State v. Zoie H. (In re Interest Zoie H.)
| Decision Date | 24 January 2020 |
| Docket Number | No. S-18-1028.,S-18-1028. |
| Citation | 304 Neb. 868,937 N.W.2d 801 |
| Parties | IN RE Interest of ZOIE H., a child under 18 years of age. State of Nebraska, appellee, v. Zoie H., appellant. |
| Court | Nebraska Supreme Court |
Joe Nigro, Lancaster County Public Defender, James G. Sieben, and Mark D. Carraher, for appellant.
Patrick F. Condon, Lancaster County Attorney, Mary Norrie, and Elise Harris, Senior Certified Law Student, for appellee.
Heavican, Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Zoie H. appeals from an order of the separate juvenile court adjudicating her pursuant to Neb. Rev. Stat. § 43-247(2) (Reissue 2016) for the act of attempted theft by unlawful taking, $5,000 or more. We affirm.
On the afternoon of September 25, 2018, Heidi Cuca was fueling her Lexus at a convenience store in Lincoln, Nebraska. While standing outside the Lexus, Cuca observed two young females had entered her vehicle and were seated inside—one in the driver’s seat and the other in the backseat. The female in the driver’s seat was later determined to be Zoie.
It appeared to Cuca that Zoie was trying to start the Lexus, but was having trouble getting the engine to turn over. Cuca heard the female in the back seat shout, " ‘Zoie let’s go.’ " So Cuca attempted to retrieve the Lexus keys from inside the vehicle and throw them. An altercation ensued, during which Zoie shouted, " " The convenience store manager heard Cuca yelling for help and called the 911 emergency dispatch service.
Zoie escaped before police arrived, but someone was able to grab Zoie’s arm and hold her long enough for Cuca to take a photograph. Cuca provided the photograph to police, who eventually located Zoie and contacted her at school a few days later.
Sgt. Mike Ripley, an officer with the Lincoln Police Department, met with Zoie and her father to conduct a followup investigation. Zoie waived her Miranda rights and agreed to an interview. Zoie admitted she made plans to steal the Lexus, explaining she " ‘just felt like taking the car.’ " Zoie described how she and a friend entered the Lexus from the passenger side while Cuca was fueling up on the other side. Zoie also described the altercation that ensued and how she eventually escaped.
On October 16, 2018, the State filed an amended supplemental petition in the separate juvenile court of Lancaster County. It alleged that on or about September 25, 2018, Zoie intentionally engaged in conduct which, under the circumstances as she believed them to be, constituted a substantial step in a course of conduct intended to culminate in her commission of the crime of theft by unlawful taking in the amount of $5,000 or more. Attempted theft by unlawful taking is a Class IIIA felony when the value of the thing involved is $5,000 or more.1
Zoie filed a motion to quash the amended supplemental petition. Alternatively, she filed a demand for jury trial. Both requests were premised on the enactment of Neb. Rev. Stat. § 28-1204.05 (Cum. Supp. 2018), which went into effect on July 19, 2018, and provides in pertinent part:
Other portions of the statute exempt members of the armed forces and law enforcement2 and establish a procedure for those under 25 years of age to request reinstatement of the right to possess a firearm.3 Zoie was not charged with violating § 28-1204.05, but her motion to quash alleged that adjudication for theft by unlawful taking over $5,000 "would subject [her] to criminal prosecution under an unconstitutional statute, Neb. Rev. Stat. § 28-1204.05 (Cum. Supp. 2018)." Zoie’s demand for a jury trial was also premised on the enactment of § 28-1204.05. Generally speaking, she argued that the statute’s restriction on firearm possession amounted to a penalty for being adjudicated and thereby rendered the adjudication proceedings a "serious criminal case" entitling her to a jury trial pursuant to Duncan v. Louisiana4 and State v. Wiltshire .5
After holding a hearing, the juvenile court overruled the motion to quash, finding there was no defect on the face of the amended supplemental petition. The juvenile court denied the demand for jury trial, reasoning that Neb. Rev. Stat. § 43-279(1) (Reissue 2016) requires the adjudication portion of juvenile court proceedings "shall be conducted before the court without a jury, applying the customary rules of evidence in use in trials without a jury." The matter proceeded to an adjudication hearing on the amended supplemental petition.
