State v. Smith

a registrable offense. Finally, we conclude that the court did
not impose an excessive sentence.
A ffirmed in pArt, And in pArt vAcAted.
StAte of nebrASkA, Appellee , v.
deniSe m. Smith , AppellAnt.
771 N.W.2d 151
Filed May 26, 2009. 	No. A-08-1013.
1. Ordinances: Minors: Negligence: Proof. The plain language of the Omaha city
ordinance regarding caretaker neglect requires proof by the State that the defend-
ant acted negligently in placing a child in a situation that endangered the child’s
life or physical or mental health.
2. Minors: Negligence: Licenses and Permits. Despite the importance and func-
tion of licensing childcare providers, the failure to be properly licensed is not
negligence per se.
Appeal from the District Court for Douglas County, SAndrA
l. dougherty, Judge, on appeal thereto from the County Court
for Douglas County, lyn v. White, Judge. Judgment of District
Court affirmed in part, and in part reversed.
James W. Knowles, Jr., and Matthew J. Knowles, of Knowles
Law Firm, for appellant.
Paul D. Kratz, Omaha City Attorney, Martin J. Conboy III,
Omaha City Prosecutor, and Kevin J. Slimp for appellee.
irWin, cArlSon, and moore, Judges.
irWin, Judge.
I. INTRODUCTION
Denise M. Smith was charged under Omaha city ordi-
nances with the crimes of caretaker neglect and giving false
information to a police officer for events surrounding the
injury of an infant at Smith’s childcare facility. Smith was
convicted of both offenses in the county court for Douglas
County, Nebraska, and her convictions and sentences were
affirmed by the district court. In this appeal, Smith chal-
lenges the sufficiency of the evidence to support the caretaker
neglect conviction and alleges that the sentences imposed
STATe v. SMITh 	633
Cite as 17 Neb. App. 633
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

were excessive. We find the evidence insufficient to support
the caretaker neglect conviction, and we reverse that convic-
tion and sentence. We affirm the false information conviction
and sentence.
II. BACKGROUND
The events giving rise to this case occurred on or about
March 17, 2008. The events concern injuries sustained by
Dravion Settles, who was then 7 months old. At the time,
Dravion was in daycare at “Acquainted With an Angel” day-
care center. Smith transported Dravion from his home to
Acquainted With an Angel in the mornings and back home in
the evenings.
On 	March 	17, 	2008, 	Smith 	picked 	up 	Dravion 	from
Acquainted With an Angel and then stopped at the daycare
facility Smith owned, “ABC 123” (ABC). Smith had an errand
to run and left Dravion at ABC, along with approximately
eight other children ranging in age from infants to teenagers,
in the care of one adult, Shawnee Allen (Shawnee). According
to Smith’s testimony, when she left to run her errand, Dravion
was being held by Shawnee.
Smith was gone for 45 minutes to an hour, and when she
returned to ABC, “Shawnee had the kids ready” to be trans-
ported to their homes in a van. Smith testified that she did
some brief cleaning up and that “[b]y the time [she] did that,
everybody was in the van already.” Shawnee loaded Dravion in
the van. Smith dropped Dravion off at his home and left.
Dravion’s mother testified that she went out to the van and
picked up Dravion. She testified that there was a cover over
Dravion’s car seat, so she did not observe Dravion when taking
him from the van. She took Dravion into the house, used the
restroom, and then removed the cover from Dravion’s car seat.
When she removed the cover, she discovered that Dravion was
not moving, was not breathing properly, and had a bite mark on
his cheek, as well as bruises under his chin and purple coloring
because of his breathing difficulties. Dravion’s mother called
for medical attention and also called Smith.
Dravion suffered numerous injuries while he was at ABC.
According to the evidence adduced at trial, Dravion suffered
634 	17 NeBRASKA APPeLLATe RePORTS

two broken legs, a broken arm, a bite mark to the face, and
postobstructive pulmonary edema. The injuries were caused by
an 8-year-old child at the daycare.
During the investigation of this case, police officers inter-
viewed Smith on at least three occasions. During those inter-
views, Smith provided inconsistent information to the police
officers. Among the inconsistencies was information about
the number and identity of adults present at ABC while Smith
was on her errand and Dravion was injured. Smith initially
told police officers that both Shawnee and another adult
were present at ABC, but later acknowledged that Shawnee
was the only adult. Smith also acknowledged to police offi-
cers that Shawnee was “not a licensed daycare provider
through ABC.”
The evidence adduced at trial indicates that on March 17,
2008, Shawnee was licensed to work at Acquainted With an
Angel, the daycare center where Dravion was enrolled dur-
ing the day. There also was uncontradicted evidence that
Shawnee was “an excellent provider” who was capable of
watching eight or nine children by herself. There was also
evidence that Smith had taken steps toward having Shawnee
licensed to work at ABC, but that the paperwork had not yet
been completed. Finally, there was evidence that Shawnee
had not yet been authorized to work at ABC “because there’s
a past investigation with the State going on with Shawnee,”
but there was no evidence adduced concerning the subject of
the investigation.
On April 24, 2008, the State filed a criminal complaint in
county court charging Smith with caretaker neglect and provid-
ing false information to law enforcement. Both charges alleged
violations of ordinances of the city of Omaha.
At the conclusion of the trial in the county court, the court
made the following specific findings:
The Court notes that there’s no question that [Smith]
was the owner of this childcare facility. And that she
gave several different versions to the police officer. And
there’s no question that the Court finds her guilty of
false information.
STATe v. SMITh 	635
Cite as 17 Neb. App. 633

