In re Interest of Quiotis C.

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
In re Interest of Quiotis C., Jr.,
a child under 18 years of age.
State of Nebraska, appellee, v.
Quiotis C., Jr., appellant.
___ N.W.3d ___
Filed June 4, 2024. 	No. A-23-495.
1. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting error to be
considered by the appellate court.
2. ____. In appellate proceedings, the examination by the appellate court is
confined to questions which have been determined by the trial court.
3. Courts: Appeal and Error. An appellate court will not consider an
issue on appeal that was not passed upon by the trial court.
4. Constitutional Law: Criminal Law: Jury Trials. Both the Nebraska
and the U.S. Constitutions mandate a right to a jury trial for crimi-
nal trials.
5. Constitutional Law: Juvenile Courts: Jury Trials. A jury trial is not
required under the U.S. Constitution in a juvenile court’s adjudication.
6. Constitutional Law: Statutes: Juvenile Courts: Jury Trials. Under
Nebraska statutes, a juvenile court proceeding is a civil proceeding,
and under the doctrine of parens patriae, the constitutional guarantees
of a jury trial and the incidents thereto are not applicable to a juvenile
proceeding.
7. Constitutional Law: Criminal Law. The purpose of the structural error
doctrine is to ensure insistence on certain basic, constitutional guaran-
tees that should define the framework of any criminal trial.
8. Juvenile Courts: Appeal and Error. The standard of review for juve-
nile cases is de novo on the record; however, when evidence is in
conflict, the appellate court may give weight to the fact that the trial
court observed the witnesses and accepted one version of the facts over
the other.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:43 AM CDT

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
9. Witnesses: Evidence: Appeal and Error. An appellate court will not
reevaluate the credibility of witnesses or reweigh testimony but will
review the evidence for clear error.
10. Juvenile Courts: Proof. When an adjudication is based upon Neb. Rev.
Stat. § 43-247(1), (2), (3)(b), or (4) (Reissue 2016), the allegations must
be proved beyond a reasonable doubt.
11. Criminal Law: Evidence: Police Officers and Sheriffs. The crime
of tampering with physical evidence, as defined by Neb. Rev. Stat.
§ 28-922(1)(a) (Cum. Supp. 2022), does not include mere abandonment
of physical evidence in the presence of law enforcement.
12. Criminal Law: Evidence. To “conceal” or “remove” physical evidence,
in the context of Neb. Rev. Stat. § 28-922(1)(a) (Cum. Supp. 2022),
is to act in a way that will prevent the evidence from being disclosed
or recognized.
13. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and
Error. A party who fails to make a timely motion for mistrial based
on prosecutorial misconduct waives the right to assert on appeal that
the court erred in not declaring a mistrial due to such prosecutorial
misconduct.
Appeal from the Separate Juvenile Court of Douglas County:
Matthew R. Kahler, Judge. Affirmed.
Timothy L. Ashford for appellant.
Laura 	Lemoine, 	Deputy 	Douglas 	County Attorney, 	for
appellee.
Pirtle, Chief Judge, and Riedmann and Bishop, Judges.
Riedmann, Judge.
I. INTRODUCTION
This appeal raises the issue of a juvenile’s rights when adju-
dicated in the juvenile court for violation of criminal statutes.
At the heart of the juvenile’s argument is his contention that
he was entitled to a jury trial. He also argues the evidence was
insufficient to support his adjudication. Following our review
of the record, we affirm.

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
II. BACKGROUND
Robert Stolinski hosted a pool party at his residence on
September 5, 2022. Among the group of attendees were Mister
Parker; Brandon Butler; Quiotis C., Sr. (also known as Tiger);
Tiger’s 14-year-old son, Quiotis C., Jr. (Quiotis); and Quiotis’
8-year-old cousin, R.S.
1. Parker and Tiger’s Altercation
Tiger, Quiotis, and R.S. were outside the Stolinski residence
when Parker went to get money from his car. While walk-
ing back to the residence, Parker and Tiger exchanged words.
Parker punched Tiger in the face, causing him to collapse and
knocking him unconscious.
Parker continued to approach Tiger after rendering him
unconscious. At some point during the altercation, Quiotis
gained possession of a handgun. Witness testimony reported
hearing four shots that were fired. According to Quiotis, the
first two shots were warning shots; the other two shots struck
Parker, one in the shoulder and one in the back. The gunshot
wounds caused Parker to retreat to the Stolinski residence
where partygoers called the 911 emergency dispatch service.
Parker later died. Quiotis fled the scene.
A neighbor, Lawrence Summers, also called the 911 dispatch
service to report a disturbance shortly after he heard gunshots
nearby. He reported to the 911 dispatcher that he saw a “kid”
hiding in the field along the ridgeline. He described the kid
as running south on the street that ran the length of the field.
Summers relayed that the kid had “something in his hand but
it didn’t look like a gun or anything.” Summers would later
identify Quiotis as the kid he witnessed in the field.
Officers arrested both Tiger and Quiotis. Tiger and Quiotis
were 	transported 	to 	police 	headquarters 	where 	they 	both
invoked their right to remain silent and their right to counsel.
Photographs were taken of Tiger, who had a swollen lip and
discoloration on the left side of his face. Tiger testified at trial
that he sustained a severe concussion and a black eye as a
result of the altercation. Quiotis had no physical injuries.

