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STATE V. JENNINGS

Cite as 312 Neb. 1020

State of Nebraska, appellee, v. 

Leandre R. Jennings III, appellant.

___ N.W.2d ___

Filed December 2, 2022. No. S-22-185.

1. Postconviction: Proof: Appeal and Error. When a district court denies 

postconviction relief without conducting an evidentiary hearing, an 

appellate court determines de novo whether the petitioner has alleged 

facts that would support the claim and, if so, whether the files and 

records affirmatively show that he or she is entitled to no relief.

2. Postconviction: Records: Appeal and Error. The appellate court does 

not conduct an appeal of a postconviction review sua sponte; as with 

all appeals, the alleged errors of the lower court must be both specifically assigned and specifically argued in the brief of the party asserting 

the errors to be considered by the appellate court. The appellate court 

will not scour the record on appeal to understand unclear arguments or 

find support for broad conclusions.

3. Effectiveness of Counsel: Appeal and Error. With regard to the 

questions of counsel’s performance or prejudice to the defendant as 

part of the two-pronged test articulated in Strickland v. Washington, 

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate 

court reviews such legal determinations independently of the lower 

court’s decision.

4. Postconviction: Constitutional Law: Proof. The district court must 

grant an evidentiary hearing to resolve the claims in a postconviction 

motion when the motion contains factual allegations which, if proved, 

constitute an infringement of the defendant’s rights under the state or 

federal Constitution.

5. Postconviction: Pleadings. The allegations in a motion for postconviction relief must be sufficiently specific for the district court to 

make a preliminary determination as to whether an evidentiary hearing 

is justified.

6. Postconviction: Constitutional Law: Proof. An evidentiary hearing is 

not required on a motion for postconviction relief when (1) the motion 

Nebraska Supreme Court Online Library

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

12/16/2022 08:04 AM CST
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does not contain factual allegations which, if proved, constitute an 

infringement of the movant’s constitutional rights rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or 

law without supporting facts; or (3) the records and files affirmatively 

show that the defendant is entitled to no relief.

7. Jury Instructions: Proof: Appeal and Error. In reviewing a claim of 

prejudice from jury instructions given or refused, the appellant has the 

burden to show that the allegedly improper instruction or the refusal to 

give the requested instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant.

8. Jury Instructions: Appeal and Error. All the jury instructions must 

be read together, and if, taken as a whole, they correctly state the law, 

are not misleading, and adequately cover the issues supported by the 

pleadings and the evidence, there is no prejudicial error necessitating reversal.

9. Postconviction: Appeal and Error. Upon the filing of a motion seeking 

postconviction relief, an appellate court has the obligation to determine 

whether the prisoner is entitled to no relief, in which case the motion is 

dismissed, or, alternatively, conclude that the defendant is entitled to a 

hearing to determine if he or she is entitled to relief.

10. Postconviction: Prosecuting Attorneys: Notice. If a defendant is entitled to an evidentiary hearing on a postconviction motion, the court shall 

cause notice to be served on the county attorney.

11. ____: ____: ____. The State, through its county attorneys, can, and 

often does, participate at earlier points in the postconviction process, 

but is only called upon to take action with respect to a motion once it 

receives notice from the court.

Appeal from the District Court for Douglas County: 

Kimberly Miller Pankonin, Judge. Affirmed.

Leandre R. Jennings III, pro se.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

The appellant, Leandre R. Jennings III, was convicted of 

first degree murder, use of a weapon to commit a felony, and 
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possession of a deadly weapon by a prohibited person. He was 

sentenced to life imprisonment, 30 to 40 years’ imprisonment, 

and 40 to 45 years’ imprisonment, respectively. His convictions 

and sentences were affirmed by this court on direct appeal. 1

Jennings then filed a motion seeking postconviction relief, 

which was denied without an evidentiary hearing. Jennings 

appeals that denial. We affirm.

BACKGROUND

Jennings was convicted of murder and associated crimes 

in the shooting death of Michael Brinkman (Brinkman) on 

December 23, 2016. The facts underlying those convictions are 

set forth in greater detail in this court’s opinion on appeal. 2 In 

brief, Brinkman was at his home in Douglas County along with 

his wife, Kim Milius, and his adult son, Seth Brinkman (Seth). 

