Petition for Writ of Certiorari — Nebraska v. Yelli

= Supreme Court, U.S.

FILED

95-267 AUG 15 1995!

No. —___ossice OF THE CLERK

In The

Supreme Court of the United States

October Term, 1995

»

STATE OF NEBRASKA,

Petitioner,

JOHN W. YELLI,

Respondent.

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Petition For Writ Of Certiorari

To The Nebraska Supreme Court

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PETITION FOR WRIT OF CERTIORARI

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Submitted by:

Don STENBERG

Attorney General

MariLyn B. HuTCHINSON

Counsel of Record

Assistant Attorney General

P.O. Box 98920

Lincoln, Nebraska 68509-8920

Tel: (402) 471-2682

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REWIEW

Is it inconsistent with this Court’s holding in Custis v.

United States, 511 U.S. ____, 128 L.Ed.2d 517, 1145S. Ct. 1732

(1994), and its precedents for the Nebraska Supreme

Court to reverse and dismiss a conviction in a criminal

action for nonsu»port because orders, entered in prior

civil paternity actions which did not show the defendant

was represented by counsel or had waived it, were admit-

ted to prove violation of those same court orders, an

element of the crime.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

TABLE OF CONTENTS «occ ccccscvcsipontavprianine’ li

TABLE OF AUTHORITIES. «oc cccecensescctsteceers iii

OFFICIAL AND UNOFFICIAL REPORTS OF OPIN-

IONS DELIVERED IN THIS CASE............... 1

GROUND FOR JURISDICTION 22 ccc ccccccvesvens's 1

CONSTITUTIONAL PROVISIONS AND STATUTES

EVOLVED ov. cc's 8 000tks 4a Fee Weta eT Ee 2

STATEMENT OF THE CASE... cccssccscaveccsosss 3

ARGUMENT oss cd ccdeneuussunspopebeaneeauseaees 7

THE NEBRASKA SUPREME COURT HAS

EXTENDED THE SCOPE OF COLLATERAL

ATTACKS ON PRIOR JUDGMENTS BEYOND THE

LIMITS RECOGNIZED BY THIS COURT AS NEC-

ESGARY POR DUB PRUR Bee ens crscrcisncssueses 7

A. The tight to COWIE ics caves eveseaceeeusis z

B. The right of collateral attack................. 8

C. The right of collateral attack is limited to sen-

tencing proceedings where a prior conviction

is offered to enhance the penalty for a subse-

quent CONVICUON 66 <0 cscicerexsnepyanes Uekexs 9

D. The Nebraska Supreme Court extended collat-

eral attacks beyond the limits recognized by

ld COU. cs on cccivescensd¥anhaeteeea en 11

CORNCLARIIIN oo cvnvaxpenesavenseeueeeaeeadelves 14

iii

TABLF OF AUTHORITIES

Page

Cases

Burgett v. Texas, 389 U.S. 109 Sg Se ee renee 8

Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757

RS SEIS SR 2 ree a 4,11

Custis v. United States, 511 U.S. __, 128 L. Ed. 2d

ware eee me Ge Asan (199O)... . ok cece cess 6, 9, 10, 13

Gagnon v. Carpelli, 411 U.S. 778 (1973) .............. 8

Gideon v. Wainwright, 372 U.S. 335 (1963) ........... 7

Lassiter v. Department of Social Services, 452 U.S.

MNCL c Dike cain hs 4 4<%s4 vee reesbacweses 7

Nichols v. United States, 511 U.S. __,, 128 L. Ed.

me 7a, BAe CE 1921 CIGDO)..... 20. cee cc cess 8, 9

Scott v. Illinois, 440 U.S. 367 (1979) ...........0000... 7

State v. Yelli, 3 Neb. App. 148, 524 N.W.2d 353

SSCS ivy are wage ees Vs 000s 60 e860 es 1

State v. Yelli, 247 Neb. 785, 530 N.W.2d 250 (1995) ..6, 12

United States v. Tucker, 404 U.S. 443 (1972).......... 8

STATUTES

ee eens eh ou dee kane ebbiceeeaes 2

Neb. Rev. Stat. § 28-706(1) and (7) (1989) ...... 2, 4, 11

CONSTITUTIONAL PROVISIONS

Constitution of the United States, Article V.......... 2

Nebraska Constitution, Article I, sec. 3............... 2

OFFICIAL AND UNOFFICIAL REPORTS

OF OPINIONS DELIVERED IN THIS CASE

The decision of the Nebraska Supreme Court in ques-

tion here is reported at State v. Yelli, 247 Neb. 785, 530

N.W.2d 250 (1995). Appendix at App. 1.

That decision affirmed as modified the decision of

the Nebraska Court of Appeals reported at State v. Yelli, 3

Neb. App. 148, 524 N.W.2d 353 (1994). Appendix at App. 20.

That decision reversed and vacated the unreported

rulings and decision of the District Court of Holt County,

Nebraska, Case No. 19654, overruling defendant’s motion

in limine, Appendix at App. 29, and motion to dismiss

(based partly on that motion in limine) and finding

defendant guilty of criminal nonsupport as charged.

Those rulings are unreported.

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GROUND FOR JURISDICTION

A.

The opinion of the Nebraska Supreme Court in ques-

tion here was filed April 7, 1995.

B.

The State of Nebraska’s motion for rehearing was

filed April 11, 1995, and overruled by the Nebraska

Supreme Court on May 17, 1995. (A motion for rehearing

is timely under Rule 13.A. of the Nebraska Supreme

Court if it is filed within 10 days of the release of the

opinion.)

c.

Jurisdiction is conferred upon this Court to consider

this matter by 28 U.S.C. § 1257 and Rule 13.1 of this

Court.

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CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

No person .. . shall be deprived of life,

liberty, or property, without due process of law;

Constitution of the United States, Article V.

{N]or shall any State deprive any person of life,

liberty, or property, without due process of law;

Constitution of the United States, Article XIV.

No person shall be deprived of life, liberty,

or property, without due process of law.

Nebraska Constitution, Article I, sec. 3.

(1) 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 spouse,

minor child, minor stepchild, or other depen-

dent commits criminal nonsupport.

(7) Criminal nonsupport is a Class IV felony if

it is in violation of any order of any court.

Neb. Rev. Stat. § 28-706(1) and (7) (1989).

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STATEMENT OF THE CASE

The facts.

John W. Yelli was found in 1988 to be the father of a

son and ordered to support him and in 1989 to be the

father of a daughter and ordered to support her. He did

not appeal those decisions and each became final. How-

ever, in 1993 when he was charged under Neb. Rev. Stat.

§ 28-706(1) with two counts of Criminal Nonsupport as a

felony for violating those orders of support, he claimed it

would be unconstitutional to use the orders as evidence

in the subsequent criminal prosecutions brought to

enforce them because they did not show he was repre-

sented by counsel or waived counsel. The district court

overruled his objections and admitted the orders as evi-

dence. A jury found defendant guilty as charged and he

was convicted.

