The Nebraska Court of Appeals on Tuesday upheld a Lincoln man's child abuse conviction for spanking his stepson with a belt around 30 times as punishment for misbehaving at church.
Lester Wagner Jr., 48, had appealed both his misdemeanor conviction and the length of his sentence — first to the Lancaster County District Court, then to the state Court of Appeals.
A Lancaster County jury had found him guilty in June 2017.
But the case dated back to Feb. 5, 2017, the day a churchgoer called to tell the stepfather his boys were messing around during the Sunday service.
When the boys got home, Wagner told the 11-year-old boy to go up to his room, where he struck his bare bottom with a belt around 30 times, according to the boy.
When the boy fell to the floor, Wagner continued to hit him with the belt, he said. Wagner and boy's mother testified he spanked the boy only three times with the belt.
The next day, the boy told a school counselor, and law enforcement was called to investigate.
The strikes left bruises on the boy's lower back, buttocks and arms, which he'd used to try to protect himself. In some places, they broke skin.
Wagner was accused of negligent child abuse, a misdemeanor, for having put a minor child in a situation that endangered his physical or mental health, or cruelly confining or punishing the child.
After his trial, Lancaster County Judge Laurie Yardley sentenced him to 180 days in county jail, calling photos of the boy's injuries "appalling." Wagner appealed.
"The question in appellant's case is whether the use of corporal punishment as described at trial constituted child abuse under Neb. Rev. Stat. 28-707(1)," Lancaster County District Judge Kevin McManaman wrote in an order a year ago.
Deputy Lancaster County Public Defender Matthew Meyerle argued then that state law said use of force by a parent or guardian is justifiable if used "for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his or her misconduct," and if the punishment wasn't designed to cause or create "a substantial risk of death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation."
McManaman said under state law, a parent isn't liable either civilly or criminally for moderately or reasonably correcting a child. But, he said, that's a question to be determined by the jury. Wagner appealed again.
In a decision Tuesday, Nebraska Court of Appeals Judge David Arterburn said there was sufficient evidence to support the jury's finding that the use of force was not justified or reasonable.
And, Arterburn said, Wagner's sentence fell squarely within the statutory range of up to a year in jail and he'd been convicted previously of manslaughter.