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PRENTICE v. STEEDE

Cite as 28 Neb. App. 423

Harvey G. Prentice and Teresa S. Prentice, 

appellees, v. Desire Steede, also known 

as Desire Staples, appellant.

___ N.W.2d ___

Filed May 19, 2020. No. A-19-1014.

1. Protection Orders: Injunction: Appeal and Error. A protection order 

is analogous to an injunction. Accordingly, the grant or denial of a protection order is reviewed de novo on the record.

2. Criminal Law: Statutes. Nebraska’s stalking and harassment statutes 

are given an objective construction, and the victim’s experience resulting from the perpetrator’s conduct should be assessed on an objective basis.

3. Criminal Law: Judgments. Under Nebraska’s stalking and harassment 

statutes, the inquiry is whether a reasonable victim would be seriously 

terrified, threatened, or intimidated by the perpetrator’s conduct.

4. Pleadings: Trial: Evidence. A prima facie case may be established by 

a form petition and affidavit, but the petition and affidavit cannot be 

considered as evidence until offered and accepted at the trial as such.

5. Protection Orders: Proof. An ex parte order does not relieve the petitioner of the burden to establish by a preponderance of the evidence the 

truth of the facts supporting a protection order.

6. Protection Orders: Pleadings: Evidence. Neb. Rev. Stat. § 28-311.09 

(Reissue 2016) was amended operative January 1, 2020, and now 

provides that the petition and affidavit shall be deemed to have been 

offered into evidence at any show cause hearing, and the petition and 

affidavit shall be admitted into evidence unless specifically excluded by 

the court.

7. Statutes: Time. Procedural amendments to statutes are ordinarily applicable to pending cases, while substantive amendments are not.

8. Statutes: Words and Phrases. A substantive right is one which creates 

a right or remedy that did not previously exist and which, but for the 

creation of the substantive right, would not entitle one to recover. A 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/19/2020 08:08 AM CDT
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Cite as 28 Neb. App. 423

procedural amendment simply changes the method by which an already 

existing right is exercised.

9. Statutes. A substantive law commonly creates duties, rights, and obligations of a party, whereas a procedural law prescribes the means 

and methods through and by which substantive laws are enforced and 

applied.

10. Protection Orders: Pleadings: Evidence: Proof. The statutory amendment to Neb. Rev. Stat. § 28-311.09 (Reissue 2016) affects the substance 

of the claim because it changes the duty and obligation of a petitioner 

to prove his or her claim by offering the petition and affidavit into 

evidence, or otherwise testifying to the contents of such petition and 

affidavit, after which the respondent would then have the opportunity to 

object, cross-examine, or present his or her own case in defense.

Appeal from the District Court for Douglas County: Marlon 

A. Polk, Judge. Reversed and remanded with directions.

James R. Place, of Place Law Office, for appellant.

No appearance for appellees.

Pirtle, Bishop, and Welch, Judges.

Bishop, Judge.

I. INTRODUCTION

Desire Steede, also known known as Desire Staples 

(Desire), appeals from a harassment protection order entered 

by the Douglas County District Court that extended an ex 

parte harassment protection order against her for the protection of Harvey G. Prentice and Teresa S. Prentice until June 3, 

2020. Desire claims there was insufficient evidence to support 

the protection order. Upon our de novo review of the record, 

we reverse, and remand with directions to vacate the protection order.

II. BACKGROUND

1. Petition and Affidavit for 

Ex Parte Harassment Order

On May 31, 2019, pursuant to Neb. Rev. Stat. § 28-311.09 

(Reissue 2016), the Prentices filed a petition and affidavit to 
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Cite as 28 Neb. App. 423

obtain a harassment protection order against Desire for their 

protection. Harvey and Teresa were both named as petitioners 

in the case caption, but only Harvey signed the document. The 

affidavit included the following allegations: On May “24-25,” 

Desire “threatened to do bodily harm and/or directly or indirectly cause or otherwise contract and/or direct other unknown 

persons to terminate the life of Teresa Prentice (see attached 

transcripts).” Five other civil court case numbers and captions were listed in the entry; all captions included the name 

“Staples” and/or the name “Steede,” but none included the 

name “Prentice.” On May “24-27,” Desire “threatened to do 

bodily harm and/or directly or indirectly cause or otherwise 

contract and/or direct other unknown persons to terminate 

the life of Harvey Prentice (see attached transcripts). Rev. 