Two men entered the home, and following an altercation, 

Brinkman was shot and killed. Other evidence was offered at 

trial, but as relevant to this postconviction motion, fast food 

from Raising Cane’s, including french fries, a piece of partially 

eaten Texas toast, and a container and lid of “Cane’s sauce” 

was found at the scene. The sauce container and lid and the 

toast were swabbed for DNA. Following testing of the DNA, 

Jennings could not be excluded as a contributor to these, as 

well as other items, and was arrested and charged.

Jennings was convicted in 2018. This court affirmed his 

conviction in May 2020, and Jennings thereafter filed a motion 

for postconviction relief on May 6, 2021. He subsequently 

filed two amended motions. The operative pleading in this case 

is the motion for postconviction relief filed on October 6, 2021. 

In that motion, Jennings alleged that he had the same trial and 

appellate counsel and that both were ineffective in (1) failing 

to object to the State’s destruction of evidence; (2) failing to 

object to false statements made in law enforcement’s affidavit 

1 State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020).

2 See id.
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in support of a search warrant for his cell phone records; (3) 

failing to interview or call certain witnesses; (4) not objecting to jury instruction No. 4; (5) failing to seek retesting of 

biological material; (6) failing to obtain from law enforcement 

evidence that could have been used to impeach law enforcement testimony; and (7) failing to object to testimony offered 

by an investigating detective. He further alleged that (8) the 

State engaged in prosecutorial misconduct by not disclosing 

certain evidence, and (9) the trial court committed trial error 

when it admitted Jennings’ cell phone data.

The district court denied Jennings’ motion without an evidentiary hearing. In its order, the court first noted that counsel 

could not be found to be ineffective for failing to object to the 

State’s destruction of the toast because the record indicates 

that the destruction was not made in bad faith, but was part of 

a laboratory policy that food could not be stored as evidence.

The court also rejected Jennings’ claims of false statements 

regarding the ethnicity of the suspects in the affidavit in support of the warrant for his cell phone data. The court reasoned 

that the issuing magistrate did not rely on the ethnicity of the 

suspects in determining probable cause. It rationalized that the 

magistrate instead focused on the vehicle reportedly parked 

in front of the home at the time of the home invasion and the 

relationship between the person who rented that vehicle and 

Jennings, who had previously driven the vehicle and whose 

DNA was found at the scene of the home invasion.

The court then addressed, and found without merit, Jennings’ 

claims that his counsel failed to investigate certain witnesses 

and issues prior to trial. As set forth by the court, Jennings 

alleged that counsel failed to seek DNA retesting, did not 

obtain video of Jennings’ time spent in the interrogation room, 

and did not call certain witnesses. The district court found that 

Jennings’ allegations were conclusory and did not establish 

prejudice as required by Strickland v. Washington.

 3

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).
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The court next addressed and rejected Jennings’ claim that 

counsel erred in not objecting to jury instruction No. 4. As read 

to the jury, that instruction provided:

Depending on the evidence you may return one of two 

possible verdicts to Count 1 of the information. You may 

find [Jennings], one, guilty of murder in the first degree 

felony murder or two not guilty.

Felony murder. The material elements which the State 

must prove by evidence beyond a reasonable doubt in 

order to convict [Jennings] of murder in the first degree 

felony murder as charged in Count 1 of the information 

are, one, that . . . Jennings intended to commit the crime 

of robbery. And two, that on or about December 23rd 

2016, in Douglas County, Nebraska, [Jennings] was in 

the course of committing or attempting to commit that 

robbery. And three, that [Jennings] either alone or by 

aiding and abetting another killed . . . Brinkman during the course of committing or attempting to commit 

that robbery.

A person commits robbery if, with the intent to steal, 

forcibly and by violence, or by putting in fear, take from 

the person of another any money or personal property of 

any value whatever.

A person commits attempted robbery if he intended to 

commit a robbery and he intentionally engaged in conduct that under the circumstances as he believed them 

to be was a substantial step towards committing the robbery and the person[’]s conduct strongly corroborated his 

intent to commit robbery.

