# Petition for Writ of Certiorari — Nebraska v. Yelli

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 915

## Text

= 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?

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1658%3A1. Public record. Not legal advice.