Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/04/2020 09:08 AM CDT




                                                         - 699 -
                             Nebraska Court of Appeals Advance Sheets
                                  28 Nebraska Appellate Reports
                                                 STATE v. HOUSTON
                                                Cite as 28 Neb. App. 699




                                        State of Nebraska, appellee, v.
                                        Shakur M. Houston, appellant.
                                                     ___ N.W.2d ___

                                          Filed August 4, 2020.    No. A-19-851.

                 1. Constitutional Law: Due Process. The determination of whether
                    the procedures afforded an individual comport with the constitutional
                    requirements for procedural due process presents a question of law.
                 2. Appeal and Error. An appellate court resolves questions of law inde-
                    pendently of the lower court’s conclusion.
                 3. Probation and Parole. The revocation of probation is a matter entrusted
                    to the discretion of a trial court.
                 4. Judges: Words and Phrases. A judicial abuse of discretion exists
                    only when the reasons or rulings of a trial judge are clearly untenable,
                    unfairly depriving a litigant of a substantial right and denying a just
                    result in matters submitted for disposition.
                 5. Sentences: Appeal and Error. An appellate court will not disturb a sen-
                    tence imposed within the statutory limits absent an abuse of discretion
                    by the trial court.
                 6. Probation and Parole: Due Process. The minimum due process pro-
                    tections required at a probation revocation hearing are as follows: (1)
                    written notice of the time and place of the hearing; (2) disclosure of
                    evidence; (3) a neutral factfinding body or person, who should not be
                    the officer directly involved in making recommendations; (4) opportu-
                    nity to be heard in person and to present witnesses and documentary
                    evidence; (5) the right to cross-examine adverse witnesses, unless the
                    hearing officer determines that an informant would be subjected to
                    risk of harm if his or her identity were disclosed or unless the officer
                    otherwise specifically finds good cause for not allowing confrontation;
                    and (6) a written statement by the fact finder as to the evidence relied
                    on and the reasons for revoking the conditional liberty. In addition, the
                    parolee or probationer has a right to the assistance of counsel in some
                    circumstances where the parolee’s or probationer’s version of a disputed
                    issue can fairly be represented only by a trained advocate.
                                    - 700 -
          Nebraska Court of Appeals Advance Sheets
               28 Nebraska Appellate Reports
                            STATE v. HOUSTON
                           Cite as 28 Neb. App. 699

 7. Constitutional Law: Probation and Parole: Rules of Evidence. The
    Sixth Amendment right to confrontation and the Nebraska Evidence
    Rules do not apply to probation revocation proceedings.
 8. Probation and Parole: Rules of Evidence. Although the Nebraska
    Evidence Rules do not apply to revocation proceedings, the courts
    nevertheless take guidance from them, and admission of evidence at a
    probation revocation hearing is not limitless.
 9. Probation and Parole: Evidence: Witnesses. Absent a showing of
    good cause, a probationer has the right to confront adverse witnesses
    with personal knowledge of the evidence upon which the termination or
    revocation is based.
10. Probation and Parole: Hearsay. It is inadvisable for a court to rely
    solely on unsubstantiated hearsay to revoke probation.
11. Probation and Parole: Proof. While the revocation of probation is a
    matter entrusted to the discretion of a trial court, unless the probationer
    admits to a violation of a condition of probation, the State must prove
    the violation by clear and convincing evidence.
12. Evidence: Words and Phrases. Clear and convincing evidence means
    that amount of evidence which produces in the trier of fact a firm belief
    or conviction about the existence of a fact to be proved.
13. Probation and Parole: Hearsay: Proof. The sole reliance on hearsay
    evidence in probation hearings, especially when no findings of substan-
    tial reliability are made, is generally considered a failure of proof.

  Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Reversed and remanded for further
proceedings.
   Thomas C. Riley, Douglas County Public Defender, Korey
T. Taylor, and Reilly White, Senior Certified Law Student,
for appellant.
  Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
  Moore, Chief Judge, and Riedmann and Arterburn,
Judges.
   Riedmann, Judge.
                   INTRODUCTION
  Shakur M. Houston appeals from an order of the district
court for Douglas County revoking his probation. Houston
                              - 701 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       STATE v. HOUSTON
                      Cite as 28 Neb. App. 699

asserts that his due process rights were violated during the
revocation hearing, there was insufficient evidence to revoke
his probation, and he received an excessive sentence. Because
we find that Houston’s due process rights were violated, we
reverse the order revoking his probation and remand the cause
for further proceedings.
                        BACKGROUND
    In March 2017, Houston, age 15, pled no contest to one
count of burglary in the district court. He was sentenced to
5 years’ probation. In May 2018, the State filed a motion to
revoke Houston’s probation. It alleged that Houston violated
the terms of his probation by engaging in assaultive conduct,
failing to regularly attend school, testing positive for mari-
juana, failing to report to probation, and failing to make his
whereabouts known to probation for an 11-day period.
    A hearing was held on the State’s revocation motion. The
State adduced testimony from Abby Kossow, Houston’s proba-
tion officer. Kossow testified, over Houston’s objection, that
Houston had been suspended from school on two occasions.
He was suspended on the first occasion for inappropriately
touching a female student and on the second occasion for leav-
ing school during the day and refusing a drug test when he
returned. Kossow also testified that Houston was subjected to
drug testing as part of his probation and that he tested positive
for marijuana on April 25, 2018. Kossow further informed the
court that she was unable to locate Houston from May 12 until
May 23 and that he missed a meeting with the probation office
on May 22.
    Kossow also provided testimony regarding Houston’s
assaultive conduct over Houston’s objections of hearsay, foun-
dation, and the confrontation clause. According to Kossow,
Houston’s mother contacted law enforcement due to an alter-
cation between Houston and his sister on May 12, 2018, and
Houston had kicked in the front door, damaging it. Kossow tes-
tified that she discovered Houston was at the Douglas County
Youth Center (DCYC) on May 23, after he was arrested for
                              - 702 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       STATE v. HOUSTON
                      Cite as 28 Neb. App. 699

the charges stemming from the incident at his mother’s house.
On cross-examination, Kossow admitted that those charges
were later dismissed. She further admitted that she obtained
information about the incident from a police report, Houston’s
mother, and a law enforcement officer.
   Following the hearing, the court sustained the motion, find-
ing that Houston’s underlying behavior necessitated that his
probation be revoked. It determined that Kossow’s hearsay tes-
timony based on conversations with the principal of the school
Houston attended was sufficiently reliable and that it was
Houston’s own actions which led to his being suspended. The
court further found that Houston refused a drug test and failed
to report his whereabouts from May 12 until May 23, 2018.
The court also found that Houston was arrested and placed in
the DCYC for criminal conduct. In August 2019, Houston was
sentenced to 5 to 6 years’ imprisonment for the underlying
offense of burglary. He timely appealed.
                ASSIGNMENTS OF ERROR
   Houston assigns, consolidated and restated, that the district
court erred in (1) violating his due process right to confront
adverse witnesses at the probation revocation hearing, (2) find-
ing clear and convincing evidence he violated his probation
while relying on unreliable and unsubstantiated evidence, and
(3) imposing an excessive sentence.
                  STANDARD OF REVIEW
   [1,2] The determination of whether the procedures afforded
an individual comport with the constitutional requirements
for procedural due process presents a question of law. State v.
Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014). An appellate
court resolves questions of law independently of the lower
court’s conclusion. Id.
   [3,4] The revocation of probation is a matter entrusted to
the discretion of a trial court. Id. A judicial abuse of discre-
tion exists only when the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a substantial
                              - 703 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       STATE v. HOUSTON
                      Cite as 28 Neb. App. 699