On appeal, the Nebraska Court of Appeals was per-

suaded by Yelli’s argument analogizing his trial to a

sentencing hearing where uncounseled prior convictions

cannot be used to enhance the penalty for a subsequent

conviction. Accordingly, it found the orders inadmissible,

reversed his conviction and vacated the judgment of the

district court. The Nebraska Supreme Court affirmed the

judgment of the Court of Appeals except it directed the

case to be dismissed.

The federal question.

The federal question posed to this Court was first

presented to the District Court of Holt County, Nebraska,

as a Motion in Limine in Case No. 19654. Defendant

asked the court to prohibit introduction or use of those

orders “[s]ince defendant was not afforded counsel in

those proceedings they were not constitutional orders

according to the Constitution of the State of Nebraska.”

Although he did not mention in his motion a particular

right or the federal constitution, in his argument to the

court he relied first on Carroll v. Moore, 228 Neb. 561, 423

N.W.2d 757 (1988). In that case the Nebraska Supreme

Court concluded that both federal and state due process

dictate that an indigent defendant in a state-assisted

paternity action has the right to the services of an attor-

ney. Defendant in the present case argued a civil adjudi-

cation entered in a state-initiated paternity action when

he was without counsel should not be used to prove a

subsequent criminal action any more than a conviction in

a criminal action can be used to enhance a subsequent

conviction if the defendant was without counsel in the

earlier proceedings and did not waive it. The district

court found that right to counsel did not preclude the use

of a judgment entered in a civil paternity case on a silent

record (not showing either advisement of the right,

waiver of the right, or any request to exercise the right) in

a subsequent criminal case for criminal nonsupport under

Neb. Rev. Stat. § 28-706(1). Appendix at App. 29.

At his jury trial, certified copies of two final judg-

ments of paternity and child support were received over

Yelli’s objection on motion in limine grounds and the

court overruled the objections.

Defendant’s duty of support was shown not only by

copies of those judgments but also in testimony to which

Defendant did not object or which he elicited himself

through cross-examination of the mothers of the children

he had not supported.

The record does not show Yelli was indigent at the

time of the paternity proceedings or that he had asked for

counsel. It does include facts from which an inference can

be drawn that he was not indigent at that time.

When the Defendant moved to dismiss the action at

the close of the state’s case, partly on motion in limine

grounds, the court overruled the motion. The defendant

was convicted.

On appeal to the Nebraska Court of Appeals, the

Defendant assigned one error: “admitting evidence from

past paternity cases, where John Yelli did not have an

attorney nor waive the right to an attorney.” He argued

he was denied due process when those judgments were

used against him in a criminal nonsupport action.

The Nebraska Court of Appeals found Yelli’s analogy

to criminal enhancement proceedings persuasive. Appen-

dix at App. 26. It held if the record in a state-initiated

paternity action does not affirmatively show that the

defendant was represented by or waived his right to

counsel in the prior state-initiated paternity adjudication,

the same defendant in a subsequent criminal nonsupport

action may object to the use of the prior paternity adjudi-

cation as evidence of paternity. Id. It reversed and

vacated the judgment of the district court. Id.

The State petitioned for further review of that deci-

sion by the Nebraska Supreme Court. It argued this Court

has set limits to collateral attacks as a method of enforc-

ing an indigent defendant’s right to counsel so it was

error for the Court of Appeals to find it error to admit

evidence of the prior paternity adjudications. Id. The

Nebraska Supreme Court sustained that petition and

granted further review. Appendix at App. 17.

On review, the Nebraska Supreme Court found the

decision of the Court of Appeals did not permit the

defendant to make a collateral attack on the former judg-

ments of paternity, but to challenge their admissibility for

being unreliable inasmuch as the defendant was not rep-

resented by and did not waive counsel in those proceed-

ings. State v. Yelli, 247 Neb. 785, 788-795, 530 N.W.2d 250

(1995). It ordered the case dismissed. Otherwise it

affirmed the judgment of the Nebraska Court of Appeals.

Id. at 796. Appendix at App. 16.

The State of Nebraska then moved for a rehearing by

the Nebraska Supreme Court. The motion was denied.

Appendix at App. 18.

The State of Nebraska moved to recall the mandate,

arguing the application of such an exclusionary rule in

the present case is inconsistent with the thrust of deci-

sions of this Court, including Custis, which have nar-

rowly limited the scope of collateral attacks on prior

judgments permitted as an enforcement tool. The motion

was denied. Appendix at App. 19.

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ARGUMENT

THE NEBRASKA SUPRE?‘E COURT HAS

EXTENDED THE SCOPE OF COLLATERAL

ATTACKS ON PRIOR JUDGMENTS BEYOND

THE LIMITS RECOGNIZED BY THIS COURT

AS NECESSARY FOR DUE PROCESS.

The right of a defendant to collaterally attack in a

sentencing proceeding his uncounseled conviction

offered to enhance the penalty for a subsequent convic-

tion is well recognized. Defendant in the present case

sought and received an extension of that right beyond the

limits recognized by this Court.

A. The right to counsel.

The Sixth Amendment requires that an indigent

defendant charged with a felony in state court proceed-

ings have counsel appointed for him. Gideon v. Wain-

wright, 372 U.S. 335 (1963).

A defendant charged with a misdemeanor has no

constitutional right to counsel where no sentence of

imprisonment is imposed. Scott v. Illinois, 440 U.S. 367

(1979).

A civil proceeding is at least one step removed from

conviction of a misdemeanor when considering whether

one has a right to counsel. Thus, in Lassiter v. Department

of Social Services, 452 U.S. 18 (1981), the Court found no

absolute constitutional right of an indigent parent to

appointed counsel in child termination proceedings, but

held that should be decided on a case-by-case basis.

Similarly, whether indigent probationers at a probation

revocation hearing are entitled to appointed counsel must

be determined on a case-by-case basis. Gagnon v. Carpelli,

411 U.S. 778 (1973).

Thus, an indigent defendant has an absolute right to

appointed counsel in proceedings where imprisonment is

a direct possibility; where imprisonment is an indirect

possibility, whether he has such a right will be decided

on a case-by-case basis.

B. The right of collateral attack.

This Court recognized in Burgett v. Texas, 289 U.S. 109

(1967), a right of collateral attack at a sentencing proceed-

ing on a prior conviction offered to enhance a later con-

viction on the ground defendant did not have or waive

counsel during proceedings in the prior conviction. “To

permit use of such a tainted [uncounseled] prior convic-

tion [of an indigent for a felony] for sentence enhance-

ment would undermine the principle of Gideon.”

(Emphasis added.) Id. at 115. “Erosion of the Gideon prin-

ciple can be prevented here only by affirming the judg-

ment .. . remanding this case to the trial court for

reconsideration of the [defendant’s] sentence.” United

States v. Tucker, 404 U.S. 443, 449 (1972).