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
2. Locating Evidence After Shooting
The day after the shooting, officers fanned out throughout
the neighborhood and nearby field to locate additional evi-
dence. Summers directed them to the area where he had seen
Quiotis the day before. Through their search, officers were
able to locate five pieces of a handgun, all within 10 feet of
one another.
Witnesses detailed they heard multiple shots on September
5, 2022, but the physical evidence only evinced two shots
were fired. Officers located only one shell casing at the scene.
The officer that collected the individual pieces of the firearm
from the field tested each piece for fingerprints, then reas-
sembled the handgun. The reassembled handgun was delivered
to the forensics investigation unit where it was tested and
determined to be functional. Ballistics matched the shell cas-
ing to the handgun.
On September 7, 2022, the State filed a petition in the sepa-
rate juvenile court of Douglas County, alleging under count I
that Quiotis had committed manslaughter and under count II
that Quiotis had used a firearm to commit a felony. At the
detention hearing, Quiotis entered a plea of denial to both
counts, and the court ordered that Quiotis be detained in the
Douglas County Youth Center until further order.
3. Pretrial Motions
Prior to trial, Quiotis filed a series of motions with the juve-
nile court. On October 14, 2022, Quiotis filed a motion for
request for bond review. The juvenile court denied the motion
and instead ordered that Quiotis be released to the custody
of juvenile probation once placement at the juvenile justice
center was secured. Subsequently, on January 11, 2023, the
court entered a release order directing that Quiotis be placed
at the Douglas County Youth Center but ordering that he be
rescreened for the “HOME Program,” and if accepted, to reside
in the home of his mother.

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Nebraska Court of Appeals Advance Sheets
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IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
On January 16, 2023, Quiotis motioned for placement in the
“H.O.M.E. Program.” The juvenile court dismissed the motion
as moot. It explained it previously ordered the H.O.M.E.
Program to screen Quiotis and for Quiotis to be released to
the H.O.M.E. Program if he was accepted. Because Quiotis’
placement in the H.O.M.E. Program was contingent upon his
acceptance into the program and not subject to court order,
the court stated it had addressed Quiotis’ motion to the fullest
extent possible.
On March 6, 2023, the State filed an amended petition. In
addition to the original two counts of manslaughter and use of
a deadly weapon (firearm) to commit a felony, it added two
additional counts: count III, tampering with physical evidence,
and count IV, possession of a handgun by a minor.
On March 12, 2023, Quiotis filed a motion to appoint an
expert. The juvenile court denied Quiotis’ motion. At a pre-
liminary hearing on the amended petition on March 13, Quiotis
entered a plea of denial to all four counts.
(a) Amended Plea in Abatement
On March 26, 2023, Quiotis filed an amended plea in abate-
ment. He claimed that he did not have a meaningful prelimi-
nary hearing for counts I and II when the juvenile court held
the preliminary hearing for counts III and IV. Quiotis also
requested to take the depositions of Officer Jordan Brandt and
Omaha Police Chief Todd Schmaderer.
The juvenile court denied Quiotis’ amended plea in abate-
ment. It explained there is no procedure in the Nebraska
Juvenile Code to allow for a plea in abatement and a plea in
abatement “typically involves a review by the District Court
of a finding of probable cause by the County Court.” It noted
that Quiotis had also already entered a plea of denial as to
the amended petition on March 13, 2023. It granted Quiotis’
request to take the deposition of Brandt but denied his request
to depose Schmaderer because he was not listed as a witness
and there was no evidence that he was directly involved in
any aspect of the investigation for this matter.