right and denying a just result in matters submitted for disposi-
tion. Id.
   [5] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Hunt, 299 Neb. 573, 909 N.W.2d 363
(2018).
                           ANALYSIS
Noncriminal Probation Violations.
   The district court sustained the State’s motion to revoke
Houston’s probation on the following grounds: Houston
engaged in assaultive conduct, failed to regularly attend school,
tested positive for marijuana, failed to report to probation, and
failed to make his whereabouts known to probation for an
11-day period. On appeal, Houston argues that it was improper
to revoke his probation on any basis other than assaultive con-
duct, because the other allegations were noncriminal violations
or substance abuse violations of his probation order for which
he had not served custodial sanctions.
   For a probationer convicted of a felony, revocation pro-
ceedings may only be instituted in response to a substance
abuse or noncriminal violation if the probationer has served
90 days of cumulative custodial sanctions during the prison
term. Neb. Rev. Stat. § 29-2267(3) (Reissue 2016). Houston
asserts, and the State agrees, that he did not receive 90 days of
custodial sanctions for his noncriminal or substance abuse vio-
lations. Thus, the district court abused its discretion in revok-
ing Houston’s probation for failing to regularly attend school,
testing positive for marijuana, failing to report to probation,
and failing to make his whereabouts known to probation for an
11-day period.
Assaultive Conduct.
   The only remaining ground on which the court could have
revoked Houston’s probation is for engaging in assaultive con-
duct. Houston argues that the court violated his due process
rights by admitting hearsay testimony and denying his right to
                              - 704 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       STATE v. HOUSTON
                      Cite as 28 Neb. App. 699

confront adverse witnesses at the revocation hearing. Further,
he asserts that the State failed to present clear and convincing
evidence he engaged in assaultive conduct. We agree.
   [6] Section 29-2267 provides, in relevant part, that during
probation revocation proceedings, the probationer shall have
the right to hear and controvert the evidence against him, to
offer evidence in his defense, and to be represented by coun-
sel. See, also, State v. Johnson, 287 Neb. 190, 842 N.W.2d 63
(2014). Relying on U.S. Supreme Court cases, the Nebraska
Supreme Court has described the minimum due process protec-
tions required at a probation revocation hearing as follows:
      “(1) written notice of the time and place of the hearing;
      (2) disclosure of evidence; (3) a neutral factfinding body
      or person, who should not be the officer directly involved
      in making recommendations; (4) opportunity to be heard
      in person and to present witnesses and documentary evi-
      dence; (5) the right to cross-examine adverse witnesses,
      unless the hearing officer determines that an informant
      would be subjected to risk of harm if his or her identity
      were disclosed or unless the officer otherwise ‘“specifi-
      cally finds good cause for not allowing confrontation”’;
      and (6) a written statement by the fact finder as to the
      evidence relied on and the reasons for revoking the con-
      ditional liberty. In addition, the parolee or probationer
      has a right to the assistance of counsel in some cir-
      cumstances where the parolee’s or probationer’s version
      of a disputed issue can fairly be represented only by a
      trained advocate.”
State v. Johnson, 287 Neb. at 199-200, 842 N.W.2d at 71, quot-
ing State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011).
   [7-10] The Nebraska Supreme Court has clearly stated
that the Sixth Amendment right to confrontation and the
Nebraska Evidence Rules do not apply to probation revoca-
tion proceedings. See State v. Johnson, supra. Although the
Nebraska Evidence Rules do not apply, the courts nevertheless
take guidance from them and the admission of evidence at a
                              - 705 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       STATE v. HOUSTON
                      Cite as 28 Neb. App. 699

probation revocation hearing is not limitless. See id. Absent a
showing of good cause, a probationer has the right to confront
adverse witnesses with personal knowledge of the evidence
upon which the termination or revocation is based. See State
v. Shambley, supra. It is inadvisable for a court to rely solely
on unsubstantiated hearsay to revoke probation. See State v.
Johnson, supra.
   Here, the sole witness at the hearing for Houston’s alleged
assaultive conduct was Kossow. The extent of her testimony
on this issue was that Houston’s mother informed her Houston
engaged in assaultive conduct toward his sister, “something
related to a Gatorade bottle,” and kicked in the front door to
their home to gain entry; she found Houston at the DCYC; and
she reviewed the police report following the incident and had
a conversation with a law enforcement officer. Thus, Kossow
was relying on unsubstantiated hearsay and neither witnesses
nor documents were offered to support her testimony. Prior to
Kossow’s testimony, Houston objected on the grounds that her
testimony was hearsay, lacked foundation, and denied his right
to confront witnesses. The district court overruled his objec-
tions and allowed Kossow to testify.
   The record does not indicate that the district court made a
finding of good cause as to why Houston was not permitted
to confront the law enforcement officers who arrested him
for the assaultive conduct, nor his mother or sister who wit-
nessed his assaultive conduct. Thus, the district court violated
Houston’s due process rights in that he was not permitted to
cross-­examine adverse witnesses with personal knowledge of
his assaultive conduct.
   The State argues that the court did not rely solely on unsub-
stantiated hearsay information, because Houston was able to
cross-examine Kossow about her knowledge of his assaultive
conduct. It further argues that Kossow had personal knowledge
as to when Houston was located at DCYC and the reason for
his detention. We disagree, because although Houston could
cross-examine Kossow about her secondhand knowledge of
                              - 706 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       STATE v. HOUSTON
                      Cite as 28 Neb. App. 699