An uncounseled misdemeanor conviction valid

under Scott is also valid when used to enhance punish-

ment at a subsequent conviction. Nichols v. United States,

511 U.S. __, 128 L.Ed.2d 745, 755, 114 S.Ct. 1921 (1994).

“Enhancement statutes, whether in the nature of criminal

history provisions such as those contained in the Sentenc-

ing Guidelines, or recidivist statutes which are common-

place in state criminal laws, do not change the penalty

imposed for the earlier conviction. .. . ‘This Court

consistently has sustained repeat-offender laws as

penalizing only the last offense committed by the defen-

dant.’” Id. at 128 L.Ed.2d at 754.

In Nichols the Court found the petitioner, consistent

with due process, could have been sentenced more

severely based simply on evidence of the underlying

conduct which gave rise to the previous offense. Id. (That

is essentially what occurred in the present case where

evidence of Defendant’s paternity and duty to support

was introduced without objection by testimony of the

mothers on both direct and cross examination.)

Thus, where an indigent defendant is convicted in a

criminal proceeding where he has a right to appointed

counsel but does not have it or voluntarily waives it, that

right will be enforced by suppressing the use of that

uncounseled conviction to enhance the penalty for a sub-

sequent conviction. If the uncounseled conviction is

admitted into evidence, the remedy is to remand for

resentencing on the later conviction, not to reverse either

conviction.

C. The right of collateral attack is limited to sen-

tencing proceedings where a prior conviction is

offered to enhance the penalty for a subsequent

conviction.

In Custis, this Court continued to uphold the right of

a defendant to challenge at sentencing a prior conviction

tendered for enhancement of a subsequent conviction,

but only on the ground that the defendant did not have

counsel or waive it during proceedings in the prior con-

viction. Id. at 128 L.Ed.2d at 528. It cited the historical

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roots for such a challenge. Id. at 128 L.Ed.2d at 526-27. It

refused to extend the right of such collateral attacks to

other grounds. Id. at 528. It cited the need for finality of

judgments and difficulties in administration in a proceed-

ing that has an independent purpose other than to over-

turn the prior judgment. Id. at 528-29.

By challenging the previous conviction, the

defendant is asking a district court “to deprive

[the] [state court judgment] of [its] normal force

and effect in a proceeding that hals] an inde-

pendent purpose other than to overturn the

prior judgmenIit].”

(Emphasis added; insertions by the Court.) Id.

The provision that a court may not count a

conviction “which has been. . . set aside”

creates a clear negative implication that courts

may count a conviction that has not been set

aside.

Id. at 525. This Court then noted other forums were

available for attacking the sentences offered for enhance-

ment on other grounds. Id. at 529. Those other remedies

must be used to set aside the prior convictions before

they can no longer be used to enhance a sentence. Id.

Thus, this Court in Custis let it be known there are

limits to collateral attacks as a method of enforcing an

indigent defendant’s right to counsel. The same consider-

ations militate against extending beyond enhancement

hearings the right collaterally to attack an uncounseled

conviction.

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D. The Nebraska Supreme Court extended collateral

attacks beyond the limits recognized by this

Court.

As a means of enforcing the right to counsel in the

Sixth Amendment, this Court has held evidence of prior

uncounseled convictions is inadmissible at sentencing

proceedings to enhance the penalty of a subsequent

crime. In Custis this Court examined whether prior con-

victions in state proceedings at which defendant claimed

he had had ineffective assistance of counsel could be

admitted at a sentencing hearing to enhance a subsequent

conviction in federal court. This Court refused to extend

the exclusionary rule applied in the case of uncounseled

prior convictions to other situations unless the prior con-

viction had been set aside in another forum.

When the Nebraska Supreme Court in Carroll held an

indigent defendant has an absolute right to be repre-

sented by counsel in state-initiated paternity proceedings,

one reason it gave was that even though a defendant's

physical liberty is not immediately at risk in such a pro-

ceeding, criminal sanctions for nonsupport can attach

later under Neb. Rev. Stat. § 28-706(1). Id. at 578. “In

addition ..., a determination of paternity in a state-

initiated paternity suit would be res judicata and there-

fore not open to attack in a later proceeding involving

collateral issues such as nonpayment of support.” Id.

Carroll was a direct appeal from a determination of

paternity made in a civil proceeding when the record did

not show the indigent defendant was represented by

counsel or waived counsel. That direct appeal was the

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appropriate forum for challenging an uncounseled pater-

nity proceeding.

However, the Defendant in the present case did not

avail himself of that remedy. Instead, several years after

the determinations of paternity and orders of support

were entered against him in civil proceedings where the

record did not show he had counsel or was advised of his

right to counsel, he now claims the constitution therefore

bars the use of those orders in the criminal proceeding

brought to enforce them. The district court overruled his

objections and received the final judgments in the pater-

nity proceedings as evidence of an element of the crime.

A jury found Yelli guilty as charged and the Defendant

was convicted. In his direct appeal to the Nebraska Court

of Appeals from that conviction, Yelli claimed only that

the trial court had erred in admitting evidence from the

past civil paternity actions in which he either did not

have an attorney or waive the right to an attorney. That

court was persuaded by Yelli’s analogy to enhancement

hearings and found the evidence inadmissible.

The Nebraska Supreme Court sustained the State’s peti-

tion for further review. In its opinion issued after that review

it declared “a mere challenge to the admissibility of a prior

judgment as evidence in a subsequent trial does not consti-

tute an attack on the validity of the prior judgment” and

concluded Yelli had not collaterally attacked the prior judg-

ments but “simply objected to their admissibility as evidence

of the essential elements of the criminal nonsupport charges

filed against him.” State v. Yelli, 247 Neb. 785, 789, 530

N.W.2d 250 (1995). It found “unreliable” and, therefore,

inadmissible a judgment in a state-initiated paternity pro-

ceeding in which the record did not disclose that

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the defendant had counsel or waived it. Id. at 792-95. It

affirmed the judgment of the Nebraska Court of Appeals

finding it was error to admit the judgment in that pater-

nity proceeding into evidence during a trial for criminal

nonsupport for violating a court order of support. Id. at

796. (Appendix at App. 16.)

Notwithstanding the disclaimer of the Nebraska

Supreme Court that it was not allowing Yelli collaterally

to attack the prior orders in the state-initiated paternity

actions, the distinction it drew was one without a differ-

ence. For all practical purposes there remained no way to

enforce those prior judgments. The Court itself recog-

nized that when it ordered the judgment not merely

vacated, but the case dismissed.

Contrary to Custis, the Nebraska Supreme Court has

permitted Yelli to attack prior civil orders offered as

evidence in a criminal action having an independent pur-

pose other than the overturning of those prior judgments.