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
(b) Motion for Juvenile Jury Trial and Motion
to Declare Statutes Unconstitutional
On April 12, 2023, Quiotis filed numerous motions, includ-
ing a motion for a juvenile jury trial, a motion to allow court
payment for an expert, and a motion to declare numerous stat-
utes unconstitutional, specifically, Neb. Rev. Stat. §§ 28-305
(Reissue 2016), 28-922 (Cum. Supp. 2022), 28-1204 (Reissue
2016), and 28-1205 (Reissue 2016). He subsequently filed a
motion to dismiss/demurrer.
The court addressed all motions at one hearing and, in a
written order, denied all of them. It denied his motion for a jury
trial pursuant to Neb. Rev. Stat. § 43-279(1) (Reissue 2016),
which provides that “[t]he adjudication portion of hearings
shall be conducted before the court without a jury, applying
the customary rules of evidence in use in trials without a jury.”
It found the motion to declare statutes unconstitutional was
untimely because Quiotis entered denials to both the petition
and amended petition prior to filing the motion, thereby waiv-
ing all defects. It denied his motion to allow court payment
for an expert because it did not contain evidence or argument
that Quiotis was indigent and lacked the financial resources to
retain an expert. It denied Quiotis’ motion to dismiss/demurrer
for lack of argument consistent with Neb. Rev. Stat. § 29-1810
(Reissue 2016) and for raising defenses that could be asserted
at the adjudication hearing.
4. Adjudication
(a) R.S. and Summers’ Testimony
At the adjudication, R.S., who was 9 years old at the time
of trial, testified to his memory of the altercation between
Parker and Tiger. R.S. testified that Parker punched Tiger and
knocked him to the ground. Parker was going to punch Tiger
again, but then Quiotis shot Parker. R.S. was sitting on the
ground next to Quiotis during the altercation. After the shoot-
ing, R.S. ran inside to alert his mother.

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32 Nebraska Appellate Reports
IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
R.S. first testified that Quiotis picked up the gun after it
fell out of Tiger’s pocket when he collapsed from the punch.
R.S. testified that he had not seen the handgun before. The
State then reminded R.S. that at his forensic interview, he told
the interviewer that Quiotis had the gun in a fanny pack that
he was wearing draped across his shoulder. R.S. confirmed
that earlier in the day on September 5, 2022, he saw the han-
dle of a pistol in Quiotis’ fanny pack while they were inside
the Stolinski residence. R.S. admitted he saw only a portion
of the handgun, as it was inside the fanny pack that Quiotis
was wearing.
On cross-examination, R.S. admitted that in his deposition,
he testified that he did not see Quiotis with a gun prior to the
shooting. R.S. maintained at trial, however, that he did see
Quiotis with the gun prior to the shooting, and Tiger did not
have the gun. R.S. testified he was telling the truth at trial
despite his prior inconsistent statement in his deposition.
Summers also testified about his recollection of the events
that occurred on September 5, 2022, and the following day.
Summers was asked a variety of questions regarding what he
observed in Quiotis’ hands when Summers made his 911 call.
He first testified that Quiotis was carrying “some kind of bag,
a dark-colored backpack or fanny pack or something. It could
have been a grocery sack or something. It was kind of a dark-
colored bag.” He was asked to describe the bag he saw, and
he answered that “[i]t had a strap but I couldn’t tell if it was a
fanny pack or a backpack [or] something.”
(b) Quiotis’ Recollection of Shooting
Quiotis disputed much of the testimony about his posses-
sion of the handgun and the events that followed the shooting.
Quiotis testified that he did not own a fanny pack. When he
left his house on September 5, 2022, the only thing he took
with him was his phone. At the Stolinski residence, Tiger
and Quiotis were about to leave when Parker and Tiger got
into the altercation. According to Quiotis, when Parker struck

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
Tiger and knocked him unconscious, a handgun fell from
Tiger’s waist and landed approximately 2 feet from Quiotis.
Quiotis disputed that Tiger had been hit only once; instead,
Quiotis testified, “I’m not sure how many times Mister Parker
hit my dad, but he definitely hit him more than one time.”
Quiotis recalled that he picked up the gun, then yelled,
“‘Stop.’” Quiotis explained that when Parker did not stop,
he fired two warning shots. Because Parker did not seem to
notice, Quiotis fired one shot at Parker’s back. Parker was on
top of Tiger at this point. Quiotis testified the one shot did not
seem to affect Parker, so he then fired a second time.
After Parker retreated inside the house, Quiotis checked on
Tiger to make sure he was alive. He then called his mother
and began to run home, which was not far. Quiotis testified
that he feared if the police found him with a handgun, they
would shoot him. He did not want to dispose of a functional
gun because he did not want another person to find the gun
and use it. So Quiotis disassembled the pistol into five pieces
and scattered the pieces throughout the tree line, all within
15 feet of each other. When asked what he thought was going
to happen, Quiotis responded that he believed he would be
home later that night, as he did not think he had done any-
thing wrong.
Quiotis acknowledged that he possessed the gun that night
to protect Tiger. He acknowledged he did not tell police about
the handgun or where it could be found, despite officers’ ask-
ing multiple times where he had discarded it.
Quiotis’ mother testified that when Quiotis left the house on
September 5, 2022, he brought only his phone with him. She
claimed he did not own a fanny pack, much less have one the
last time she saw him before the shooting. Butler also testi-
fied that on September 5, he never saw Quiotis with any kind
of bag.
5. Juvenile Court Adjudication Order
After the adjudication hearing, the juvenile court issued a
written order finding that there was insufficient evidence to

