State v. Dehning, 296 Neb. 537

Background

Eddie H. Dehning was tried on two counts arising from conduct between Jan. 1, 2011 and Dec. 31, 2013: (1) exploitation of a vulnerable adult (his mother, Cora Bell) and (2) theft by unlawful taking.
Dehning became Cora Bell’s power of attorney in Feb. 2011; medical and lay testimony indicated progressive memory loss/Alzheimer’s beginning by 2011.
Family members and a physician’s assistant testified about Cora Bell’s cognitive decline; bank records showed frequent transfers, ATM/debit use, cash withdrawals, and rent proceeds diverted to Dehning or his accounts.
Dehning testified he had Cora Bell’s consent for transactions and that she had told him her money was his; the jury rejected that testimony.
The jury convicted Dehning on both counts (theft valued at $32,447.28). The court sentenced him to 60 months for exploitation and 5–10 years for theft, to run consecutively and consecutive to a prior sentence.
On appeal Dehning argued (1) insufficient evidence to prove a “vulnerable adult” and to prove theft beyond a reasonable doubt (consent defense), and (2) that his sentences were excessive.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Dehning)	Held
Was there sufficient evidence that Cora Bell was a "vulnerable adult" during the charged period?	Testimony and medical records show substantial mental impairment (Alzheimer’s) and behavioral observations supporting statutory definition.	Cora Bell lived independently until Dec. 2012; thus she was not vulnerable for (all) the charged period.	Affirmed: evidence (lay observations + medical diagnosis) supported finding she was a vulnerable adult.
Was the evidence sufficient to prove theft by unlawful taking despite Dehning’s consent testimony?	Bank records, rent diversion, cash withdrawals, and purchases for Dehning supported intent to benefit himself without entitlement.	Dehning testified Cora Bell consented and gave him her money; consent negates theft.	Affirmed: jury could discredit Dehning’s testimony; consent was rejected and elements were proven beyond a reasonable doubt.
Were the sentences excessive or should probation have been imposed?	Sentencing court considered statutory factors, defendant’s record, demeanor, and risk of reoffense; imprisonment appropriate.	Prior record is minimal; probation would allow restitution and employment.	Affirmed: sentences within statutory limits and not an abuse of discretion.
Did the court err in denying credit for time served (related to consecutive service)?	Sentence ordered consecutive to prior case; no credit due here because defendant was serving time on the other case.	(Argument not pressed on appeal as a primary ground)	Imposed sentence and concurrency rulings left intact; no abuse shown.

Key Cases Cited

State v. McCurry, 891 N.W.2d 663 (Neb. 2017) (standard for reviewing sufficiency of the evidence)
State v. Rakosnik, 849 N.W.2d 538 (Neb. App. 2014) (power of attorney does not immunize theft; evidence can support exploitation conviction)
State v. Stubbs, 562 N.W.2d 547 (Neb. 1997) (distinguishing natural aging from mental impairment for vulnerability)
State v. Fahlk, 524 N.W.2d 39 (Neb. 1994) (consent as a defense to theft)
State v. Stolen, 755 N.W.2d 596 (Neb. 2008) (discussing limits of prior authority)
State v. Draper, 886 N.W.2d 266 (Neb. 2016) (standard for reviewing sentencing for abuse of discretion)