Contrary to Custis the Nebraska Supreme Court has

allowed Yelli to attack those prior orders in an action

other than a sentencing proceeding in which the prior

judgments were offered to enhance the penalties in a

subsequent conviction. Contrary to Custis the Nebraska

Supreme Court has allowed Yelli to challenge final orders

that had not been set aside in another proper forum and

the time for doing so has long since passed.

Custis is well-grounded in prior holdings of this

Court and has signaled an intention not to expand the

grounds or proceedings in which uncounseled convic-

tions can be attacked. Thus, the decision of the Nebraska

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Supreme Court in the present case is inconsistent with

Custis and decisions of this Court.

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CONCLUSION

The State of Nebraska urges this Court to grant its

petition for a writ of certiorari to the Nebraska Supreme

Court because it has decided a federal question in a way

that conflicts with applicable decisions of this Court.

Respectfully submitted,

Don STENBERG

Attorney General

MariLyn B. HutTCHINSON

Assistant Attorney General

Counsel of Record

P.O. Box 98920

Lincoln, Nebraska 68509-8920

Tel: (402) 471-2682

App. 1

STATE OF NEBRASKA, APPELLEE, V. JOHN W. YELLI, APPELLANT.

moe}

Filed April 7, 1995, No. S-94-206.

1. Paternity: Proof. In a civil action, only a prepon-

derance of the evidence is necessary to sustain the

establishment of paternity.

2. Criminal Law: Proof. The burden in a criminal pro-

ceeding is to produce proof beyond a reasonable

doubt of every element of a charged offense.

3. Res Judicata: Collateral Estoppel: Proof. The doc-

trines of res judicata and collateral estoppel are not

applicable when the burden of persuasion is differ-

ent 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 par-

ent’s conduct may be grounds for a juvenile court to

acquire jurisdiction notwithstanding that the parent

was acquitted of a criminal charge for conduct detri-

mental 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.

App. 2

8. Due Process: Right to Counsel: Paternity. Both fed-

eral 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 defen-

dant’s opportunity for counsel, an appellate court

may not presume that such rights were respected.

10. Right to Counsel: Paternity: Criminal Law: Evi-

dence. 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 princi-

pal 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 Dou-

ble Jeopardy Clauses of the federal and state Consti-

tutions 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 neces-

sitated because the evidence was legally insufficient

to sustain the conviction.

Petition for further review from the Nebraska Court

of Appeals, CONNOLLY, IRwin, and MILLer-LerMAN, Judges,

on appeal thereto from the District Court for Holt County,

App. 3

WituiaM Casset, Judge. Judgment of Court of Appeals

affirmed as modified.

John Jedlicka, Holt County Public Defender, for

appellant.

Don Stenberg, Attorney General, and Marilyn B.

Hutchinson for appellee.

Wuite, C.J., Caporace, FAHRNBRUCH, LANPHIER, and

WRIGHT, JJ.

CAPORALE, J.

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 speci-

fically, the State claims that Yelli failed to make the sup-

port 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 show-

ing 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,

App. 4

asserting, in summary, that the Court of Appeals erro-

neously (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.

Il. 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 inde- |

pendent of those of the inferior courts. See Jindra v.

Clayton, ante p. 597, __ N.W.2d __. (1995).

Ill. 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

ae Te N

App. 5

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 inten-

tionally fails, refuses, or neglects to provide proper sup-

port 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 misde-

meanor, § 28-706(6).

1. Apbmissisitity or Prior ADIUDICATIONS

In the context of the charges in this case, the require-

ment 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 direct-

ing 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.

App. 6

Clearly, collateral attack on a previous judgment is imper-

missible unless the attack is grounded upon lack of juris-

diction over the parties or subject matter. VonSeggern v.

Willman, 244 Neb. 565, 508 N.W.2d 261 (1993); In re Inter-

est 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 con-

stitute 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. There-

fore, Yelli has not collaterally attacked the prior adjudica-

tions; he has simply objected to their admissibility as

evidence of the essential elements of the criminal nonsup-

port charges filed against him.

(b) No Issue or Claim Preclusion

With such distinction in mind, it is necessary to con-

sider whether a prior civil adjudication of paternity and

concurrent order of support are admissible in a subse-

quent criminal nonsupport trial as evidence of the ele-

ments of the criminal offense.

App. 7

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, ante p.

167, 525 N.W.2d 620 (1995).

Traditionally, judgments have been regarded as hear-

say 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

{ 803(22)(01] (1995). Courts had therefore been unwilling

to admit prior judgments into evidence. McCormick on

Evidence § 298 (John W. Strong 4th ed. 1992). As a conse-

quence, doctrines of claim and issue preclusion, res judi-

cata, and collateral estoppel have developed, which allow

for the admission of prior judgments in a subsequent

proceeding.

However, the doctrines of res judicata and collateral

estoppel are not applicable when the burden of persua-

sion is different in the subsequent proceeding. See 18

Charles A. Wright et al., Federal Practice and Procedure

§ 4422 (1981). Consequently, 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

App. 8

action that requires proof of the same issue by a higher

standard. Id.

Restatement (Second) of Judgments § 28 at 273 (1982)

provides:

Although an issue is actually litigated and

determined by a valid and final judgment, and

the determination is essential to the judgment,

relitigation of the issue in a subsequent action

between the parties is not precluded in the fol-

lowing circumstances:

ae

(4) The party against whom preclusion is

sought had a significantly heavier burden of

persuasion with respect to the issue in the initial

action than in the subsequent action; the burden

has shifted to his adversary; or the adversary

has a significantly heavier burden than he had

in the first action.

To apply issue preclusion in the cases described in

subsection (4) of the Restatement would be to hold, in

effect, that the losing party in the first action would also

have lost had a significantly different burden been

imposed. The Restatement, supra, comment f. While there

may be many occasions when such a holding would be

correct, there are many others in which the allocation and

weight of the burden of persuasion (or burden of proof)

are critical in determining who should prevail. Id. Since

the process by which the issue was adjudicated cannot be

reconstructed on the basis of a new and different burden,

preclusive effect is properly denied. Id. See, Grogan v.

Garner, 498 U.S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991) (a

judgment for fraud won by preponderance of evidence

App. 9

standard would not support preclusion in proceedings to

establish nondischargeability if standard in subsequent

bankruptcy proceedings required proof by clear and con-

vincing evidence): In re Braen, 900 F.2d 621 (3d Cir. 1990),

cert. denied 498 U.S. 1066, 111 S. Ct. 782, 112 L. Ed. 2d 845

(1991) (issue preclusion not available if state jury finding

of malicious intent based on preponderance of evidence

rested on lower standard of proof than judgment creditor

must meet in establishing malice to avoid discharge of

debt in bankruptcy); General Dynamics Corp. v. American

Tel. & Tel. Co., 650 F. Supp. 1274 (N.D. Ill. 1986) (changes

in burden of proof may defeat collateral estoppel).

Thus, we have held that 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 con-

cludes no issues in a later civil action. State ex rel. Douglas

v. Morrow, 216 Neb. 317, 343 N.W.2d 903 (1984). Similarly,

in In re Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905

(1992), we determined that because of the different stan-

dards of proof, 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.