At the adjudication hearing, the State called three witnesses: Cuca, the convenience store manager, and Sergeant Ripley. Cuca described the events of September 25, 2018, as set out above, and identified Zoie as the female who attempted to steal the Lexus. The manager largely confirmed Cuca’s testimony, and she too identified Zoie as the female who attempted to steal the Lexus. Sergeant Ripley testified about his interview with Zoie, including that she received Miranda warnings prior to the interview.
Both Cuca and Sergeant Ripley offered testimony about the value of the Lexus. Cuca testified that she purchased the 2012 Lexus RX350 3 years earlier for around $21,000 and that it currently had 60,000 miles on it. When Cuca was asked her opinion on the value of the Lexus, Zoie objected to the question as speculative. The objection was overruled, and Cuca answered that according to Kelley Blue Book, the value of her Lexus with 60,000 miles "is around $21,000 list price." There was no motion to strike Cuca’s response and no cross-examination on Cuca’s valuation testimony.
Sergeant Ripley also relied on Kelley Blue Book for his valuation testimony. He estimated the "average trade in value" of the Lexus was $15,529. He did not contact Cuca to get information on the vehicle’s mileage, condition, or accessories. Instead, he used the value for a "base model" Lexus in "good" condition with 75,000 miles. When asked on cross-examination what the value of the Lexus would be if its condition had been "poor," Sergeant Ripley estimated it would still be between $10,000 and $12,000. He testified it was unlikely a 2012 Lexus in working condition would be worth less than $5,000. He based his opinion on his experience investigating car thefts and his research into the value of Cuca’s Lexus. There was no objection to Sergeant Ripley’s valuation testimony or to the admission of the Kelley Blue Book printout showing that valuation.
Zoie rested without presenting any evidence. In a journal entry and order filed October 23, 2018, the juvenile court adjudicated Zoie on the allegations of the amended supplemental petition, finding the State proved beyond a reasonable doubt that Zoie was a juvenile as described in § 43-247(2).
Zoie timely appealed and filed a petition to bypass that included a notice of constitutional question under Neb. Ct. R. App. § 2-109(E) (rev. 2014). We granted the petition to bypass.
Zoie assigns, restated, that the juvenile court erred by (1) overruling her motion to quash, (2) denying her demand for jury trial, and (3) finding she committed the act of attempted theft by unlawful taking, $5,000 or more, when the State failed to meet its burden of proof regarding the value of the vehicle.
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings.6
Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.7
The review of constitutional standards is a question of law and is reviewed independently of the trial court’s determination.8
Neb. Rev. Stat. § 29-1808 (Reissue 2016) provides, "A motion to quash may be made in all cases when there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged." We have consistently held that the proper procedure for raising a facial constitutional challenge to a criminal statute is to file a motion to quash, and all defects not raised in a motion to quash are taken as waived by a defendant pleading the general issue.9
But here, Zoie’s motion to quash did not challenge the constitutionality of the criminal statute on which she was being adjudicated. Instead, her motion to quash raised a facial constitutional challenge to an entirely different statute, § 28-1204.05. Zoie sought to quash the amended supplemental petition by arguing that adjudication for acts that would constitute theft by unlawful taking over $5,000 "would subject [her] to criminal prosecution under an unconstitutional statute, Neb. Rev. Stat. § 28-1204.05."
In the criminal context, a defendant is prohibited from attempting to circumvent or avoid conviction under a particular statute by asserting a constitutional challenge to another, collateral statute which is irrelevant to the prosecution.10 We have generally described this as a rule of standing and have applied it to motions to quash in a criminal prosecution, reasoning that a defendant has standing to challenge only those statutes that are relevant to the prosecution.11 We conclude this rule is equally applicable to motions to quash filed in juvenile adjudication proceedings.
Zoie was being adjudicated for acts which would constitute felony theft by unlawful taking, and her ...
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