Heavican , C.J. I. NATURE OF CASE Miguel Avalos and two of his sons were shot to death in their Omaha, Nebraska, home during an apparent home invasion robbery. Avalos was a known drug dealer. The attempted robbery was allegedly orchestrated by Greg Logemann, another drug dealer in the area. Logemann contacted the defendant, Anthony D. Davis, and another individual, Timothy Britt, about the opportunity to rob Avalos. At Davis' trial, multiple witnesses testified to observing that Logemann...
McCormack , J. I. NATURE OF CASE Shawn R. Erpelding was convicted in a jury trial in the district court for Buffalo County, Nebraska, of four counts of criminal nonsupport under Neb.Rev.Stat. 28-706 (Reissue 2008) for failure to pay 4 months of child support totaling $900. After his sentences were enhanced by the habitual criminal statute, Neb.Rev.Stat. 29-2221 (Reissue 2008), he was sentenced to concurrent terms of 10 to 15 years on each count. Erpelding appeals both his convictions...
Wright , J. NATURE OF CASE The appellee and cross-appellant, the Omaha Police Union Local 101, IUPA, AFL-CIO, also known as the Omaha Police Officers Association (Union), filed a declaratory judgment action against the appellant and cross-appellee, City of Omaha (City). The Union requested the district court declare that the collective bargaining agreement between the Union and the City had rolled over to the 2014 calendar year. The Union claimed that the City did not timely provide...
Miller-Lerman , J. NATURE OF CASE Susan M. DeJong was convicted after a jury trial of first degree murder and use of a deadly weapon to commit a felony for the death of her husband, Thomas DeJong (Tom). She was sentenced to a term of life imprisonment for the first degree murder conviction and a term of 50 to 50 years' imprisonment for the use of a deadly weapon to commit a felony conviction, to be served consecutively. On direct appeal, we affirmed Susan's convictions and sentences....
NATURE OF CASE Wright , J. On July 27, 2005, 13-year-old Efrain Ramos-Domingo (Efrain) was struck and killed by a Union Pacific Railroad Company (Union Pacific) train in Schuyler, Nebraska. Manuela Domingo Gaspar Gonzalez (Plaintiff), Efrain's mother, as personal representative of Efrain's estate, filed a wrongful death action against Union Pacific. Union Pacific moved for summary judgment on the wrongful death claim, which motion the district court sustained. The court concluded that as...
Heavican , C.J. INTRODUCTION In this conversion suit, Eric M. Zornes, as trustee for his revocable trust, appeals the district court's summary judgment in favor of his ex-wife, Julia A. Zornes, as trustee of her revocable trust. We also review the district court's partition of two promissory notes. We reverse, and remand for further proceedings. BACKGROUND In 2006, Eric won a lottery with a group of coworkers who had pooled their money. With their new wealth, Eric and his wife, Julia,...
Connolly , J. SUMMARY Donald L. Sidzyik pleaded no contest to second degree sexual assault under a plea agreement. On direct appeal, he argued that his trial counsel was ineffective for failing to object to statements made by the prosecutor at the sentencing hearing. We concluded that the State had materially breached the plea agreement, but we could not resolve Sidzyik's ineffectiveness claim on direct appeal because the record did not show if his trial counsel had a strategic reason for...
Cassel , J. I. INTRODUCTION This appeal arises from an unsuccessful will contest, premised upon undue influence and tried to a jury. The Nebraska Court of Appeals affirmed the district court's judgment. 1 We granted further review primarily to determine whether the jury should have been instructed regarding a "presumption of undue influence." After both sides have sustained their respective burdens of production, an instruction describing a permissible or probable inference of undue...
HEAVICAN , C.J. INTRODUCTION Michael S. Weichman, appellant, was convicted of first degree sexual abuse of an inmate and was sentenced to 1 to 2 years' imprisonment. At issue on appeal is whether statements made by Weichman during a polygraph examination were admissible against him at trial. We conclude that the statements were admissible and accordingly affirm. FACTUAL BACKGROUND Weichman was employed by the Nebraska Department of Correctional Services as a maintenance supervisor at...
Wright , J. NATURE OF CASE Lyle J. Carman appeals his conviction for "unlawful act manslaughter" under Neb.Rev.Stat. 28-305 (Reissue 2008). Carman's dump truck struck the rear of a car that had stopped or slowed due to highway construction. The collision forced the car off the highway, causing it to roll, and the driver was killed as a result. The unlawful acts for which Carman was convicted were following too closely and driving too fast for the conditions present. He claims these acts...