Therefore, the doctrines of res judicata and collateral

estoppel are not applicable as bases for the admission of

prior civil judgments in a subsequent criminal trial. Spec-

ifically, the judgment in a civil paternity action is not

binding under the doctrines of res judicata or collateral

estoppel in a subsequent criminal case. Nordgren v. Mit-

chell, 716 F.2d 1335 (10th Cir. 1983).

App. 10

However, as suggested in Carroll v. Moore, 228 Neb.

561, 423 N.W.2d 757 (1988), cert. denied 488 U.S. 1019, 109

S. Ct. 817, 102 L. Ed. 2d 807 (1989), because the burdens

of proof would be the same, a judgment in a civil pater-

nity adjudication is res judicata as between the same

parties in a subsequent civil action such as a support

modification proceeding. See, DeVaux v. DeVaux, 245 Neb.

611, 514 N.W.2d 640 (1994); Callison v. Naylor, 108 N.M.

674, 777 P.2d 913 (N.M. App. 1989); Spindlow v. Spindlow,

512 So. 2d 918 (Ala. App. 1987), cert. denied 512 So. 2d 921;

State ex rel. Mart v. Mart, 380 N.W.2d 604 (Minn. App.

1986); Hackley v. Hackley, 426 Mich. 582, 395 N.W.2d 906

(1986); In re Marriage of Detert, 391 N.W.2d 707 (lowa App.

1986); McCrary v. McCrary, 408 So. 2d 523 (Ala. App.

1981).

(c) Not Otherwise Reliable

Therefore, we must determine whether the prior civil

adjudications are admissible in this instance notwith-

standing that the doctrines of res judicata or collateral

estoppel do not apply.

Although a judgment is technically hearsay, for

which no specific exception is provided, courts have

nonetheless admitted judgments as evidence in subse-

quent proceedings when the prior judgment possessed

the evidentiary reliability that the hearsay rule seeks to

promote. See Eagle, etc., Ins. Co. v. Heller, 149 Va. 82, 140

S.E. 314 (1927) (prior criminal conviction for arson admis-

sible in subsequent civil action to determine whether

insured could recover under fire insurance policy). See,

also, Williams v. Bennett, 689 F.2d 1370 (8th Cir. 1982), cert.

App. 11

denied 464 U.S. 932, 104 S. Ct. 335, 78 L. Ed. 2d 305 (1983);

Indiana State Highway Commission v. Rickert, 425 N.E.2d

620 (Ind. 1981).

The hearsay rule is directed against the danger that

evidence which is untested by the traditional conditions

present when a witness testifies at trial will be unreliable

because faults in the perception, memory, and narration

of the declarant will not be exposed. 4 Jack B. Weinstein

and Margaret A. Berger, Weinstein’s Evidence { 800[01]

(1995). Historically, three conditions are believed to cause

the witnesses to be accurate and to expose inaccuracies in

perception, memory, or narration when a witness testifies

at trial: the oath, personal presence at the trial, and cross-

examination. Id.; McCormick on Evidence § 245 (John W.

Strong 4th ed. 1992).

When these conditions are not met, the traditional

indicia of reliability are lacking, and such evidence is

inadmissible unless there are equivalent guarantees of

trustworthiness. Neb. Evid. R. 803(22), Neb. Rev. Stat.

§ 27-803(22) (Reissue 1989). See, In re Estate of Schoch, 209

Neb. 812, 311 N.W.2d 903 (1981) (reliability of witness’

testimony that hearsay statement was made not to be

considered in deciding admissibility; consideration is cir-

cumstantial guarantees of trustworthiness of statement

being reported); United States v. American Tel. & Tel. Co.,

498 F. Supp. 353 (D.C. 1980) (rationale for admissibility of

factual findings contained in public records is their fun-

damental trustworthiness); Frazier v. Continental Oil Co.,

568 F.2d 378 (5th Cir. 1978) (dangers inherent in hearsay

testimony can be obviated by requirement that such state-

ments be trustworthy and necessary); Sabatino v. Curtiss

National Bank of Miami Springs, 415 F.2d 632 (5th Cir.

App. 12

1969), cert. denied 396 U.S. 1057, 90 S. Ct. 750, 24 L. Ed. 2d

752 (1970) (evidence must be necessary and exhibit intrin-

sic probability of trustworthiness); Mid-City Bank & Trust

Co. v. Reading Co., 3 F.R.D. 320 (D.N.J. 1944) (rules of

evidence designed to obtain truth and intended to

exclude unreliable testimony).

Typically, the circumstances surrounding a civil adju-

dication support the reliability of the judgment. There-

fore, we have admitted evidence concerning prior civil

adjudications in subsequent criminal proceedings even

though such prior judgments were not received as con-

clusive proof of the issue in question. Evidence of prior

civil adjudications has been admitted in a subsequent

criminal nonsupport proceeding to establish the defen-

dant’s obligation to support the child. State v. Menuey, 239

Neb. 513, 476 N.W.2d 846 (1991); State v. Beck, 238 Neb.

449, 471 N.W.2d 128 (1991); State v. Bright, 238 Neb. 348,

470 N.W.2d 181 (1991); State v. Meyer, 236 Neb. 253, 460

N.W.2d 656 (1990); State v. Eichelberger, 227 Neb. 545, 418

N.W.2d 580 (1988); State v. McGee, 221 Neb. 557, 378

N.W.2d 674 (1985); State v. McKichan, 219 Neb. 560, 364

N.W.2d 47 (1985); State v. Reuter, 216 Neb. 325, 343

N.W.2d 907 (1984); State v. Munn, 212 Neb. 265, 322

N.W.2d 429 (1982); State v. Englehaupt, 210 Neb. 182, 313

N.W.2d 437 (1981).

Similarly, other jurisdictions have determined that

evidence of a prior civil adjudication of paternity is

admissible against the defendant in a subsequent crimi-

nal nonsupport proceeding. However, in such jurisdic-

tions the defendant is not estopped from denying

paternity in the subsequent criminal proceeding. Thus,

App. 13

the prior civil adjudications are admitted as nonconclu-

sive evidence of the defendant’s support obligation. See,

State v. Hoy, 742 S.W.2d 206 (Mo. App. 1987) (due process

violated in criminal nonsupport action when court denied

defendant’s pretrial request for blood tests to contest

paternity due to preclusive effect given to civil decree of

dissolution); County of El Dorado v. Schneider, 191 Cal.

App. 3d 1263, 237 Cal. Rptr. 51 (1987) (prior adjudication

of paternity would not allow trial court to withhold ques-

tion of paternity from jury); Patterson v. Municipal Court,

232 Cal. App. 2d 289, 42 Cal. Rptr. 769 (1965) (interlocu-

tory divorce decree determining husband was father of

child not res judicata against husband in subsequent

prosecution for nonsupport).