With respect to the negligent caretaker neglect . . . the
Court notes that Sergeant Thorson’s testimony was that
this child was in trauma and in critical condition, and
that there were several versions given by [Smith]. But
the thing that was so clear to this Court was that prior
to [Smith’s] leaving on her 60-minute errand, she noticed
this bite mark . . . on the child’s cheek. Sergeant Thorson
testified that . . . Shawnee . . . was holding the minor child
and that [Smith] saw the mark on the cheek.
At this point, a simple check would have revealed the
extent of this minor child’s injuries, and that they were
life-threatening and that that child should have there and
then been transported to a hospital. Instead of checking
further, seeing a bite mark on the cheek, she left the child
. . . for 60 minutes and then transported [the child] back
home and didn’t bother to tell [the child’s] mother about
the bite mark on the cheek or any other injury or the cry-
ing or anything. And it is that very delay that endangered
the child’s life and physical health and the Court finds
[Smith] guilty of negligent minor care.
(emphasis supplied.) The county court sentenced Smith to two
concurrent sentences of 60 days in jail.
On appeal, the district court affirmed the convictions and
sentences. 	The 	district 	court 	specifically 	noted 	that 	“the
County Court’s reference to one aspect of the evidence was
incorrect,” but concluded that there was sufficient evidence
to uphold both convictions beyond a reasonable doubt. This
appeal followed.
III. ASSIGNMeNTS OF eRROR
Smith has assigned two errors on appeal. First, Smith asserts
that there was insufficient evidence to support the caretaker
neglect conviction. Second, Smith asserts that the sentences
imposed were excessive.
IV. ANALYSIS
1. Sufficiency of evidence
Smith first challenges the sufficiency of the evidence to sup-
port the caretaker neglect conviction. We note that Smith has
636 	17 NeBRASKA APPeLLATe RePORTS

not assigned any error or presented any argument challenging
her conviction for providing false information to law enforce-
ment. With respect to the caretaker neglect conviction, Smith
argues that there was no evidence she was present at the time
of the injuries and no evidence that she did or failed to do any-
thing that a reasonable person would have done in this case.
After our review of the record, we agree that the State failed
to adduce evidence indicating that Smith acted negligently in
this case.
[1] The city of Omaha’s ordinance under which Smith was
charged provides: “(1) A person commits caretaker neglect
if he or she negligently causes or permits: . . . . (b) A minor
child to be placed in a situation that endangers his or her life
or physical or mental health[.]” Omaha Mun. Code, ch. 20,
art. IV, § 20-97 (2004). The plain language of this ordinance
requires proof by the State that Smith acted negligently in plac-
ing Dravion in a situation that endangered his life or physical
or mental health.
There is no dispute in this case that Dravion suffered
severe injuries while at ABC. There is no dispute that Smith
owned and operated ABC or that Smith was responsible for
leaving Dravion at ABC in Shawnee’s care. The issue is
whether Smith’s action of leaving Dravion in Shawnee’s care
was negligence.
The State’s argument on appeal amounts to an assertion
that Smith acted negligently because she left Dravion in the
care of an adult who was not licensed to provide daycare at
ABC and who was not an employee of ABC. The uncontra-
dicted evidence at trial, however, indicates that Shawnee was
licensed to provide childcare at the facility Dravion attended
during the day, that Shawnee was an excellent care provider,
and that she had experience working at head Start and other
childcare facilities. There was no evidence adduced to indicate
any reason Smith should have known or predicted that Dravion
would suffer severe injuries or be improperly cared for while
in Shawnee’s care. There was no evidence adduced of any prior
problems with the child who inflicted the injuries. There was
no evidence adduced to indicate that Shawnee has ever failed
STATe v. SMITh 	637
Cite as 17 Neb. App. 633