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32 Nebraska Appellate Reports
IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
find that Quiotis violated the statutes for manslaughter and use
of a deadly weapon to commit a felony. Because Quiotis raised
the affirmative defense of defense of others, the juvenile court
found it was the State’s burden to show that Quiotis’ actions
did not fall under the guidelines of Neb. Rev. Stat. §§ 28-1409
and 28-1410 (Reissue 2016). It found the State failed to meet
this burden and dismissed the charges for manslaughter and
use of a deadly weapon to commit a felony. Because Quiotis
was not adjudicated on these charges, we need not discuss
them further, or the facts upon which they were based. Rather,
we focus our analysis on the two violations found by the juve-
nile court: tampering with physical evidence and unlawful pos-
session of a handgun.
As it relates to these two violations, the juvenile court found
that following the shooting, Quiotis ran from the area, hid,
then disassembled the handgun “into several pieces and threw
each piece under separate trees.” It explained that the evidence
showed Quiotis’ actions of disassembling the weapon was an
attempt to conceal the weapon from discovery and render it
unrecognizable as individual parts because he was concerned
that he would encounter law enforcement.
The juvenile court ordered that Quiotis undergo a psycho-
logical evaluation arranged by juvenile probation, participate in
individual therapy, and abide by the rules of his “shelter care
placement.” It placed him under the supervision of a probation
officer subject to the terms and conditions of his probation. It
ordered Quiotis to remain in such placement until further order
by the juvenile court. Quiotis appeals.
III. ASSIGNMENTS OF ERROR
Quiotis’ 25 assignments of error can be grouped into five
categories, including the juvenile court erred in (1) denying
him a jury trial, (2) denying his numerous pretrial motions,
and (3) finding the evidence sufficient to support an adjudica-
tion for tampering and minor in possession of a firearm. He
also (4) challenges the constitutionality of several statutes and
(5) asserts the prosecutor engaged in misconduct.

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IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
IV. STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings. In re Interest of Zoie H., 304 Neb. 868,
937 N.W.2d 801 (2020). When the evidence is in conflict,
however, an appellate court may give weight to the fact that
the trial court observed the witnesses and accepted one version
of the facts over the other. In re Interest of Elijahking F., 313
Neb. 60, 982 N.W.2d 516 (2022).
V. ANALYSIS
1. Compliance With Appellate Rules
[1] As a preliminary issue, Quiotis’ brief fails to comply
with the appellate court rules. He assigns that the juvenile
court abused its discretion by denying his motion to appoint
an expert, granting the State’s motion to amend, denying his
motion to dismiss/demurrer, denying his motion for place-
ment in the H.O.M.E Program, denying his plea in abatement,
denying his subpoena for the Omaha police chief, denying his
motion for bond review, and denying his motion for payment
for an expert. None of these assignments of error are argued.
An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting error to
be considered by the appellate court. State v. Sundquist, 301
Neb. 1006, 921 N.W.2d 131 (2019). Because his assignment
of error related to the denial of his pretrial motions is not
argued, we do not review it.
Quiotis asserts a facial and as an applied challenge to the
constitutionality of §§ 28-305, 28-922, 28-1204, and 28-1205.
The only portion of his brief addressing this assignment of
error provides
The Court erred because [Quiotis] asserts a facial chal-
lenge that the statutes are unconstitutional and the stat-
utes as applied to [Quiotis] are unconstitutional because
when a criminal-law term is used in the criminal-law

