State v. Yelli

• Decision Date: 07 April 1995
• Docket Number: No. S-94-206,S-94-206
• Parties: STATE of Nebraska, Appellee, v. John W. YELLI, Appellant.
• Court: Nebraska Supreme Court

Page 250

530 N.W.2d 250

247 Neb. 785

STATE of Nebraska, Appellee, v. John W. YELLI, Appellant.

No. S-94-206.

Supreme Court of Nebraska.

April 7, 1995.

Syllabus by the Court

1. Paternity: Proof. In a civil action, only a preponderance of the evidence is necessary to sustain the establishment of paternity.

2. Criminal Law: Proof. The burden in a criminal proceeding is to produce proof beyond a reasonable doubt of every element of a charged offense.

3. Res Judicata: Collateral Estoppel: Proof. The doctrines of res judicata and collateral estoppel are not applicable when the burden of persuasion is different in the subsequent proceeding.

4. Issue Preclusion: Proof. A party who has carried the burden of establishing an issue by a preponderance of the evidence is not entitled to assert preclusion in a later

action that requires proof of the same issue by a higher standard.

5. Res Judicata: Actions: Judgments. An acquittal or dismissal in a prior criminal prosecution is no bar to the prosecution of a later civil action, and such acquittal or dismissal concludes no issues in a later civil action.

6. Juvenile Courts: Jurisdiction: Criminal Law. A parent's conduct may be grounds for a juvenile court to acquire jurisdiction notwithstanding that the parent was acquitted of a criminal charge for conduct detrimental to the child.

7. Res Judicata: Paternity: Child Support. A judgment in a civil paternity adjudication is res judicata as between the same parties in a subsequent civil action such as a support modification proceeding.

8. Due Process: Right to Counsel: Paternity. Both federal and state due process dictate that an indigent defendant in a state-assisted civil paternity action has the right to the services of appointed counsel.

9. Right to Counsel: Records: Presumptions: Appeal and Error. Where a record is silent as to a defendant's opportunity for counsel, an appellate court may not presume that such rights were respected.

10. Right to Counsel: Paternity: Criminal Law: Evidence. A civil paternity adjudication obtained in a state-initiated proceeding in which the defendant was denied the right to counsel lacks the reliability that warrants its admission in a criminal proceeding.

11. Paternity: Proof. A mother's testimony that one is the father of her child is sufficient only if she be corroborated as to material facts and circumstances which tend to support her testimony and from which, together with her testimony as to the principal act, the inference of paternity may be drawn.

12. Double Jeopardy. The Double Jeopardy Clauses of the federal and state Constitutions forbid a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.

13. Double Jeopardy: Appeal and Error. While the Double Jeopardy Clauses of the federal and state Constitutions do not protect against a second prosecution for the same offense where a conviction is reversed for trial error, they bar retrial if the reversal is necessitated because the evidence was legally insufficient to sustain the conviction.

John Jedlicka, Holt County Public Defender, for appellant.

Don Stenberg, Atty. Gen., and Marilyn B. Hutchinson, Lincoln, for appellee.

WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

The plaintiff-appellee, State of Nebraska, charged the defendant-appellant, John W. Yelli, with two counts of criminal nonsupport of two minor children, in violation of Neb.Rev.Stat. § 28-706 (Reissue 1989). More specifically, the State claims that Yelli failed to make the support payment he was previously ordered to make in each of two separate state-initiated civil paternity actions in which he was determined to be the father of the minor who was the subject of each action. Pursuant to verdict, the district court adjudged Yelli guilty as charged and imposed sentence. Yelli then appealed to the Nebraska Court of Appeals, urging that as there had been no showing that he had either been represented by or waived counsel in the paternity actions, the district court erred in receiving the prior adjudications in evidence over his objection. The Court of Appeals agreed and thus vacated the judgment of the district court. State v. Yelli, 3 Neb.App. 148, 524 N.W.2d 353 (1994). The State thereafter successfully petitioned this court for further review, asserting, in summary, that the Court of Appeals erroneously (1) ruled the prior adjudications to have been inadmissible, (2) concluded that the evidence did not otherwise support the verdicts, and (3) determined to vacate the judgment of the district court. We now modify, and as modified affirm, the judgment of the Court of Appeals.