Harvey Prentice has been referred to by [Desire] as ‘dead man 

preaching’ (see attached documents).” And on May 24, Desire 

“vowed to either directly or indirectly contract with and or 

cause unknown persons or entities to cause the destruction of 

Ebenezer Baptist Church located at [an address on] Fowler 

Ave, Omaha, NE,” and Desire “also made lewd and sexually 

inappropriate comment[s] directed toward Harvey Prentice 25 

May 2019 (see attached documents).”

Attached to the petition and affidavit were several pages 

of screenshots of text messages, most coming from a certain 

cell phone number. There are handwritten notations, in what 

appear to be the same handwriting as the petition and affidavit, next to the text messages. We include a sampling of the 

text messages here. A text message from May 24, 2019, at 

9:26 a.m. reads:

U trying to help that sad excuse of a pile of shit name 

Earl! . . . You didn’t help me get my son back you garbage trash ho!!! Fuk u and your swirvel head husband! 

I will find you and destroy you and I will snatch your 

breath away from you for helping this dog! As far as I 

can see Omari is of no good to me look like his pathetic 

father! U will not see me coming you old bitch!!!!
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A text message from 9:28 a.m. reads, “I will have your broke 

ass church destroyed and leveled to a rubbled pile of dirt bricks 

you Yello ho! Fuck u and die u and Earl!!!!” A text message 

from 9:43 a.m. reads, “I’ll beat yo ass dude!!! . . . [F]uk u and 

die!!!! U and ur ugly ass wife! . . . I will be com to destroy u 

for not helping me!!!” A text message from less than 1 hour 

later reads:

This is Desiree’s mother! Stop contacting my child and 

mind your own business! You will really get hurt meddling in our affairs! Earl is not your concern and Omari 

is not of your concern. Go fuck off! We tried to be nice 

about it all and you and your sorry ass husband blew us 

off! If you step to this I will get you and will waste no 

time watching you bleed out!

The handwritten notations next to that text message read: 

“Never contacted Desiree, Desiree called Harvey on/about Mar 

1, 2019, to see if I knew where Earl lived. Had no contact 

with him for 3-6 mos prior”; and, “Never contacted mother 

or daughter or any member of the Starks family Steed family.” A text message from May 25 at 3:33 a.m. reads, “This 

is Desire[.] Earl is going back to jail for putting his hands on 

me!!! I will be laughing at u and him and when I’m done u wil 

be next!!!! Try me! I came back for Mr. Williams I will come 

back for u too! U will die!” A text message from 1:03 p.m. that 

day reads, “This is Dierra Bish!!!!! . . . Earl ass can’t stop my 

sister from smoking weed and doing what the fuck we wanna 

do! Bitch please! Church is over! And so are u! Bitch u carry 

an expiration date!”

2. Ex Parte Order and 

Request for Hearing

On June 3, 2019, the district court issued a 1-year ex parte 

harassment protection order. Desire was enjoined from imposing any restraint upon the person or liberty of Harvey and 

Teresa; harassing, threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of Harvey and Teresa; 

or telephoning, contacting, or otherwise communicating with 
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Cite as 28 Neb. App. 423

Harvey and Teresa. The order stated that if Desire wished to 

appear and show cause why the order should not remain in 

effect for a period of 1 year, she could return the request for 

hearing form provided.

On July 1, 2019, the same day Desire was served with a 

copy of the ex parte harassment protection order, she filed a 

request for a hearing. The hearing was scheduled for July 29. 

On July 25, Desire filed a resistance to the ex parte harassment 

protection order alleging that the text messages attached to the 

petition and affidavit were not transmitted by her, nor were 

they transmitted on her behalf by other persons. She further 

alleged that the cell phone number appearing on the text messages did not belong to, and had never belonged to, her and 

was not associated with her cell phone. She asked that the ex 

parte harassment protection order be dismissed immediately 

because it was “based on false information.” Desire asked to be 

awarded reasonable attorney fees and court costs.