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IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
statutes . . . that, in and of itself, is a good clue that it
takes its criminal-law meaning and is not civil.
Brief for appellant at 27. Quiotis does not specifically address
why each statute is unconstitutional. As stated above, an
alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting error to be con-
sidered by the appellate court. State v. Sundquist, supra. An
argument that does little more than restate an assignment of
error does not support the assignment, and an appellate court
will not address it. Id. Here, Quiotis’ argument regarding the
constitutionality of the criminal statutes does little more than
restate his assignment of error. Without analysis, his assigned
error evades review.
[2,3] We further note that the juvenile court never addressed
the constitutionality of these statutes on the merits because it
found the motion challenging them was untimely. In appel-
late proceedings, the examination by the appellate court is
confined to questions which have been determined by the
trial court. Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d
455 (2001). An appellate court will not consider an issue
on appeal that was not passed upon by the trial court. J.B.
Contracting Servs. v. Universal Surety Co., 261 Neb. 586,
624 N.W.2d 13 (2001). The Nebraska Supreme Court has held
that a constitutional issue not presented to or passed upon by
the trial court is not appropriate for consideration on appeal.
See In re Adoption of Luke, 263 Neb. 365, 640 N.W.2d
374 (2002).
This leaves Quiotis with three assigned errors: The juvenile
court erred in denying him a jury trial and in finding the evi-
dence sufficient to adjudicate him for tampering and being a
minor in possession of a firearm, and the prosecutor engaged
in misconduct.
2. Right to Jury Trial
Quiotis raises three arguments to support his assignment of
error that the juvenile court erred by denying him a jury trial.

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IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
First, he argues it violates the Nebraska and U.S. Constitutions
that mandate the right to a jury trial for criminal proceedings.
Second, he argues that § 43-279 is unconstitutional. Finally,
he argues that denying him a jury trial is a structural error,
which he claims rendered his trial fundamentally unfair. We
address each of his arguments separately.
(a) Constitutional Guarantees
[4,5] Both the Nebraska and the U.S. Constitutions man-
date a right to a jury trial for criminal trials. See In re
Interest of Zoie H., 304 Neb. 868, 937 N.W.2d 801 (2020).
In McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976,
29 L. Ed. 2d 647 (1971), the U.S. Supreme Court held that a
jury trial is not constitutionally required in a juvenile court’s
adjudication. McKeiver emphasized that if a state decides
to offer jury trials in juvenile adjudications that it would be
the state’s privilege and not its obligation. After McKeiver, a
minority of states extended the right to a jury trial in juve-
nile adjudications if certain circumstances are met. See, e.g.,
Kan. Stat. Ann. § 38-2357 (2021) (granting juveniles right
to request jury trial); Mass. Gen. Laws Ann. ch. 119, § 55A
(West 2017) (requiring trial by jury unless waived); RLR v.
State, 487 P.2d 27 (Alaska 1971) (holding Alaska constitution
guarantees juvenile’s right to jury trial). However, Nebraska
is not one of those states.
[6] The Nebraska Supreme Court has held that a juvenile
court proceeding, under the controlling statute in the State
of Nebraska, is a civil proceeding, and under the doctrine of
parens patriae, the constitutional guarantees of a jury trial and
the incidents thereto are not applicable to a juvenile proceed-
ing. In re Interest of Zoie H., supra. Under § 43-279(1), “[t]he
adjudication portion of hearings shall be conducted before
the court without a jury, applying the customary rules of evi-
dence in use in trials without a jury.” A juvenile adjudication
does not result in a conviction and sentence; instead, when
a juvenile is adjudicated for acts which would constitute a

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IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
felony, Neb. Rev. Stat. § 43-286 (Cum. Supp. 2020) sets out
the dispositional options available to the juvenile court. In re
Interest of Zoie H., supra. Even when the disposition is simi-
lar to that imposed as punishment for a crime, the Supreme
Court has not found the disposition to be punishment. Id.
Here, Quiotis argues that because a juvenile is charged
with a felony, there is no real distinction between charging a
defendant criminally and in a juvenile adjudication; rather, the
distinction is made purely on the “basis of labels.” Brief for
appellant at 27. But it has long been held that a juvenile adju-
dication is not a criminal proceeding, so there is no constitu-
tional right to a jury trial. In re Interest of Zoie H., supra. See,
also, McKeiver v. Pennsylvania, supra; McMullen v. Geiger,
184 Neb. 581, 169 N.W.2d 431 (1969). Furthermore, there
are many distinctions between a criminal trial and a juvenile
adjudication beyond just labels. For example, juvenile adjudi-
cations are civil in nature, and dispositions of juvenile adju-
dications are not punishment. See In re Interest of Zoie H.,
supra. The purpose of these statutes for juvenile adjudication
is the education, treatment, and rehabilitation of the child,
rather than retributive punishment, which is why the proceed-
ings are described as civil instead of criminal. In re Interest of
Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007). Quiotis’
argument that the denial of a jury trial violates his constitu-
tional rights fails.
(b) Unconstitutionality of § 43-279
Quiotis assigns that § 43-279 is unconstitutional because
it violates his constitutional right to a trial by jury under the
Nebraska and U.S. Constitutions. However, Quiotis never
challenged the constitutionality of this statute in the juvenile
court. Although he argued a denial of a jury trial violated
his constitutional rights, he did not specifically challenge
§ 43-279 as unconstitutional, nor did he include it in the list
of statutes whose constitutionality he challenged in his motion
to declare statutes unconstitutional. Thus, the issue was not