the assaultive conduct, he could not cross-examine adverse
witnesses with personal knowledge. Furthermore, Kossow’s
knowledge that Houston was at DCYC does not prove his
alleged assaultive conduct and her knowledge of why he was
there was based on hearsay.
   In similar factual circumstances, Nebraska appellate courts
have determined that an individual’s inability to cross-­examine
adverse witnesses with personal knowledge of his or her
alleged wrongdoing was a violation of his or her due proc­
ess rights. In State v. Shambley, 281 Neb. 317, 795 N.W.3d
884 (2011), a drug court participant was removed from the
program following numerous positive drug tests. The partici-
pant’s removal was based in part on a letter from a drug court
coordinator which contained statements from other individuals
detailing the participant’s drug usage, as well as attachments
with reports of positive drug tests. Id. The Supreme Court
reversed the district court’s removal of the participant from
drug court. It determined that even under the flexible stan-
dards of revocation proceedings which allow the consideration
of hearsay evidence, the drug court participant’s due process
rights were violated because “[n]ot a single adverse witness
was available for [the participant] to cross-examine.” Id. at
332, 795 N.W.2d at 896. The Supreme Court further stated
that the district court did not make any findings that there was
good cause to disallow her right to cross-examine adverse wit-
nesses. Id.
   Similarly, in State v. Mosley, 194 Neb. 740, 235 N.W.2d
402 (1975), overruled on other grounds, State v. Kramer, 231
Neb. 437, 436 N.W.2d 524 (1989), the Supreme Court reversed
an order revoking probation after the defendant was alleged
to have robbed a store. At the revocation hearing, the investi-
gating officer related hearsay statements from the store clerk
describing the robbers and a fingerprint left in the store. Id.
The Supreme Court reversed, determining that there was no
finding of good cause for denying the probationer his right to
confront the store clerk. Id.
                               - 707 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                        STATE v. HOUSTON
                       Cite as 28 Neb. App. 699

   Further, in State v. Clark, 8 Neb. App. 525, 598 N.W.2d
765 (1999), this court reversed an order revoking probation
for alleged positive drug tests. At the revocation hearing, the
probation officer testified that he had tested the probationer
for drug use and sent the specimen to a laboratory for analysis,
which indicated the specimen tested positive for marijuana. Id.
The trial court overruled the probationer’s objection that he
had no opportunity to cross-examine the technician who con-
ducted the test. This court held that by denying the probationer
his right to confront the technician who conducted the test,
the trial court denied the probationer’s minimum due process
rights because there was not a finding of good cause for not
allowing confrontation. Id.
   Conversely, in State v. Johnson, 287 Neb. 190, 842 N.W.2d
63 (2014), the Supreme Court affirmed the district court’s
revocation of probation for physical assault based on testimony
from the investigating officers, including statements made to
them by the victim, along with an audio and visual record-
ing of the victim’s interview. The probationer objected to the
statements made by the victim because he was unable to cross-
examine her. Id. The district court overruled the objection,
finding that there was good cause to allow the hearsay state-
ments because the victim was unavailable due to her death and
the statements were corroborated by other evidence. Id. The
Supreme Court affirmed stating that where “the unavailability
of a witness is shown and the court finds indicia of reliability
and corroboration of the hearsay evidence through other evi-
dence, good cause has been shown and the court may rely on
the hearsay evidence in the absence of cross-examination.” Id.
at 201, 842 N.W.2d at 72.
   Here, as iterated above, the district court overruled Houston’s
objection to Kossow’s hearsay testimony and did not make a
finding of good cause as to why he should not be allowed to
confront adverse witnesses. Kossow’s testimony was not cor-
roborated by any other evidence at the hearing. Accordingly,
based on our de novo review of the record, we determine
                              - 708 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       STATE v. HOUSTON
                      Cite as 28 Neb. App. 699