3. Show Cause Hearing

The show cause hearing took place on July 29, 2019. The 

Prentices appeared pro se, but Desire appeared with counsel. 

No exhibits were offered or received into evidence. After 

Harvey, Teresa, and Desire were sworn in, the district court 

asked the Prentices to help the court understand their connection, if any, to Desire. Harvey stated:

[O]ur connection with her is through her . . . estranged 

husband, Earl Staples. There is an ongoing feud between 

them over the custody of the child. Earl . . . was a keyboard player in my church. . . .

The reason we are here now is because not only as the 

pastor of the church but as trying to be a friend to [Earl], 

to try to help him. I even tried to work with [Desire] and 

her husband . . . to try to get them to talk [about their 

relationship and save their marriage].

. . . Essentially, what happened is, [Desire] called me 

in March, I believe, of this year to find out where Earl 
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was living. I didn’t know. . . . Well, the child was in 

[Earl’s] custody, and he refused to return the child to her 

to do the visits or whatever it was, and I told him that 

was wrong. . . .

Well, essentially, he’s angry at me, and she’s angry at 

me because she thinks that I was hiding [Earl] or I knew 

his whereabouts. I had no idea where — Because he 

moved from our church to some other church, and I lost 

contact with him. . . . He finally contacted me, and he 

said he wanted to come back. I said, Sure, you can come 

back and play for the church. But after all of these text 

messages —

Harvey stated that “the messages threatened me and my wife, 

threatened to burn down the church.” When the court asked who 

received the text messages, Harvey and Teresa said that they 

both received them. The court acknowledged it had reviewed 

the messages. When the court asked why they believed the 

messages came from Desire, both Harvey and Teresa pointed 

out that Desire “stated her name.” Harvey said the messages 

“had to come from her or somebody who knew her,” because 

“[t]here is no other way.” Harvey then said:

And because of this, we’ve had to increase our measures 

of security at our church and our home because we can’t 

take the risk that this person is not — she’s already . . . 

I got a call at 3 o’clock in the morning on a . . . Sunday 

morning, it was Earl. He called me because Desire and 

her uncle and her sister and some other people were at 

his house after him, and he called me. I didn’t know what 

to do. I called the police, because where he was staying, 

I couldn’t get there fast enough.

So her whole thing with me is, she’s angry with Earl, 

and since I was the pastor at the church where he was 

attending and trying [sic] befriend him to help him come 

to grips that you have to share custody of your son with 

the mother . . . she thinks that — or believes that I’m 

her enemy. I need the protection order to stay in place 
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because I can’t take the risk. I’m too old to be out here 

wrestling and fighting with people.

Desire’s counsel stated it was Desire’s position that the cell 

phone number the text messages were sent from was not associated in any way with her. Desire called two law enforcement 

officers who testified that during an investigation, a forensic 

download was done on Desire’s cell phone. Thousands of text 

messages were able to be extracted from her cell phone, as 

well as the contact list; nothing in the extractions related to the 

cell phone number associated with the Prentice matter. During 

the investigation, Earl Staples was asked for his cell phone 

four times, but he refused.

In Desire’s testimony, she denied having another cell phone 

besides the one she provided to law enforcement. Desire 

also denied that she sent, or caused to be sent, text messages 

to the Prentices on May 24, 25, and/or 27, 2019. On crossexamination, Desire expressed her belief that Earl was responsible for the messages.

In addressing the parties, the district court stated:

Here’s the problem, this is an unfortunate situation 

that these people have been put in the middle of this. 

They did not ask for this. I sincerely believe the police 

officers and the conduct of what they did and the dumping of the phones, and that that phone has absolutely 

no evidence that those text messages were sent . . . that 

the . . . cell phone that they extracted from Desire and 

did the download dump of has no connection to this. 

That, to me, has nothing to do with the fact of whether I 

believe that she was part of sending those text messages, 

from whatever number they came from, just not from 

that phone. That would go beyond, I think, reasonable 

comprehension, because I’ve read these text messages. 