The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material 

elements of the crime of murder in the first degree felony. 

If you find from the evidence beyond a reasonable doubt 

that each of the foregoing material elements is true, it is 

your duty to find [Jennings] guilty of murder in the first 

degree felony murder as charged in Count 1.
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On the other hand, if you find the State has failed to 

prove beyond a reasonable doubt any one or more of 

the foregoing material elements, it is your duty to find 

[Jennings] not guilty.

The burden of proof is always on the State to prove 

beyond a reasonable doubt all of the material[] elements 

of the crime charge[d] and this burden never shifts.

Jennings takes issue with the language at the end of the 

opening paragraph that he “either alone or by aiding and 

abetting another killed . . . Brinkman during the course of 

committing or attempting to commit that robbery.” The district court noted that the instruction was a correct statement 

of the law and that Jennings offered no argument or authority 

to show otherwise.

The district court then addressed and found without merit 

Jennings’ contention that one of the investigating officers 

falsely testified with respect to alleged inconsistent statements 

made by a witness. The district court noted that Jennings did 

not identify where these statements were made in the record, 

and it further noted that trial counsel’s decisions about making 

certain objections were generally considered to be trial strategy, for which counsel is afforded due deference.

Finally, the district court rejected Jennings’ claims of prosecutorial misconduct and trial court error, concluding those 

issues were procedurally barred.

ASSIGNMENTS OF ERROR

On appeal, Jennings assigns, restated, that the district court 

erred (1) in denying his motion for postconviction relief 

without an evidentiary hearing because his trial counsel was 

ineffective in failing to (a) object to the destruction of the 

toast found at the scene, (b) object to false statements made 

in the affidavit and warrant seeking his cell phone records, (c) 

investigate certain witnesses, (d) object to jury instruction No. 

4, and (e) object to the testimony of Det. Larry Cahill, and (2) 

by denying his motion without first giving him an opportunity 

to respond to the State’s reply.
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STANDARD OF REVIEW

[1,2] When a district court denies postconviction relief 

without conducting an evidentiary hearing, an appellate court 

determines de novo whether the petitioner has alleged facts 

that would support the claim and, if so, whether the files and 

records affirmatively show that he or she is entitled to no 

relief. 4 The appellate court does not conduct this review sua 

sponte, however; as with all appeals, the alleged errors of the 

lower court must be both specifically assigned and specifically argued in the brief of the party asserting the errors to be 

considered by the appellate court. 5 The appellate court will not 

scour the record on appeal to understand unclear arguments or 

find support for broad conclusions. 6

[3] With regard to the questions of counsel’s performance 

or prejudice to the defendant as part of the two-pronged test 

articulated in Strickland, an appellate court reviews such legal 

determinations independently of the lower court’s decision. 7

ANALYSIS

Postconviction Propositions of Law.

[4-6] The district court must grant an evidentiary hearing 

to resolve the claims in a postconviction motion when the 

motion contains factual allegations which, if proved, constitute an infringement of the defendant’s rights under the 

state or federal Constitution. 8 However, the allegations in a 

motion for postconviction relief must be sufficiently specific 

for the district court to make a preliminary determination as 

to whether an evidentiary hearing is justified. 9 An evidentiary 

hearing is not required on a motion for postconviction relief 

4 State v. Lessley, ante p. 316, 978 N.W.2d 620 (2022).

5 Id.

6 Id.

7 State v. Ellis, 311 Neb. 862, 975 N.W.2d 530 (2022). See Strickland v. 

Washington, supra note 3.

8 State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022).

9 Id.
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when (1) the motion does not contain factual allegations 

which, if proved, constitute an infringement of the movant’s 

constitutional rights rendering the judgment void or voidable; 

(2) the motion alleges only conclusions of fact or law without 

supporting facts; or (3) the records and files affirmatively 

show that the defendant is entitled to no relief. 10

Disposal of Texas Toast.