However, in the present case, the prior paternity

adjudications lack reliability because they do not affirma-

tively show that Yelli was represented by or waived his

right to counsel. Recognizing the risk of error should an

indigent paternity defendant go unrepresented, that

counsel was necessary to inform the defendant of his

right to a jury trial as well as his right to blood testing,

and that the use of scientific evidence involved in blood

testing contributed to the complexity of the litigation and

the risk of error when the defendant was unassisted, we,

in Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757 (1988),

cert. denied 488 U.S. 1019, 109 S. Ct. 817, 102 L. Ed. 2d 807

(1989), concluded that both federal and state due process

dictate that an indigent defendant in a state-assisted

paternity action has the right to the services of appointed

counsel.

Where a record is silent as to a defendant's oppor-

tunity for counsel, an appellate court may not presume

App. 14

that such rights were respected. State v. Ristau, 245 Neb.

52, 511 N.W.2d 83 (1994); State v. Smith, 213 Neb. 446, 329

N.W.2d 564 (1983).

Since the record in the prior paternity adjudications

is silent, we cannot assume that Yelli was represented by

or waived his right to counsel in the prior paternity

proceedings. When a paternity defendant is denied the

opportunity for the assistance of counsel in a state-initi-

ated paternity proceeding, the risk of error is substantial.

Such an uncounseled paternity adjudication lacks the

circumstantial guarantees of trustworthiness that other

judgments possess. Therefore, a civil paternity adjudica-

tion 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 pro-

ceeding.

It necessarily follows therefrom that the adjudica-

tions in the prior civil paternity actions should not have

been received in evidence in this proceeding, and the

mothers should not have been permitted to testify con-

cerning them. There is thus no merit to the State’s first

assignment of error.

2. SUFFICIENCY OF OTHER EVIDENCE

Next, the State urges that even without proof of the

prior determinations of paternity and orders of support,

there existed sufficient evidence to support the jury’s

verdict. However, that contention overlooks that exclud-

ing any evidence of the prior adjudications, the record

consists of nothing more than the uncorroborated testi-

mony of each minor’s mother that Yelli was the father. A

App. 15

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.

§ 43-1412. See, Wade v. Hicks, 191 Neb. 847, 218 N.W.2d

222 (1974); Lockman v. Fulton, 162 Neb. 439, 76 N.W.2d 452

(1956); State ex rel. Klostermeier v. Klostermeier, 161 Neb.

247, 72 N.W.2d 848 (1955). Here, there was nothing which

corroborated the mothers’ bald assertions of paternity;

the mothers’ testimony is thus insufficient to establish

paternity and the resulting obligation to pay.

As a consequence, there was a complete failure of

proof to support the charges against Yelli, and there is no

merit to the State’s second assignment of error.

3. VACATION OF JUDGMENT

The State reads the judgment of the Court of Appeals

to mean that the within cause has been dismissed.

Although it is not entirely clear to us that the mere

vacation of the district court’s judgment achieves that

end, we determine that such is indeed the result which

must obtain.

It is clear that the Double Jeopardy Clauses of the

federal and state Constitutions forbid a second trial for

the purpose of affording the prosecution another oppor-

tunity to supply evidence which it failed to muster in the

first proceeding. Burks v. United States, 437 US. 1, 98 S.

Ct. 2141, 57 L. Ed. 2d 1 (1978); State v. Bostwick, 222 Neb.

631, 385 N.W.2d 906 (1986). Thus, while the Double Jeop-

ardy Clauses do not protect against a second prosecution

App. 16

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. Burks v. United States, supra; Palmer v.

Grammer, 863 F.2d 588 (8th Cir. 1988), appeal after remand,

Palmer v. Clarke, 961 F.2d 771 (8th Cir. 1992); State v. Lenz,

227 Neb. 692, 419 N.W.2d 670 (1988); State v. Palmer, 224

Neb. 282, 399 N.W.2d 706 (1986), cert. denied 484 U.S. 872,

108 S. Ct. 206 98 L. Ed. 2d 157 (1987).

The third and last of the State’s assignments of error

is therefore also meritless.

V. JUDGMENT

Accordingly, we modify the judgment of the Court of

Appeals as hereinafter stated and as thus modified affirm

it; the cause is remanded to the Court of Appeals with the

direction that it reverse the judgment of the district court

and remand the cause to that court with the direction that

it dismiss the within action.

AFFIRMED AS MODIFIED.

CONNOLLY, J., not participating.

————————————ee—eeeeeeeeeeeeeaeeaeaeaeEeEeEeEeEeEeEeee ee ee ee

App. 17

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 State Capitol Building

Lincoln, Nebraska 68509

(402) 471-3731

December 21, 1994

Marilyn B. Hutchinson

ATTORNEY GENERAL’S OFFICE

2115 State Capitol

Lincoln, NE 68509

IN CASE OF: S-94-0206, State v. John W. Yelli

Pet Appellee for Further Review & Brf filed 12/01/94

has been reviewed by the court and the following order

entered:

Petition for further review sustained; case to appear on

the next proposed call of the Nebraska Supreme Court.

Parties ordered to supply the court with 7 additional

copies of original briefs, petitions for further review, and

responses thereto previously filed. Any further briefing

pursuant to Supreme Court Rule 2G left to the discretion

of the parties.

Respectfully,

CLERK OF THE SUPREME COURT

AND COURT OF APPEALS

App. 18

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 State Capitol Building

Lincoln, Nebraska 68509

(402) 471-3731

May 17, 1995

Marilyn B. Hutchinson

ATTORNEY GENERAL'S OFFICE

2115 State Capitol

Lincoln, NE 68509

IN CASE OF: S-94-0206, State v. John W. Yelli

Appellee/Motion for Rehearing & Brf filed 04/11/95

has been reviewed by the court and the following order

entered: Motion of appellee for rehearing overruled.

Respectfully,

CLERK OF THE SUPREME COURT

AND COURT OF APPEALS

App. 19

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 State Capitol Building

Lincoln, Nebraska 68509

(402) 471-3731

May 25, 1995

Marilyn B. Hutchinson

ATTORNEY GENERAL'S OFFICE

2115 State Capitol

Lincoln, NE 68509

IN CASE OF: S-94-0206, State v. John W. Yelli

Appe Mot to Recall Mandate filed 05/23/95 has

been reviewed by the court and the following order

entered: Overruled.

Respectfully,

CLERK OF THE SUPREME COURT

AND COURT OF APPEALS

App. 20

STATE OF NEBRASKA, APPELLEE, V. JOHN W. YELLI, APPELLANT.

__N.W.2d___

Filed November 8, 1994. No.A-94-206.

Verdicts: Appeal and Error. 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. Moreover, on such a claim, an

appellate court will not set aside a guilty verdict in a

criminal case where such verdict is supported by

relevant evidence.