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IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
presented to the juvenile court and the juvenile court did not
address the statute’s constitutionality.
When an issue is raised for the first time in an appellate
court, it will be disregarded inasmuch as a lower court cannot
commit error in resolving an issue never presented and submit-
ted to it for disposition. See, V.C. v. Casady, 262 Neb. 714, 634
N.W.2d 798 (2001); Maxwell v. Montey, 262 Neb. 160, 631
N.W.2d 455 (2001). Accordingly, we do not consider Quiotis’
constitutional challenge to § 43-279.
(c) Structural Error Doctrine
[7] Quiotis’ argument that the juvenile court’s denial of
a jury trial is structural error fails for the same reasons his
claim that he has a constitutional right to a jury trial fails. The
purpose of the structural error doctrine is to ensure insistence
on certain basic, constitutional guarantees that should define
the framework of any criminal trial. Weaver v. Massachusetts,
582 U.S. 286, 137 S. Ct. 1899, 198 L. Ed. 2d 420 (2017).
Because the structural error doctrine applies to criminal pro-
ceedings and a juvenile adjudication is a civil proceeding,
Quiotis’ argument is inapplicable. Therefore, the juvenile
court did not err by denying Quiotis a jury trial.
3. Sufficiency of evidence
Quiotis attacks the juvenile court’s finding that the evi-
dence was sufficient to find he tampered with evidence and
was a minor in possession of a firearm. Within his argument,
he attacks both witness credibility and the sufficiency of the
underlying facts.
(a) Witness Credibility
Quiotis assigns the juvenile court was clearly erroneous
in finding R.S.’ and Summers’ testimony credible. He argues
that R.S. and Summers did not tell “officials that a fanny
pack existed after the incident.” Brief for appellant at 29. He
contends that Quiotis’ mother, Butler, and Quiotis all testified
that Quiotis did not have a fanny pack that day. He concludes

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IN RE INTEREST OF QUIOTIS C.
Cite as 32 Neb. App. 932
that R.S. and Summers were impeached, so the juvenile court
clearly erred in finding their testimony credible.
[8,9] The standard of review for juvenile cases is de novo
on the record; however, when evidence is in conflict, the
appellate court may give weight to the fact that the trial court
observed the witnesses and accepted one version of the facts
over the other. In re Interest of Gunner B., 312 Neb. 697, 980
N.W.2d 863 (2022). An appellate court will not reevaluate the
credibility of witnesses or reweigh testimony but will review
the evidence for clear error. Eicher v. Mid America Fin. Invest.
Corp., 275 Neb. 462, 748 N.W.2d 1 (2008).
Here, the juvenile court’s finding that R.S. and Summers
were credible witnesses was not clearly erroneous. It found
Quiotis “brought a firearm to the home of Robert Stolinski.
This finding of fact was based on the testimony of the minor
child R.S., . . . Summers, and other evidence received during
the adjudication.” It also found that Quiotis “used the firearm
he possessed to fire at least two shots.” R.S. acknowledged
his prior inconsistent deposition testimony but assured the
court that he was testifying truthfully. The juvenile court
did not err in finding his testimony credible. And Summers’
testimony that Quiotis may have had a fanny pack was not
inconsistent with his prior report that he had “something” in
his hand. The court did not err in determining that Summers’
credibility was not impeached. See State v. Stevens, 290 Neb.
460, 472, 860 N.W.2d 717, 729 (2015) (providing trial court
“considerable discretion in determining whether testimony is
inconsistent with prior statements”).
R.S. testified he observed Quiotis with a fanny pack the day
of the shooting. Quiotis’ counsel challenged R.S.’ testimony
based on the testimony R.S. provided in a previous deposition.
When asked about the differences, R.S. acknowledged the
discrepancy but maintained that he witnessed Quiotis with a
fanny pack earlier in the day and saw the handle of a handgun
in it. The juvenile court was in the best position to judge R.S.’
credibility, and we will not second guess it.