Jennings first assigns that the district court erred in not 

granting him an evidentiary hearing on his assertion that counsel was ineffective in its handling of the Texas toast found at 

the crime scene. In his brief, Jennings argues that his counsel 

was ineffective because he failed “to suppress the intentional 

destruction of any biological material evidence.” 11 He also 

argues that counsel was ineffective in failing to seek independent DNA testing because retesting of the material “would 

have likely exonerated or exculpated [him]” 12 and “could have 

implicated other suspects.” 13 Finally, Jennings argues that law 

enforcement “acted in bad faith when they did not assess 

the evidentiary value nor did they consult [Jennings] before 

destroying any evidence.” 14

Jennings’ assertion is without merit. Even assuming we 

could conclude that Jennings’ trial counsel was deficient in 

failing to object to the destruction of evidence, which occurred 

prior to counsel’s representation of Jennings and in fact prior 

to Jennings’ identification as a suspect and subsequent arrest, 

Jennings cannot show that he was prejudiced by the destruction of the toast.

As we understand Jennings’ allegations, he asserts that 

retesting or further testing of the DNA evidence from the toast 

10 Id.

11 Brief for appellant at 34.

12 Id. at 35.

13 Id. at 36.

14 Id. at 35.
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would prove exculpatory. But destruction of the toast is distinct from the sample of DNA swabbed from that toast. The 

record shows that a swab was taken and that not all of the 

sample was consumed. Thus, the potential for further testing 

exists, given the appropriate circumstances and utilization of 

the correct procedure.

Moreover, even if the DNA from the toast would have been 

excluded as a result of the allegedly improper destruction of 

the toast, that DNA was not the only DNA found at the scene. 

Just as Jennings could not be excluded from the toast sample, 

he was also not excluded from the DNA found on the sauce 

container and lid, or from a shower rod which Seth testified 

he used to fend off the home invaders. Given this other DNA 

evidence, Jennings cannot show that he was prejudiced by the 

admission of the DNA found on the toast.

We turn next to Jennings’ allegation that his counsel was 

ineffective in failing to seek DNA retesting. It is not clear 

whether Jennings asserts that all DNA should have been 

retested or that only the DNA on the toast should have been 

retested. But in either case, Jennings has failed to allege any 

circumstances which would have supported retesting at this 

stage. For example, Jennings does not allege that there are 

questions about the trustworthiness of the testing procedure 

or that improved testing methods were available and should 

have been employed over the methods utilized. Given the 

lack of such allegations, we cannot find that counsel was 

deficient in failing to seek retesting.

There is no merit to Jennings’ assignment of error.

Warrant for Cell Phone Data.

Jennings also assigns that his counsel was ineffective in 

failing to object to false statements in the affidavit in support of the State’s application for a search warrant to obtain 

Jennings’ cell phone records. Specifically, Jennings contends that when Milius called the 911 emergency dispatch 

service following the home invasion, she reported that the 
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perpetrators had been white, but that the affidavit averred 

that Milius indicated the perpetrators were Black. Jennings 

contends that at the least, the magistrate was misled, and that 

at the most, the magistrate “abandoned his or her detached 

and neutral judicial role” by not denying the warrants. 15

A review of the record demonstrates there is no merit to this 

assertion. While Milius did initially indicate that she thought 

at least one of the perpetrators was white, the victim’s son, 

Seth, indicated that both were Black. It is evident from the 

record that Milius was uncertain initially, while Seth was more 

certain. Thus, the indication in the affidavit that the perpetrators were Black was not wholly incorrect.

Moreover, as the district court, and to a lesser extent the 

State, indicated, the crux of the affidavit in support was the

“nexus between [Carnell Neal] Watt, the newer model 

white SUV parked in front of [Michael’s home] during 

the time of the home invasion, the 2016 Dodge Durango 

SU[V] rented by Watt during that time, [and] Watt’s 

statements that she allowed [Jennings] to use the Dodge 

Durango, and [Jennings’] DNA at the crime[] scene.”

There is no indication from the warrant or the affidavit 

that the ethnicity of the perpetrators had an impact on the 

magistrate’s decisionmaking process in authorizing the cell 

phone warrant.

The district court did not err in denying Jennings’ postconviction relief with respect to this allegation, and there is no 

merit to this assignment of error.

Failure to Investigate Witnesses.