Judgments: Appeal and Error. Regarding matters of

law, an appellate court has an obligation to reach a

conclusion independent of that of the trial court in a

judgment under review.

Paternity: Right to Counsel. In a State-initiated

paternity adjudication, the trial court must make an

initial determination regarding whether the defen-

dant is indigent and whether the defendant should be

appointed counsel.

Final Orders: Paternity: Collateral Attack. Collateral

attacks on the final orders of prior paternity adjudica-

tions in subsequent proceedings are not permissible.

Paternity: Right to Counsel. A defendant in a State-

initiated paternity action has an absolute right to be

represented by counsel.

Paternity: Right to Counsel: Waiver: Proof. If the

record does not affirmatively show that the defendant

was represented by or waived his right to counsel in a

prior State-initiated paternity adjudication, then the

same defendant in a subsequent criminal nonsupport

action may object to the use of the prior paternity

adjudication as evidence of paternity.

App. 21

Appeal from the District Court for Holt County:

WituiaM CasseL, Judge. Reversed and vacated.

John Jedlicka, Holt County Public Defender, for

appellant.

Don Stenberg, Attorney General, and Marilyn B.

Hutchinson for appellee.

ConNOLLY, IRWIN, and Mivter-LerMan, Judges.

CONNOLLY, Judge.

John W. Yelli appeals his convictions for criminal

nonsupport on the grounds that the trial court erro-

neously admitted evidence in the form of records from

past paternity cases, in which Yelli was adjudged to be

the father of the two children in question and ordered to

pay child support. Yelli argues that those prior adjudica-

tions should not have been admitted into evidence

because he was not afforded his constitutional right to

counsel in those prior proceedings. We reverse and vacate

Yelli’s convictions. The records of the prior paternity

adjudications should not have been admitted as evidence

to establish his paternity in this criminal nonsupport

action because the records of the prior adjudications do

not affirmatively show that Yelli was informed of his

right to counsel, that Yelli had counsel, or that Yelli

waived counsel.

I. BACKGROUND

John W. Yelli was convicted by a jury on two charges

of criminal nonsupport, a Class IV felony. The first charge

arose from a December 27, 1988, order of the Holt County

District Court in State ex rel. Beauchamp v. Yelli, case No.

App. 22

18619, in which Yelli was adjudicated the father of and

ordered to pay support for his alleged son, DeWayne

Beauchamp. The second charge also arose from an order

of the Holt County District Court, in State ex rel. Sobotka

v. Yelli, case No. 18763, filed April 7, 1989, in which Yelli

was adjudicated the father of and ordered to pay support

for his alleged daughter, Christina R. Sobotka. Both of the

above-referenced cases were State-initiated paternity

actions.

Charges were filed in the instant case because Yelli

failed to meet his child support payment obligations, in

violation of Neb. Rev. Stat. § 28-706 (Reissue 1989). The

child support payments at issue in the instant case arose

from the above-mentioned Holt County District Court

adjudications. Yelli filed a motion in limine, seeking to

prohibit the State from introducing into evidence any

records of those adjudications. As the basis for his motion

in limine, Yelli argued that the court in the prior adjudi-

cations failed to offer him appointed counsel and that he

never waived his constitutional right to counsel. There-

fore, Yelli contends, the orders issued in those cases were

unconstitutional, and any records of those proceedings

should not have been admissible in the instant case. After

a hearing on the motion in limine, the trial court denied

the motion.

At trial, the mother of each child testified that Yelli

was the father of her respective child. The State intro-

duced the records from the prior paternity adjudications

into evidence during the testimony of the mothers, over

Yelli’s objections. The jury was allowed to consider all the

evidence and returned a verdict of guilty on both counts.

App. 23

II. ASSIGNMENT OF ERROR

Yelli’s only assignment of error is that the trial court

erred in admitting evidence from the prior paternity

adjudications, where Yelli did not have counsel and did

not waive his right to counsel.

Ill. STANDARD OF REVIEW

[1,2] 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. Moreover,

on such a claim, an appellate court will not set aside a

guilty verdict in a criminal case where such verdict is

supported by relevant evidence. State v. Dyer, 245 Neb.

385, 513 N.W.2d 316 (1994); State v. Cook, 244 Neb. 751,

509 N.W.2d 200 (1993); State v. White, 244 Neb. 577, 508

N.W.2d 554 (1993). Regarding matters of law, an appellate

court has an obligation to reach a conclusion independent

of that of the trial court in a judgment under review. State

v. Roche, Inc., 246 Neb. 568,.520 N.W.2d 539 (1994); White,

supra.

IV. ANALYSIS

Yelli complains that the records of the prior paternity

adjudications, in which Yelli was found to be the father of

the children in question and ordered to pay child sup-

port, should not have been admitted into evidence in the

instant case because Yelli was not afforded counsel and

did not waive his right to counsel in those prior adjudica-

tions.

App. 24

As the primary basis of support for his argument,

Yelli cites Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757

(1988), cert. denied 488 U.S. 1019, 109 S.Ct. 817, 102 L. Ed.

2d (1989). Carroll was a paternity action in which the

defendant, the purported father of the child in question,

was denied counsel in spite of his indigent status. The

Nebraska Supreme Court in Carroll held that “due pro-

cess requires that an indigent defendant has an absolute

right to court-appointed counsel in state-initiated pater-

nity proceedings.” (Emphasis supplied.) 228 Neb. at 579,

423 N.W.2d at 767. In the instant case, Yelli argues that

Carroll mandates a finding that the prior State-initiated

paternity adjudications involving Yelli were unconstitu-

tionally decided and, therefore, that the records of those

adjudications should be inadmissible in the present

action.

Yelli is correct inasmuch as he argues that Carroll

directs that indigent defendants must be afforded court-

appointed counsel in State-initiated paternity adjudica-

tions. However, Yelli’s arguments require us to determine

two additional issues. First, we must decide whether the

trial court in the prior paternity adjudications had a duty

to affirmatively show on the record that Yelli was

informed of his Carroll rights. Second, we must decide

whether the validity of a paternity adjudication can be

attacked in a subsequent criminal nonsupport proceed-

ing.

App. 25

1. Triat Court’s Duty to INFoRM DEFENDANT OF Car-

ROLL RIGHTS

In the case at bar, there is nothing in the record

indicating that Yelli was indigent, and thus entitled to

court-appointed counsel under Carroll, at the time of the

prior paternity adjudications. Yelli argues that in pater-

nity adjudications, the trial court has a duty to make a

determination regarding the defendant's indigent status

on the record and to determine whether counsel should

be appointed for him. Yelli points to Kennedy v. Wood, 439

N.E.2d 1367 (Ind. App. 1982), which was relied on by the

Carroll court for the following proposition: .

[T]he due process clause demands not only the

appointment of counsel for all indigent pater-

nity defendants, but also that “[b]ecause this

right would be meaningless if such a defendant

did not know of the right, we further hold that

the court must advise the paternity defendant in

this situation of his right to appointed counsel if

he is indigent.”