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Summers reported in his 911 call that the individual hiding
in the field was “running [with] something in his hands,” but
it did not appear to be a gun. Summers told officers during a
followup call on September 19, 2022, that he believed the per-
son in the field was holding “a bag or something.” Although
Quiotis argues on appeal that Summers testified that he saw
Quiotis “with a fanny pack,” the record adds additional con-
text to show why Quiotis’ claim does not accurately reflect
Summers’ testimony. Summers testified that he saw Quiotis in
the field with “some kind of bag, a dark-colored backpack or
fanny pack or something. It could have been a grocery sack
or something.” Summers described the item “had a strap but I
couldn’t tell if it was a fanny pack or a backpack [or] some-
thing.” The juvenile court’s finding of Summers’ credibility
was not clearly erroneous.
(b) Evidence Regarding Underlying Violations
[10] When an adjudication is based upon Neb. Rev. Stat.
§ 43-247(1), (2), (3)(b), or (4) (Reissue 2016), the allegations
must be proved beyond a reasonable doubt. § 43-279(2). In
re Interest of Gabriel P., 29 Neb. App. 431, 954 N.W.2d 305
(2021). Although an adjudication is not a criminal proceeding,
we take guidance from the criminal laws of this state. Id.
(i) Tampering With Physical Evidence
Quiotis assigns the juvenile court erred in finding sufficient
evidence to support a violation of the tampering with physical
evidence statute. See § 28-922. He argues that the State failed
to establish each element of the violation, namely, there was no
official proceeding initiated on September 5, 2022, and the gun
was not destroyed, mutilated, defaced, or in any way altered
when abandoned.
Under § 28-922(1):
A person commits the offense of tampering with physical
evidence if, believing that an official proceeding is pend-
ing or about to be instituted and acting without legal right
or authority, he or she:

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(a) Destroys, mutilates, conceals, removes, or alters
physical evidence with the intent to impair its verity
or availability in the pending or prospective official
proceeding[.]
Physical evidence is defined under § 28-922(2) as “any
article, object, document, record, or other thing of physical
substance.” Because we determine that the juvenile court did
not err in finding sufficient evidence that Quiotis violated the
unlawful possession of a handgun statute as explained below,
Quiotis did not have legal right or authority to dispose of
physical evidence.
Quiotis first argues that there was no pending official
proceeding when he discarded the gun; therefore, the require-
ments of § 28-922(1) cannot be met. However, Quiotis tes-
tified that he did not want the police to find him with the
handgun so he disassembled it and concealed its pieces in
the tree line. Contrary to Quiotis’ argument, the statute does
not require that there be a pending proceeding. It is sufficient
if the defendant believes that an official proceeding is about
to be instituted. In State v. Lasu, 278 Neb. 180, 768 N.W.2d
447 (2009), the Supreme Court stated that the fact that a
defendant discarded a bag of marijuana while being followed
by police was sufficient to determine the defendant did so
because he believed an official proceeding was about to be
instituted. It concluded, “It is reasonable to infer that [the
defendant] threw away his marijuana because he was afraid
of being arrested and searched . . . .” Id. at 184, 768 N.W.2d
at 451.
Quiotis recognized that police involvement was likely, and
he did not want them to discover the gun in his possession.
Although he testified he was afraid of being shot by police, it
is reasonable to infer that he was afraid of being arrested and
searched. The evidence was sufficient to find that he believed
an official proceeding was about to be instituted.
Quiotis also argues the evidence was insufficient to find
that he destroyed, mutilated, concealed, removed, or altered

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physical evidence with the intent to impair its availability.
He testified that he did not want to leave the handgun at the
scene of the crime, nor did he want another person to be able
to use the handgun after he disposed of it. His solution was
to disassemble the handgun and leave the pieces scattered
underneath trees, thus removing the handgun from the scene
of the crime. He asserts that his actions are comparable to the
defendant’s actions in State v. Lasu, supra. We disagree.
[11,12] In Lasu, the defendant had been the victim of an
assault. After responding officers arrived at the gas station
where the assault occurred, the defendant asked to use the
restroom. On his way, he discarded a bag of marijuana into
a large cardboard bin of snack foods, where it landed on
top. The officers immediately retrieved the bag and arrested
him. The Supreme Court distinguished between discarding,
concealing, or removing evidence with the intent to impair
its availability and merely abandoning evidence. It held that
the crime of tampering with physical evidence, as defined by
§ 28-922, does not include mere abandonment of physical
evidence in the presence of law enforcement. State v. Lasu,
supra. It explained that to “conceal” or “remove” physical
evidence, in the context of § 28-922, is to act in a way that
will prevent the evidence from being disclosed or recognized.
State v. Lasu, supra. A person is not guilty of tampering with
evidence when the evidence at issue is made more appar-
ent, rather than less apparent. See id. Because the defendant
did not attempt to conceal the bag, but, rather, attempted to
conceal his possession of the bag, his actions did not consti-
tute tampering.
Unlike the defendant in Lasu, Quiotis removed the handgun
from the scene, outside of the presence of law enforcement,
disassembled it, and scattered the pieces underneath the trees,
making the possibility of finding the evidence less apparent.
(Contrast State v. Lasu, 278 Neb. at 185, 768 N.W.2d at 452,
in which court stated it was not “a case in which the defend-
ant placed evidence where it was unlikely to be discovered”).