II. SCOPE OF REVIEW

A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994). However, an appellate court has an obligation to reach conclusions of law independent of those of the inferior courts. See Jindra v. Clayton, 247 Neb. 597, 529 N.W.2d 523 (1995).

III. FACTS

In addition to the evidence detailed in part I above, the mother of one of the minors in question testified that her child was born on November 12, 1982; that although she had never been married to Yelli, she engaged in sexual intercourse with him at some unspecified time; and that Yelli was her child's father. This mother further testified, over Yelli's objection, that she had been involved in a prior paternity adjudication and that Yelli was ordered to pay child support.

The mother of the other minor testified that the child was born on January 22, 1986. This second mother also testified that although she had never married Yelli, he was her child's father. Over Yelli's objection, she testified in addition that the court previously had determined that Yelli was the child's father and had ordered him to pay child support.

IV. ANALYSIS

Section 28-706(1) provides: "Any person 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." The offense is a felony if the nonsupport is in violation of any order of any court, § 28-706(7); otherwise, the offense is a misdemeanor, § 28-706(6).

1. ADMISSIBILITY OF PRIOR ADJUDICATIONS

In the context of the charges in this case, the requirement of § 28-706(1) that one know or reasonably should know that one has an obligation to support a minor child makes an adjudication that Yelli is the father of the minor whose support is at issue an essential element of each of the crimes charged. In addition, the requirement of § 28-706(7) that there be in existence a court order directing support makes such order an essential element of the crime.

(a) Noncollateral Attack

The State urges that Yelli cannot be permitted to collaterally attack the final adjudications of paternity and support entered in the prior civil paternity actions. Clearly, collateral attack on a previous judgment is impermissible unless the attack is grounded upon lack of jurisdiction over the parties or subject matter. VonSeggern v. Willman, 244 Neb. 565, 508 N.W.2d 261 (1993); In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992); Shade v. Kirk, 227 Neb. 775, 420 N.W.2d 284 (1988); State ex rel. Ritthaler v. Knox, 217 Neb. 766, 351 N.W.2d 77 (1984); State v. Reuter, 216 Neb. 325, 343 N.W.2d 907 (1984); Griffin v. Vandersnick, 210 Neb. 590, 316 N.W.2d 299 (1982). Even if erroneous, a judgment is not subject to collateral attack unless it is void, such as would be the case where a judgment is entered without jurisdiction over the person or subject matter. VanDeWalle v. Albion Nat. Bank, 243 Neb. 496, 500 N.W.2d 566 (1993).

But a mere challenge to the admissibility of a prior judgment as evidence in a subsequent trial does not constitute an attack on the validity of the prior judgment. Yelli has not asserted that the courts entering the prior civil adjudications of paternity lacked jurisdiction, nor has he challenged the validity of the adjudications. Therefore, Yelli has not collaterally attacked the prior adjudications; he has simply objected to their admissibility as evidence of the essential elements of the criminal nonsupport charges filed against him.

(b) No Issue or Claim Preclusion

With such distinction in mind, it is necessary to consider whether a prior civil adjudication of paternity and concurrent order of support are admissible in a subsequent criminal nonsupport trial as evidence of the elements of the criminal offense.

It must be borne in mind that in a civil action, only a preponderance of the evidence is necessary to sustain the establishment of paternity. Gregory v. Davis, 214 Neb. 408, 334 N.W.2d 1 (1983), Snay v. Snarr, 195 Neb. 375, 238 N.W.2d 234 (1976); Neb.Rev.Stat. § 43-1412 (Reissue 1993). In contrast, the burden in a criminal proceeding is to produce proof beyond a reasonable doubt of every element of a charged offense. State v. McHenry, 247 Neb. 167, 525 N.W.2d 620 (1995).

Traditionally, judgments have been regarded as hearsay and not within any exception to the hearsay rule; a prior judgment is hearsay, since it is based on the opinion of a judge or jury consisting of persons who have not been cross-examined and have no personal knowledge of the underlying facts. Hiroshi Motomura, Using Judgments as Evidence, 70 Minn.L.Rev. 979 n. 4 (1986), citing 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence p 803(22) (1995). Courts had therefore been unwilling to admit prior judgments into evidence. McCormick on Evidence § 298 (John W. Strong 4th ed. 1992). As a consequence, doctrines of claim and issue preclusion, res judicata, and collateral estoppel have developed, which allow for the admission of prior judgments in a...