Carroll, 228 Neb. at 572, 423 N.W.2d at 763-64.

[3] Yelli argues that the cited language supports his

contention that an indigent defendant's absolute right to

counsel in State-initiated paternity actions is insignificant

unless the defendant is advised of his right to counsel.

We agree. In order to make the right to counsel mandated

by Carroll meaningful, we hold that in a State-initiated

paternity adjudication, the trial court must make an ini-

tial determination regarding whether the defendant is

indigent and whether the defendant should be appointed

counsel. See, Kennedy, supra; Rees v. Heimberger, 60 Ohio

App. 3d 45, 573 N.E.2d 189 (1989), cert. denied 494 US.

App. 26

1088 110 S. Ct. 1827, 108 L. Ed. 2d 956 (1990); Rodriguez v.

Rodriguez, 410 Pa. Super. 549, 600 A.2d 589 (1991). The

records of the prior paternity actions in this case reflect

that the trial court in each case did not make any deter-

mination regarding Yelli’s indigent status. Therefore, the

trial court in each case failed to properly inform Yelli of

his right to counsel under Carroll.

2. ATTACKS ON VALIDITY OF PRIOR PATERNITY ADJUDICA-

TIONS

[4] At first blush, Yelli’s argument regarding the

admissibility of the records from the prior paternity adju-

dications in this criminal nonsupport proceeding appears

to be a collateral attack on those prior adjudications.

Collateral attacks on the final orders of prior paternity

adjudications in subsequent proceedings are not permiss-

ible. Carroll, supra.

However, we find Yelli’s analogy to criminal enhan-

cement proceedings persuasive. In order for a defen-

dant’s prior convictions to be used to enhance the

punishment for a subsequent conviction, the record must

affirmatively show that the defendant was either repre-

sented by or waived his right to counsel at the proceed-

ing where the prior conviction was had. Burgett v. Texas,

389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967); State v.

Smith, 213 Neb. 446, 329 N.W.2d 564 (1983). At the enhan-

cement proceeding, the defendant is allowed to object to

the validity of the prior convictions, but only on the

grounds that the defendant was neither represented by

nor had waived his right to counsel, in violation of the

defendant’s right to counsel under the Sixth Amendment.

App. 27

Convictions obtained in violation of the right to counsel

are considered too unreliable to be admitted into evi-

dence in enhancement proceedings. Smith, supra.

[5,6] We hold that the same is true when past State-

initiated paternity adjudications are used as evidence of

paternity in criminal nonsupport proceedings. Under Car-

roll, a defendant in a State-initiated paternity action has

an absolute right to be represented by counsel. If the

record does not affirmatively show that the defendant

was represented by or waived his right to counsel in the

prior State-initiated paternity adjudication, then the same

defendant is a subsequent criminal nonsupport action

may object to the use of the prior paternity adjudication

as evidence of paternity.

Turning to the case at bar, the records of the past

paternity adjudications where Yelli was determined to be

the father of the children in question did not affirma-

tively show that Yelli was represented by or waived his

right to counsel. Yelli properly objected when the State

attempted to introduce the records of the paternity adju-

dications into evidence. Under our holding in this case,

those records were inadmissible to prove that Yelli is the

father of the two children in question in the current

criminal nonsupport proceeding. Had the records of the

prior paternity adjudications not been admitted into evi-

dence, the jury might have acquitted Yelli.

V. CONCLUSION

The records of the paternity adjudications where Yelli

was found to be the father of the children involved in this

App. 28

case should not have been admitted as evidence to estab-

lish his paternity in this criminal nonsupport action,

because the records of the prior adjudications do not

affirmatively show that Yelli was informed of his right to

counsel, that Yelli had counsel, or that Yelli waived coun-

sel.

REVERSED AND VACATED.

App. 29

IN THE DISTRICT COURT OF

HOLT COUNTY, NEBRASKA

THE STATE OF NEBRASKA, ) Case No. 19654

Plaintiff, | JOURNAL

vs. ) (Filed

JOHN W. YELLL | Jan. 14, 1994)

Defendant. )

NOW on this 4th day of January, 1994, this matter

came on to be heard upon the Defendant’s Motion In

Limine filed herein. Thomas P. Herzog, Holt County

Attorney, was present for the State of Nebraska. The

Defendant appeared personally with his Court appointed

attorney, John Jedlicka, Holt County Public Defender. The

Honorable William B. Cassel presided.

An evidentiary hearing was held. Evidence was

adduced and argument was heard. The Court finds that

there is no precedent to extend the guidelines found in

State v. Turner, 186 Neb. 424, 183 N.W.2d 763 (1971); State

v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981); State v.

Kucera, 215 Neb. 337, 338 N.W.2d 443 (1983), and State v.

Prichard, 215 Neb. 488, 339 N.W.2d 748 (1983) to a pater-

nity judgment where the record in the civil paternity case

is silent as to the exercise of the right to counsel provided

in Carrol v. Moore, 228 Neb. 561, 423 N.W. 2d 757 (1988).

Accordingly, the Court overrules and denies the

Defendant’s Motion In Limine.

The Defendant orally moved the Court for permis-

sion to appear in civilian clothes and for an order to the

Holt County Sheriff allowing the Defendant to appear at

App. 30

the jury trial dressed in civilian clothes. There being no

objection by the Plaintiff, said Motion is granted.

App. 31

IN THE DISTRICT COURT OF HOLT COUNTY

THE STATE OF NEBRASKA, Case No. 19654

Plaintiff,

JOHN W. YELLI

)

)

)

vs. )

)

)

Defendant. )

January 4, 1994

[p. 8] THE COURT: Well, essentially the ques-

tion this court faces is whether or not the procedural

requirements of State v. Turner, State v. Tweedy, and State v.

Kucera, as typified by State v. Prichard, which rights are

based upon the U.S. Supreme Court decision in Boykin v.

Alabama, which have to do with guilty pleas, extends to a

paternity [p. 9] judgment. Essentially the same right to

counsel exists in a paternity case, as enunciated in Carroll

v. Moore, as exists in a criminal case. On the other hand, it

is clear that only a void judgment is subject to collateral

attack, and that a judgment entered on an unconstitu-

tional statute is not absolutely void, but voidable only.

Accordingly, the court finds that the right to counsel in

Carroll v. Moore does not preclude the use of a judgment

entered in a civil paternity case on a silent record, not

showing either advisement of the right, waiver of the

right, or any request to exercise the right in a subsequent

criminal case for criminal non-support under Section

28-706(1). Essentially what the defendant is asking the

court to do is to extend the rule of Tweedy, Turner, and

Kucera to paternity judgments, as opposed to guilty pleas,

App. 32

and there being no precedent that I am aware of extend-

ing that line of cases to paternity cases, the court is -

declines to extend that requirement, and accordingly

overrules and denies the Motion in Limine.

Is there anything else that we need to take up this

afternoon?