that the district court violated Houston’s due process rights
in ­allowing Kossow’s hearsay testimony. The order must be
reversed and the cause remanded for further hearing, with
instructions that the right of confrontation be allowed unless
the trial court specifically finds good cause shown for a denial.
See, State v. Mosley, supra; State v. Clark, supra.
    [11,12] The only admissible evidence regarding Houston’s
alleged assaultive conduct was Kossow’s testimony that she
discovered him at the DCYC. But there is no admissible evi-
dence before us indicating what led to Houston’s detention,
nor any evidence that Houston engaged in assaultive conduct.
While the revocation of probation is a matter entrusted to the
discretion of a trial court, unless the probationer admits to a
violation of a condition of probation, the State must prove the
violation by clear and convincing evidence. State v. Johnson,
supra. Clear and convincing evidence means that amount of
evidence which produces in the trier of fact a firm belief
or conviction about the existence of a fact to be proved. Id.
Kossow’s testimony that she discovered Houston at the DCYC
is the only firsthand knowledge she had that Houston was
detained, but even that evidence falls short of being clear and
convincing that he engaged in assaultive conduct.
    [13] The State asserts that Kossow’s testimony was suf-
ficient evidence that Houston engaged in assaultive conduct.
However, Kossow’s testimony was based on inadmissible,
unsubstantiated hearsay evidence. The sole reliance on hearsay
evidence in probation hearings, especially when no findings of
substantial reliability are made, is generally considered a fail-
ure of proof. See State v. Shambley, 281 Neb. 317, 795 N.W.2d
884 (2011).
    The State argues that because Houston was arrested and
placed at DCYC, there is sufficient evidence that he was
involved in an assaultive incident. It further contends that the
fact that the charge was dismissed does not negate such a
­finding. The State relies upon State v. Kartman, 192 Neb. 803,
 224 N.W.2d 753 (1975), for the proposition that “‘Where a
                              - 709 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       STATE v. HOUSTON
                      Cite as 28 Neb. App. 699

criminal prosecution has been started based upon the proba-
tioner’s conduct, the probation court need not wait conclusion
of those proceedings in order to revoke probation. If the court
is satisfied that the law has been violated a conviction is not
a prerequisite.’” Brief for appellee at 16. The State claims
that a conviction not yet final may be used to demonstrate
that a probationer has violated the terms of his or her proba-
tion, citing to State v. Sievers, 2 Neb. App. 463, 511 N.W.2d
205 (1994).
   While we agree with the State’s general propositions, the
record before us differs from that in both State v. Kartman,
supra, and State v. Sievers, supra. In Kartman, the officers who
arrested the defendant for the conduct that allegedly violated
his probation testified at the revocation hearing. In Sievers,
the State offered a certified copy of the information charg-
ing the defendant with the conduct that allegedly violated his
probation and a certified copy of the trial court’s docket entry
showing that he had been found guilty of one count contained
in that information. Here, our record does not contain any such
evidence or even a charging document indicating that Houston
was charged with assault.
   Consequently, we find that the State failed to present clear
and convincing evidence demonstrating that Houston engaged
in assaultive conduct and, therefore, violated the terms of his
probation. Thus, the district court abused its discretion in
revoking his probation.
Excessive Sentence.
  Because we find that the court erred in revoking Houston’s
probation, we need not address whether his sentence was
excessive.
                       CONCLUSION
   Houston’s probation was erroneously revoked for non­
crim­inal and substance abuse violations before he received
custodial sanctions, as required by statute. As to the claim
of assault­ive conduct, Houston’s due process rights were
                              - 710 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       STATE v. HOUSTON
                      Cite as 28 Neb. App. 699

violated, in that he was not able to confront adverse wit-
nesses, and the State failed to produce clear and convincing
evidence demonstrating that he engaged in assaultive con-
duct. Therefore, we reverse the district court’s order revoking
Houston’s probation and remand the cause for further pro-
ceedings consistent with this opinion.
                              Reversed and remanded for
                              further proceedings.