They are as outrageous as any text messages I have 

ever read.

The court stated it was keeping the protection order in place in 

favor of the Prentices.
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4. Harassment Protection Order

On July 30, 2019, the district court entered a harassment 

protection order directing that the June 3 ex parte harassment 

protection order was to remain in effect for a period of 1 year 

from that date. Desire’s motion for new trial and/or motion 

to reconsider and set aside the harassment protection order 

was denied.

Desire appeals.

III. ASSIGNMENTS OF ERROR

Desire assigns, restated, that the district court erred by (1) 

determining the petition and affidavit to obtain a harassment 

protection order was sufficient to enter the ex parte order and 

(2) determining the evidence was sufficient to support a harassment protection order.

IV. STANDARD OF REVIEW

[1] A protection order is analogous to an injunction.

Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010). 

Accordingly, the grant or denial of a protection order is 

reviewed de novo on the record. Id.

V. ANALYSIS

1. Applicable Law

[2,3] At all times relevant to the district court proceedings 

below, § 28-311.09 provided in relevant part:

(1) Any victim who has been harassed as defined 

by section 28-311.02 may file a petition and affidavit 

for a harassment protection order . . . . Upon the filing 

of such a petition and affidavit in support thereof, the 

court may issue a harassment protection order without 

bond enjoining the respondent from (a) imposing any 

restraint upon the person or liberty of the petitioner, (b) 

harassing, threatening, assaulting, molesting, attacking, 

or otherwise disturbing the peace of the petitioner, or (c) 

telephoning, contacting, or otherwise communicating with 

the petitioner.
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(2) The petition for a harassment protection order 

shall state the events and dates of acts constituting the 

alleged harassment.

. . . .

(7) Any order issued under subsection (1) of this 

section may be issued ex parte without notice to the 

respondent if it reasonably appears from the specific 

facts shown by affidavit of the petitioner that irreparable 

harm, loss, or damage will result before the matter can be 

heard on notice. . . . If the respondent wishes to appear 

and show cause why the order should not remain in effect 

for a period of one year, he or she shall affix his or her 

current address, telephone number, and signature to the 

form and return it to the clerk of the district court within 

five days after service upon him or her. Upon receipt 

of the request for a show-cause hearing, the court shall 

immediately schedule a show-cause hearing to be held 

within thirty days after the receipt of the request for a 

show-cause hearing and shall notify the petitioner and 

respondent of the hearing date.

The purpose of § 28-311.09, and the definition of certain terms, 

are contained in Neb. Rev. Stat. § 28-311.02 (Reissue 2016), 

which provides in relevant part:

(1) It is the intent of the Legislature to enact laws 

dealing with stalking offenses which will protect victims from being willfully harassed, intentionally terrified, 

threatened, or intimidated by individuals who intentionally follow, detain, stalk, or harass them or impose any 

restraint on their personal liberty and which will not prohibit constitutionally protected activities.

(2) For purposes of sections 28-311.02 to 28-311.05, 

28-311.09, and 28-311.10:

(a) Harass means to engage in a knowing and willful 

course of conduct directed at a specific person which seriously terrifies, threatens, or intimidates the person and 

which serves no legitimate purpose;
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(b) Course of conduct means a pattern of conduct 

composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including 

a series of acts of following, detaining, restraining the 

personal liberty of, or stalking the person or telephoning, 

contacting, or otherwise communicating with the person.

Application of the law governing harassment protection orders 

has been summarized as follows:

“Nebraska’s stalking and harassment statutes are given 

an objective construction and . . . the victim’s experience resulting from the perpetrator’s conduct should be 

assessed on an objective basis. In re Interest of Jeffrey K., 

273 Neb. 239, 728 N.W.2d 606 (2007). Thus, the inquiry 

is whether a reasonable [victim] would be seriously terrified, threatened, or intimidated by the perpetrator’s conduct. Id.”

Richards v. McClure, 290 Neb. 124, 132, 858 N.W.2d 841, 

847 (2015) (quoting Glantz v. Daniel, 21 Neb. App. 89, 837 

N.W.2d 563 (2013)).