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The difficulty in finding the pieces of the handgun is high-
lighted by the fact that officers had to be redirected by
Summers to the proper area to search. Quiotis did not merely
abandon the handgun; he removed it from the crime scene,
altered its appearance, and scattered the pieces underneath 10
to 15 feet of tree line.
The juvenile court did not err in finding sufficient evidence
that Quiotis violated the tampering with physical evidence
statute.
(ii) Unlawful Possession of Handgun
Quiotis assigns the juvenile court erred in finding sufficient
evidence that he violated the unlawful possession of a hand-
gun statute. See § 28-1204. He argues that any rational trier of
fact could not have found the essential elements were met to
find Quiotis was unlawfully in possession of a handgun.
Under § 28-1204(1), “any person under the age of eighteen
years who possesses a handgun commits the offense of unlaw-
ful possession of a handgun.” Subsection (2) provides excep-
tions for certain situations in which subsection (1) does not
apply; however, none of those exceptions apply to this case.
Black’s Law Dictionary 1407 (11th ed. 2019) defines “pos-
sess” as “[t]o have in one’s actual control; to have possession
of.” Essentially there are two elements to prove that a person
violated § 28-1204, which are that the person (1) was under
the age of 18 and (2) had a handgun in their actual control.
Here, there was sufficient evidence to find Quiotis violated
§ 28-1204, as both elements were met. Quiotis testified that
he was 15 years old at the time of trial, which means he was a
person under the age of 18 at the time of the shooting. There is
no dispute that Quiotis shot Parker, which meant he possessed
the handgun. Quiotis testified that he possessed the handgun
to protect his father. Furthermore, the juvenile court specifi-
cally found that Quiotis brought the handgun to the pool party.
Both elements of unlawful possession of a firearm were satis-
fied; thus, there was sufficient evidence to find that Quiotis
violated § 28-1204.

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Quiotis argues on appeal that there was not sufficient evi-
dence at trial to show that he carried around a fanny pack with
a handgun inside; thus, he cannot be convicted of unlawful
possession of a handgun. This contention is misguided for
two reasons.
First, as described above, Quiotis failed to show that the
juvenile court’s finding of R.S.’ and Summers’ credibility was
clearly erroneous. Because the juvenile court was not clearly
erroneous in finding R.S. and Summers credible, we will not
reevaluate their credibility. See Eicher v. Mid America Fin.
Invest. Corp., 275 Neb. 462, 748 N.W.2d 1 (2008). The juve-
nile court’s finding of fact that Quiotis brought the handgun
to the party based on R.S.’ and Summers’ testimony is enough
evidence to show that Quiotis possessed the handgun prior to
the shooting.
Second, regardless of Quiotis’ possession of the fanny pack,
Quiotis admits in his brief that he possessed the handgun “to
defend his father and the life of his father.” Brief for appel-
lant at 30. This admission satisfies one of the elements of
§ 28-1204, that Quiotis possessed a handgun, and his admis-
sion at trial that he is under the age of 18 satisfies the other
element. Therefore, Quiotis’ arguments fail.
4. Prosecutorial Misconduct
Quiotis assigns that the prosecutor committed misconduct
by allowing Summers to testify that he observed Quiotis with
a fanny pack, despite telling the 911 operator that he did
not know what was in Quiotis’ hand. This alleged error has
been waived.
[13] Quiotis never moved for a mistrial or claimed that
the prosecutor committed misconduct in the juvenile court. A
party who fails to make a timely motion for mistrial based on
prosecutorial misconduct waives the right to assert on appeal
that the court erred in not declaring a mistrial due to such
prosecutorial misconduct. State v. Mrza, 302 Neb. 931, 926

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N.W.2d 79 (2019). Because Quiotis did not move for a mis-
trial, this alleged error is waived.
VI. CONCLUSION
For the foregoing reasons, we affirm.
Affirmed.