Jennings next assigns that his counsel was ineffective in 

failing to investigate and call as witnesses three individuals: 

Dominique Davis, the 911 operator, and Wally Poderys. In 

addition, at oral argument in this case, Jennings indicated that 

counsel failed to properly investigate Carnell Neal Watt and 

15 Id. at 40.
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an unidentified law enforcement officer. But he did not otherwise raise either of those individuals in his brief or in his 

underlying motion, so we do not address either on appeal.

We turn first to Davis. Jennings alleged in his motion that 

Davis “may provide relevant information pertaining to [his] 

alibi” and that Davis was “willing to testify about her numerous encounters with . . . Jennings including information about 

. . . Jennings’ frequent visits to her home unannounced and his 

attempts to conceal their relationship from . . . Watt.” Jennings 

alleged that Davis’ “testimony could have been used to impeach 

the testimony of other witnesses as to . . . Jennings[’] whereabouts, demeanor and actions at or around [the] time of [the] 

incident” and that if “Davis [was] interviewed or called as a 

witness the testimony could have cleared [Jennings] or implicated other suspects or provided alternative theories of defense 

and the failure to do so prejudiced . . . Jennings.”

The district court found, and we agree, that the allegations 

regarding Davis’ testimony were conclusory. Jennings alleges 

that Davis could have cleared him, implicated others, or provided alternative theories of the defense. But Jennings does 

not explain precisely to what Davis would testify that would 

provide him an alibi or explain who, if not Jennings, murdered 

Brinkman. Nor does Jennings provide an alternative theory of 

defense to the one Jennings employed, which was apparently 

that he did not kill Brinkman and was not present. Jennings has 

not adequately pled this assertion, and accordingly, we find it 

to be without merit.

Jennings also argues that counsel was ineffective in failing 

to interview or call the 911 operator that answered Milius’ call 

to emergency services. Jennings claims that the 911 operator 

“changed the racial description of the suspects after hanging 

up the original call from Milius.” Jennings alleges that the 

operator’s testimony could have been used “to impeach the testimony of [the] others about the reported information.”

The record demonstrates that Milius was initially uncertain 

about the ethnicity of the perpetrators, while Seth was certain 
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that they were Black males. As noted above, the crux of the 

warrant was not the fact that one of the perpetrators was initially identified as white. The crux was that a vehicle matching 

the description of a vehicle that Jennings had access to was 

parked at the scene of the home invasion, that Jennings’ DNA 

was found at the scene of the home invasion, and that these 

items provided probable cause for the warrant. Interviewing or 

further investigating the 911 operator would not have changed 

this result. There is no merit to this assertion.

Jennings next contends that his counsel was ineffective for 

failing to call Poderys. Jennings alleges that testimony from 

Poderys—who by the time of trial was deceased—could have 

“provided a motive to commit the underlying felony and provide some exculpatory evidence,” because of Poderys’ “toxic 

relationship with Brinkman and the recent threat[en]ing text 

messages Brinkman received about an old debt.” The district 

court rejected this claim, addressing Jennings’ failure to investigate allegations globally and reasoning that the allegations 

in Jennings’ motion were “generic and most importantly, do 

not state what exculpatory evidence would have been gathered 

or how such evidence would have changed the outcome of 

the trial.”

We agree these allegations were conclusory in nature. In his 

motion, Jennings does not explain what motive Poderys had or 

explain the nature of the toxic relationship between Poderys 

and Brinkman, except to explain it involved an “old debt.” 

Jennings does not explain what Poderys would testify to that 

would have led to a different result in Jennings’ trial. For these 

reasons, there is no merit to this assignment of error.

Jury Instruction No. 4.

Jennings also contends that the district court erred in giving 

jury instruction No. 4. The full instruction is set forth above. 

In short, Jennings contends that the portion of the instruction 

that stated Jennings could be found guilty “either alone or 

by aiding and abetting another” was an incorrect statement 
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of the law and “shifts [the] burden of ‘beyond a reasonable 

doubt’ to [Jennings].”