Cassel , J. INTRODUCTION For the third time, we consider an appeal from a judicial dissociation of four partners from a family agricultural partnership having assets consisting primarily of real estate. The main issue is whether the district court, in recalculating the buyout distributions, correctly implemented our mandate from the second appeal. The dissociating partners rely on a hypothetical capital gain on the real estate but ignore that this "gain" exceeds the total profit on the...
WRIGHT , J. NATURE OF CASE Jack E. Harris appeals the order of the district court which dismissed his motion for postconviction relief without prejudice pursuant to Neb. Rev. Stat. 29-3003 (Reissue 2008), because it was filed simultaneously with a motion for new trial and a motion for writ of error coram nobis. We reverse, and remand the cause to the district court for consideration of Harris' postconviction motion on its merits. SCOPE OF REVIEW Whether a claim raised in a...
McCORMACK , J. NATURE OF CASE A dairy appeals from the district court's order of summary judgment in favor of a manufacturer of a microprocessor-based milking control unit and the dealer of that unit (collectively the defendants). The principal issue is whether the dairy rebutted the defendants' prima facie case that mechanical components of the milking system maintained by the dairy and not a part of the microprocessor-based control unit were the proximate cause of the alleged damages....
Miller-Lerman , J. I. NATURE OF CASE Joshua W. Nolan, the appellant, was convicted of first degree murder and use of a deadly weapon to commit a felony in connection with the killing of Justin Gaines. He was sentenced to a term of life imprisonment for the first degree murder conviction and a term of 10 years' imprisonment for the use of a deadly weapon to commit a felony conviction, to be served consecutively. On direct appeal, we affirmed Nolan's convictions and sentences. See State v....
Miller-Lerman , J. NATURE OF CASE Jason William Custer appeals his convictions and sentences for first degree murder, use of a firearm to commit a felony, and being a felon in possession of a firearm. We affirm Custer's convictions, and we affirm his sentences as modified. STATEMENT OF FACTS The charges against Custer arose from an incident in which he shot and killed Adam McCormick outside a residence in Sidney, Nebraska, on November 3, 2012. In the information filed in the district...
Miller-Lerman , J. NATURE OF CASE Damian C., the appellant, and Tiffany M., the appellee, have a minor child together, Jakai C. In July 2011, the district court for Sarpy County filed a "Decree of Paternity, Custody, and Parenting Time," which awarded joint legal custody to the parties, awarded physical custody to Tiffany, and ordered Damian to pay child support. In 2012, Damian filed a complaint to modify the decree, seeking sole legal and physical custody and an order that Tiffany pay...
CONNOLLY , J. SUMMARY Ryan L. Poe moved for postconviction relief from his convictions for first degree murder and use of a deadly weapon to commit a felony. After the district court overruled the motion, we remanded the cause for an evidentiary hearing on one of Poe's ineffective assistance of counsel claims. Specifically, we directed the court to decide if Poe's trial counsel should have impeached the State's key witness with a statement the witness made to Poe's girlfriend to the...
CASSEL , J. I. INTRODUCTION In this direct appeal, Sarah A. Cullen challenges her conviction, pursuant to jury verdict, and her sentence for intentional child abuse resulting in death. 1 An infant died after being in Cullen's care. She primarily argues that evidence of the child's prior injuries while in her care should have been excluded as prior bad acts under rule 404 of the Nebraska Evidence Rules. 2 We conclude that the prior injuries were inextricably intertwined with the fatal...
Heavican , C.J. INTRODUCTION David E. Ware's motion for postconviction relief was denied without an evidentiary hearing. Ware appeals and argues he was entitled to an evidentiary hearing on his claims that his sentence violated the Eighth Amendment to the U.S. Constitution and that his trial counsel was ineffective. We affirm. BACKGROUND On April 13, 1984, Ware was convicted of first degree murder following a bench trial. Ware was subsequently sentenced to life imprisonment. This court...
Cassel , J. INTRODUCTION Two appeals arose from Victor L. Carter's fifth postconviction proceeding and have been consolidated on appeal. After the district court summarily overruled Carter's postconviction motion, he filed the first appeal. And after the district court denied Carter's application to proceed in forma pauperis (IFP) on appeal, on the basis that the underlying motion was frivolous, he filed another appeal to challenge that denial. The second appeal lacks merit, and we affirm...