[4,5] A prima facie case may be established by a form petition and affidavit. Mahmood v. Mahmud, 279 Neb. 390, 778 

N.W.2d 426 (2010). But the petition and affidavit cannot be 

considered as evidence until offered and accepted at the trial 

as such. Id. The ex parte order does not relieve the petitioner 

of the burden to establish by a preponderance of the evidence 

the truth of the facts supporting a protection order. Id. The 

Nebraska Supreme Court has recognized that “the procedures 

at a show cause hearing might be less elaborate than those 

commonly used at civil trials, but we have concluded that 

‘at a minimum, testimony must be under oath and documents 

must be admitted into evidence before being considered.’” 

Richards v. McClure, 290 Neb. at 132, 858 N.W.2d at 848 

(quoting Mahmood v. Mahmud, supra). Where the evidence 

is insufficient, the appellate courts have reversed and vacated 

harassment protection orders issued by lower courts. Richards 

v. McClure, supra.
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2. Ex Parte Harassment 

Protection Order

Desire argues that the district court erred by granting the 

initial ex parte harassment protection order on June 3, 2019, 

because she contends the facts set forth in the Prentices’ petition and affidavit were insufficient to enter such ex parte order. 

Because we determine the issue is moot, we do not address this 

assignment of error.

A moot case is one which seeks to determine a question 

which does not rest upon existing facts or rights, in which 

the issues presented are no longer alive. State on behalf of 

Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d 

749 (2004).

In State on behalf of Pathammavong v. Pathammavong, 

supra, the mother challenged on appeal the trial court’s order 

granting the father ex parte temporary custody. The Supreme 

Court reasoned that “whether the temporary order was granted 

in error was relevant only from the time it was ordered until 

it was replaced by the order determining [the child’s] permanent custody placement.” Id. at 6, 679 N.W.2d at 754. 

Accordingly, the court concluded the issue was moot and 

declined to address it.

Similarly in the present case, any error in the district court’s 

ex parte harassment protection order filed on June 3, 2019, 

was relevant only until the court filed the harassment protection order on July 30, following the show cause hearing. 

Accordingly, this issue is moot and we need not address 

Desire’s arguments with respect to the ex parte order.

3. Harassment Protection Order

(a) Evidence at Show Cause Hearing

(i) Petition and Affidavit

The Prentices’ petition and affidavit for the harassment protection order was not offered or received into evidence at the 

show cause hearing, and thus could not be considered by the 

district court. See Mahmood v. Mahmud, 279 Neb. 390, 778 
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N.W.2d 426 (2010) (prima facie case may be established by 

form petition and affidavit, but neither will be considered as 

evidence until offered and accepted at trial).

[6-9] We note that during the pendency of this appeal, the 

Legislature amended § 28-311.09 operative January 1, 2020. 

See 2019 Neb. Laws, L.B. 532, § 1. The amended statute 

now provides in relevant part: “The petition and affidavit 

shall be deemed to have been offered into evidence at any 

show-cause hearing. The petition and affidavit shall be admitted into evidence unless specifically excluded by the court.” 

§ 28-311.09(7) (Supp. 2019). In considering whether to apply 

§ 28-311.09(7), as amended, to this case, we note that procedural amendments to statutes are ordinarily applicable to 

pending cases, while substantive amendments are not. See 

In re Guardianship of Carlos D., 300 Neb. 646, 915 N.W.2d 

581 (2018).

This is because a substantive right is one which creates a 

right or remedy that did not previously exist and which, 

but for the creation of the substantive right, would not 

entitle one to recover. . . . A procedural amendment, on 

the other hand, simply changes the method by which an 

already existing right is exercised. . . . Put another way, a 

substantive law commonly creates duties, rights, and obligations of a party, whereas a procedural law prescribes 

the means and methods through and by which substantive 

laws are enforced and applied.

Id. at 656, 915 N.W.2d at 587-88. See, also, Great Northern 

Ins. Co. v. Transit Auth. of Omaha, 305 Neb. 609, 941 N.W.2d 

497 (2020) (statutes covering substantive matters in effect at 

time of transaction or event govern, not later enacted statutes; 

but where amendment to statute was procedural change, it is 

binding upon tribunal upon effective date of amendment).