[7,8] In reviewing a claim of prejudice from jury instructions given or refused, the appellant has the burden to show 

that the allegedly improper instruction or the refusal to give 

the requested instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant. 16 All the jury 

instructions must be read together, and if, taken as a whole, 

they correctly state the law, are not misleading, and adequately 

cover the issues supported by the pleadings and the evidence, 

there is no prejudicial error necessitating reversal. 17

We first observe that Jennings directs us to no authority 

suggesting that the challenged language from jury instruction No. 4 was an incorrect statement of the law. In fact, this 

court implicitly approved of this very same instruction in State 

v. Pope.

 18

We agree that the language highlighted by Jennings is not 

part of the usual pattern jury instruction for felony murder. 

But that pattern instruction does not, itself, encompass an 

aider and abettor situation; rather, it envisions a single defendant. However, there is also a pattern instruction that covers 

the situation where there is potential aider and abettor culpability. 19 That instruction was also given. When all the instructions are given together, it is clear that the additional language 

in jury instruction No. 4 was to cover the gap between the 

felony murder and the aider and abettor instructions and make 

them consistent.

Moreover, Jennings claims that the challenged language 

shifted the burden of proof. He does not explain how the language does this, nor does he cite to any authority in support 

of his argument. In any event, the jury was instructed that 

16 State v. Pope, 305 Neb. 912, 943 N.W.2d 294 (2020).

17 Id.

18 Id.

19 See NJI2d Crim. 3.8 (aider is same crime as principal).
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the State always had the burden of proof and that the burden 

never shifted to Jennings. We find no merit to this assignment 

of error.

Failure to Object to Cahill’s Testimony.

Jennings assigns that his counsel erred in failing to object 

to testimony from Cahill, a detective with the Omaha Police 

Department. Jennings argues that Cahill should not have been 

permitted to testify to the contents of a statement made by 

Watt regarding Jennings’ use of a vehicle rented by Watt. In his 

motion, Jennings alleged that Cahill “changed” Watt’s statement from one indicating that she was not sure whether she 

loaned that vehicle to Jennings, to a statement indicating that 

she had loaned the vehicle, and that such “change” violated 

Jennings’ right to due process. In his brief on appeal, Jennings 

argues that Cahill should not have been permitted to testify 

to the substance of Watt’s remarks because she pled the Fifth 

Amendment and did not testify.

This allegation is not supported by the record. The record 

affirmatively demonstrates that neither Cahill nor any other 

law enforcement witness testified at trial as to the content of 

any conversation had with Watt regarding Jennings’ use of 

a vehicle rented by Watt. As such, we find no merit to this 

assignment of error.

Opportunity to Respond to State’s Reply.

Finally, Jennings assigns that the district court erred in denying his postconviction motion without giving him the opportunity to respond to the State’s reply to his motion.

[9-11] We recently set out the postconviction procedure in 

State v. Burries,

 20 in which we noted that the only required 

pleading in a postconviction action was the motion seeking 

relief. “Upon the filing of that motion, the court has the obligation to determine whether the prisoner is entitled to no relief, 

20 State v. Burries, 310 Neb. 688, 969 N.W.2d 96 (2022).
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in which case the motion is dismissed, or, alternatively, conclude that the defendant is entitled to a hearing to determine if 

he or she is entitled to relief.” 21 If a defendant is entitled to a 

hearing, then the court shall cause notice to be served on the 

county attorney. While “the State, through its county attorneys, 

can, and often does, participate at earlier points in the process, 

the State is only called upon to take action with respect to a 

motion once it receives notice from the court.” 22

There is nothing in the language of the Nebraska 

Postconviction Act that allows any type of response from a 

defendant prior to the dismissal of his motion. Thus, the court 

did not err insofar as it did not specifically request or order 

such a filing. Nor is there any indication from this record 

that Jennings was prohibited from filing such a response. 

The State’s response was served on Jennings on October 12, 

2021, and not dismissed by the district court until February 

24, 2022, suggesting that Jennings would have had ample 

opportunity to, at a minimum, seek to file a response. Jennings 

does not argue that any attempt to do so was denied by the 

court, and there is no other suggestion in the record that such 

a denial took place.

There is no merit to Jennings’ final assignment of error.

CONCLUSION

The judgment of the district court denying Jennings’ motion 

for postconviction relief without an evidentiary hearing is 

affirmed.

Affirmed.

21 Id. at 693, 969 N.W.2d at 100.

22 Id.