to provide proper care before or that Smith was aware of any
such failures.
[2] We are aware of no authority, and the State has cited us
to none, that would support a finding that leaving children in
the care of an adult who is not licensed to provide child care
at one facility, but who is licensed to provide care at another
facility, amounts to negligence per se. Indeed, the fact that the
Nebraska state statutes governing the licensing of childcare
centers provide that “[i]f unlicensed child care is occurring in
violation of [state statutes], the person providing the unlicensed
care shall have thirty days to either become licensed or cease
providing unlicensed child care” seems to suggest that despite
the importance and function of licensing childcare providers,
the failure to be properly licensed is not negligence per se.
Neb. Rev. Stat. § 71-1914.01 (Cum. Supp. 2008).
A review of the county court’s findings when convicting
Smith indicates that the county court simply made a factual
finding that is not supported by any evidence in the record.
The county court’s findings, as quoted above in the background
section of this opinion, very clearly indicate that the county
court based the conviction for caretaker neglect entirely on the
county court’s belief that one of the police officers testified
Smith was aware of some injury to Dravion before Smith left
Dravion in Shawnee’s care and that Smith failed to seek medi-
cal attention for Dravion despite that knowledge. The county
court specifically found that it was “that very delay” which
resulted in Dravion’s being placed in a situation injurious to his
life or physical health.
All the evidence adduced at trial, however, indicates Smith
had no such knowledge. Indeed, a review of the evidence
adduced at trial indicates that Dravion was being held by
Shawnee when Smith left and that Smith did not person-
ally have occasion to observe Dravion again upon her return
to ABC or delivery of Dravion to Dravion’s mother. When
Smith returned from her errand, Shawnee already had Dravion
ready to be returned home, in his car seat, with a cover over
it. Shawnee placed Dravion, in this condition, into the van.
When Smith arrived at Dravion’s home, Dravion’s mother took
638 	17 NeBRASKA APPeLLATe RePORTS

Dravion out of the van, still covered and in his car seat, and
took him into the house. There is no evidence that Smith was
aware of any injuries until she received a telephone call from
Dravion’s mother. The district court recognized this error by
the county court, but found that some other unspecified evi-
dence supported the conviction.
Without evidence that Smith knew or should have known of
some reason that Shawnee was incapable of providing adequate
care—or that after Smith returned from her errand, she knew or
should have known of the injuries and sought medical attention
sooner—there is no evidence that Smith did anything unreason-
able or failed to do anything reasonable. In this case, Smith left
Dravion with an adult who, according to the record, was quali-
fied and capable of providing childcare to Dravion. Indeed,
Shawnee was actually employed by and licensed to provide
childcare at the very facility Dravion spent his days. Despite
the fact that Shawnee was not licensed to provide childcare at
ABC, there is no evidence of negligence on behalf of Smith.
Accordingly, we reverse the conviction and sentence for care-
taker neglect.
2. exceSSive SentenceS
Smith also challenges the sentences imposed by the county
court. We have already reversed her conviction and sentence for
caretaker neglect. As such, the only remaining issue is whether
the sentence of 60 days in jail was excessive for providing false
information to law enforcement. We conclude that it is not an
excessive sentence.
The applicable penalty for providing false information, under
the city of Omaha’s ordinances, is a fine not exceeding $500,
imprisonment not exceeding 6 months, or both. See Omaha
Mun. Code, ch. 1, § 1-10 (1980). A sentence imposed within
statutory limits will not be disturbed absent an abuse of discre-
tion. See State v. Wiemer, 15 Neb. App. 260, 725 N.W.2d 416
(2006). In this case, the sentence imposed is well within the
applicable statutory limits and we find no abuse of discretion
by the county court in imposing the sentence. As such, we find
this assignment of error to be without merit.
STATe v. SMITh 	639
Cite as 17 Neb. App. 633

V. CONCLUSION
We find the evidence insufficient to support the county
court’s conviction of Smith for caretaker neglect. We reverse
the conviction and sentence for caretaker neglect. We find
no abuse of discretion concerning the sentence imposed for
providing false information to law enforcement, and Smith
has not challenged her conviction for providing false infor-
mation. We affirm the conviction and sentence for providing
false information.
A ffirmed in pArt, And in pArt reverSed.
lindA hAyneS, perSonAl repreSentAtive of the eStAte of
louiS e. lucAS, deceASed, Appellee , v. mArc dover
And lori dover , AppellAntS.
768 N.W.2d 140
Filed May 26, 2009. 	No. A-08-1209.
1. Rules of Evidence: Hearsay. According to Neb. Rev. Stat. § 27-804 (Reissue
2008), a statement made by an unavailable witness is not excluded by the hear-
say rule if such statement was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest that a reasonable man in his position
would not have made the statement unless he believed it to be true.
2. Words and Phrases. A pecuniary interest is also termed a financial interest.
3. Uniform Commercial Code: Negotiable Instruments: Promissory Notes.
Discharge of a negotiable instrument such as a promissory note is governed by
the Uniform Commercial Code.
4. ____: ____: ____. According to Neb. U.C.C. § 3-604(a) (Reissue 2001), a person
entitled to enforce an instrument, with or without consideration, may discharge
the obligation of a party to pay the instrument (i) by an intentional voluntary act,
such as surrender of the instrument to the party, destruction, mutilation, or can-
cellation of the instrument, cancellation or striking out of the party’s signature, or
the addition of words to the instrument indicating discharge, or (ii) by agreeing
not to sue or otherwise renouncing rights against the party by a signed writing.
5. Judgments: Appeal and Error. A proper result will not be reversed merely
because it was reached for the wrong reason.
Appeal from the District Court for Sarpy County: WilliAm
b. ZASterA, Judge. Affirmed.
Justin W. high, of Sodoro, Daly & Sodoro, for appellants.
640 	17 NeBRASKA APPeLLATe RePORTS