[10] At issue in this case is whether the Prentices proved 

by a preponderance of the evidence that Desire was harassing 

them. As noted above, a substantive law commonly creates 

duties, rights, and obligations of a party. In re Guardianship 
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of Carlos D., supra. The change to § 28-311.09 affects the 

substance of the harassment claim because it affects the 

duties, rights, and obligations of the parties in that it now 

allows the petition and affidavit to automatically be deemed 

offered and received into evidence, whereas previously, and 

at the time of the lower court proceedings in this case, the 

petition and affidavit had to be verbally offered and received 

into evidence to be considered. In other words, the change 

to § 28-311.09 affects the substance of the claim because it 

changes the duty and obligation of a petitioner, the Prentices 

in this case, to prove his or her claim by offering the petition and affidavit into evidence, or otherwise testifying to 

the contents of such petition and affidavit—something that 

did not happen at the show cause hearing in this case. Had 

the Prentices offered the petition and affidavit into evidence, 

or otherwise testified to the contents therein, the respondent, 

Desire in this case, would then have had the opportunity 

to object, cross-examine, or present his or her own case 

in defense. It would be patently unfair to circumvent the 

respondent’s opportunity to challenge the petitioner or present 

his or her own case by automatically considering the petition 

and affidavit as evidence after the fact.

Therefore, we conclude that the amendment to § 28-311.09 

which was operative on January 1, 2020, was a substantive 

change that was not applicable to this case. Accordingly, under 

the law applicable at the time of this case, the Prentices’ petition and affidavit for the harassment protection order could 

not and cannot be considered as evidence because it was not 

offered or received into evidence at the show cause hearing. See Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 

426 (2010).

(ii) Testimony

No exhibits were offered or received into evidence at the 

show cause hearing; thus, the only evidence comes from 

testimony. The Prentices did not testify in detail about the 
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contents of their petition and affidavit—and the attached text 

messages—which were not otherwise received into evidence. 

The Prentices’ testimony boils down to Harvey’s statement 

that “the messages threatened me and my wife, threatened to 

burn down the church”; the Prentices’ statements that they 

both received the text messages and that Desire “stated her 

name”; and Harvey’s statement that the messages “had to come 

from her or somebody who knew her,” because “[t]here is no 

other way.”

In response, Desire presented testimony from law enforcement officers that thousands of text messages were able to be 

extracted from her cell phone, as well as the contact list, and 

that nothing in the extractions related to the cell phone number associated with the Prentice matter. And in her testimony, 

Desire denied having another cell phone besides the one she 

provided to law enforcement. She also denied that she sent, or 

caused to be sent, text messages to the Prentices on May 24, 

25, and/or 27, 2019. On cross-examination, Desire expressed 

her belief that Earl was responsible for the messages. And law 

enforcement testified that during the investigation, Earl was 

asked for his cell phone four times, but he refused.

(b) Was Evidence Sufficient?

The district court clearly relied on the content of the text 

messages it “reviewed,” but as noted previously, the petition 

and affidavit to which the text messages were attached was not 

offered or received into evidence at the hearing and could not 

be considered.

Upon our de novo review of the record, we find that the 

Prentices’ testimony was not sufficient to prove by a preponderance of the evidence that Desire harassed them. See 

Mahmood v. Mahmud, supra (petitioner has burden to establish by preponderance of evidence truth of facts supporting 

protection order). The definition of “harass” requires a course 

of conduct directed at a specific person which seriously terrifies, threatens, or intimidates the person and which serves no 
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legitimate purpose. See § 28-311.02(2). Here, a claim that text 

messages allegedly sent by Desire “threatened” the Prentices 

and their church was not enough to support the harassment 

protection order. Because the evidence at the show cause hearing was insufficient to support the harassment protection order, 

the ex parte order should not have been extended.

VI. CONCLUSION

Upon our de novo review, we conclude that the district court 

erred in extending the harassment protection order. We therefore reverse the judgment and remand the cause with directions 

to vacate the order.

Reversed and remanded with directions.