw Mike roughly twice per week, and she talked to Mike, his family, and his caregivers about Mike's condition. She testified that Mike's mental state varied with each visit and that he was confused, sometimes to the point of not remembering who his caregivers were, though they were his longtime girlfriend, Doeschot, and his nephew, Lewis. Hain reported Mike displayed some impaired decisionmaking and was confused about new things happening in his life. Hain reported that in April, May, and June 2011, Mike's mental state varied, but that he was consistently confused.

Trooper Cory Townsend, an investigator with the Nebraska State Patrol, was assigned to investigate the complaints in this case. He interviewed Mike on October 19, 2011, at Mike's residence. Lewis said that when he came to Nebraska, Mike needed some help walking, but that Mike's condition declined quickly in the fall of 2010. Lewis told Townsend that Mike had a CT scan showing some brain shrinkage, which he later described as dementia. Lewis told Townsend that he initially lived in his parents' house in Wilber and visited Mike and Doeschot every 3 days or so. In February 2011, when Mike entered hospice care, Lewis moved into Mike's home.

Lewis told Townsend that he became the primary caregiver and that soon after, he acquired Mike's powers of attorney, both medically and “overall.” Lewis said Mike's hospice care told him that Mike needed a medical power of attorney, so he contacted Mike's attorney, Loren Joe Stehlik, to draft both powers of attorney. The documents were signed in mid-March at Mike's home. Lewis told Townsend that it took a while for Mike to understand he was signing documents granting Lewis his powers of attorney but that Mike eventually said, “I guess that would be okay.” Lewis testified that he had no doubt Mike knew what he was doing when he signed the powers of attorney.

Carolyn Yoble, an employee of a branch of the Table Rock Bank, testified that she is a notary public and was asked to notarize the power of attorney created for Mike. She testified that she was asked to go to Mike's house to notarize a document because it was hard for Mike to get around. When she arrived, she observed that Mike was eating. She said that he was having trouble keeping food on the fork and getting the fork into his mouth and that Doeschot was helping him with the meal. Yoble said Mike was quiet and seemed tired, and needed help signing the document, so Doeschot supported his hand while he signed. Doeschot testified that she was present, but did not know if Mike knew what he was signing.

About 10 days after the power of attorney was signed and notarized, Lewis came into the bank and asked to change the payable on death provision on multiple certificates of deposit (CD's). The CD's were in Mike's safety deposit box and were payable on death to Doeschot. Yoble said she was not in the bank when Lewis arrived, but she came in during the process and asked the teller not to change the provisions on the CD's until she knew the bank had the authority to make the change. After speaking to Mike's attorney, Stehlik, Yoble again told the teller not to make any changes. Lewis left with two CD's unchanged, but the change had already been made on two other CD's.

The next day, Lewis received a telephone call from the bank telling him to return the CD's to the bank. He was told the CD's would need to be reverted to their original form because the bank's attorney stated the payable on death payee could not be changed from Doeschot to himself. Lewis did not return them, but, rather, he took them to a different branch of the bank in August 2011 and asked that they be cashed. The money was deposited into Mike's account. Lewis later told Townsend that in March 2011, he used the power of attorney to change the payee on two of the CD's from Doeschot to himself and his three siblings.

Townsend asked Lewis about his assets, and Lewis said he did not have any. Lewis later recalled that he had a house in Arizona, a pickup truck, and an ownership interest in his parents' property in Wilber. He reported that he “ran out of money” in April 2011. He also reported that his physical therapy license expired sometime in 2010, but that he was eligible to renew it anytime within 3 years. Lewis reported that he was not eligible for unemployment and had a number of expenses, including gas, electric bills for the Arizona property, utilities for the Wilber property, taxes, insurance, et cetera. He also indicated he went to a casino approximately one to three times per week. He told Townsend he paid his utilities and other expenses...