Mccormack, J.
Kelvin L. Smith was convicted in a jury trial of two counts of first degree sexual assault of a child; three counts of third degree sexual assault of a child; three counts of incest; three counts of visual depiction of sexually explicit conduct; and one count of child abuse. Three of the sexual assault charges were charged as second offenses, which, pursuant to Neb. Rev. Stat. § 28-319.01(3) (Cum. Supp. 2014), enhanced Smith's penalty to a mandatory minimum sentence of 25 years in prison. In total, Smith was sentenced to 41 to 110 years of imprisonment, 35 of those years being "hard" years, for which there is no possibility of parole. Smith appeals both his convictions and sentences, assigning 12 errors.
Smith and Jennifer Smith met and began dating in April 2004. In late April or May, Smith moved into Jennifer's apartment in Council Bluffs, Iowa, with Jennifer and her two daughters, S.D. and A.L., who were 9 and 6 years old at the time. Smith and Jennifer were married in June 2004. They conceived a son, who was born in September 2010.
On August 6, 2013, Child Protective Services received a child sexual abuse report with regard to S.D., A.L., and the Smiths' son. As a result of the report, a caseworker went to the Smiths' apartment to interview each family member. Based on disclosures made by A.L., the case was turned over to a detective. On August 12, the detective questioned Smith, and then placed him under arrest. On October 22, Smith was formally charged with offenses of which he was later convicted.
S.D. and A.L. both testified at Smith's trial that Smith sexually assaulted them. Although they could not testify to the exact dates for each of the alleged incidents, the girls described their experiences in terms of where they were living at the time. Thus, it becomes relevant that the family moved to La Vista, Nebraska, in 2005 and to Bellevue, Nebraska, in 2007.
At trial, S.D., then 19 years old, testified that Smith began sexually assaulting her when she was 10 years old and the family was living in La Vista. She testified that the first incident occurred one day while her mother and sister were gone. Smith called S.D. into his bedroom, grabbed her by the wrist and took her clothes off despite her asking him to stop. S.D. testified that Smith pulled her down to the bed, pulled down his pants, got on top of her, spread her legs open, and put his penis inside her. S.D. testified that incidents like the one she described occurred multiple times a month while they lived in La Vista. S.D. said she never told her mother because Smith told her not to and told her that it would upset her mother.
S.D. testified that the sexual assaults began to occur more frequently after the family moved to Bellevue in 2007. She testified that a couple of times a week, Smith would touch her inappropriately or force her to have oral sex or intercourse with him.
When S.D. was 12 or 13 years old, she began to go through puberty and began to grow pubic hair. At trial, S.D. testified that Smith told her she needed to start shaving because he did not like her having hair on her pubic area. She said Smith showed her how to shave; he used a razor on her legs and pubic area without soap or
At trial, S.D. testified that Smith took nude photographs of her on multiple occasions. At trial, S.D. was able to recall specific details about an incident that occurred when she was 13 years old. When asked to describe that incident, S.D. said:
S.D. testified that she saw the pictures after they were taken. She said that the photograph Smith took of her buttocks showed her vaginal area. S.D. testified that Smith placed the photographs into his photograph album (photo album), where there were also nude photographs of S.D.'s mother.
A detective, Sarah Spizzirri, obtained Smith's photo album from Jennifer after Smith's arrest. At the time Spizzirri obtained the album, it did not contain any photographs of S.D. Instead, there was an empty page where the photographs in question were alleged to have been placed.
Smith's photo album was the kind with peel-back-and-stick contact sheets. At trial, Spizzirri testified about those types of photo albums, and Smith objected on form and foundation grounds throughout that testimony. Spizzirri said she was old enough to remember those types of photo albums and described how to insert a photograph into them. Spizzirri was allowed to testify that a contact sheet that has never been lifted is smooth and one that has been lifted is "all bubbled." When the State asked Spizzirri whether a blank page of Smith's photo album, where explicit photographs of S.D. had allegedly been, was bubbled and appeared to have been used, Smith objected again, and the court, believing the testimony had already been adduced, sustained Smith's objection on the grounds that the question had been asked and answered.
S.D. testified that Smith had stopped sexually assaulting her in 2008 when she started dating her first boyfriend, Collin Ryan, whom she dated on and off for 4 years. S.D. testified that one day, while she was babysitting with Ryan, she told Ryan that Smith had touched her.
S.D. also testified that she had expressed to her best friend, Kendra Dick, that she was being sexually assaulted. S.D. testified that she wrote a poem about it in a notebook that she shared with Dick, sometime around their sophomore year of high school. Without any hearsay objections from Smith, S.D. explained that the poem "was about [her] being afraid to be alone; and [she] was afraid that if [she]
S.D.'s testimony was partly corroborated by Ryan's and Dick's statements at trial. Ryan testified that in December 2008, he drove S.D. home after a date, and that as he was backing up to leave, S.D. came running back outside. Ryan said that he went up to her to see what was wrong and that S.D. started crying. Over Smith's hearsay objections, Ryan testified that S.D. told him that she could not be there anymore, because "he" touches her. Ryan said he understood it to be Smith who was touching S.D., since no other males lived in the house.
Dick testified that in junior high, she and S.D. had a secret notebook in which they would write notes to each other and pass back and forth between classes. Dick testified that S.D. wrote a poem in the notebook, but Smith's hearsay objections were sustained, and Dick was not allowed to testify to the specific contents of the poem. Rather, Dick was allowed to testify that the poem was significant to her and caused her to feel scared for S.D. because "something wasn't right." When asked if Dick's understanding was that the poem was about Smith's raping S.D., Dick answered yes. Smith then objected on hearsay grounds, and that objection was overruled.
A.L., who was 16 years old at the time of trial, testified that Smith began sexually assaulting her when she was 11 years old. She testified that the first time such an incident occurred, Smith came to her room at night and lay on her bed. A.L. testified that Smith took her pants and his clothes off, opened her legs, and put his penis inside her for what "felt like a long time." A.L. testified that about a month later, Smith came to her room again, put his fingers inside her, and performed oral sex on her. She testified that Smith penetrated her with his penis only that one time, but that Smith continued to penetrate her with his fingers every other night for about a year. A.L. testified that Smith stopped sexually assaulting her sometime after she started her period and Jennifer became pregnant.
Although A.L. did not tell her mother about Smith's sexually assaulting her, A.L. testified that she wrote a letter she hoped her mother would find and kept it in a box in her closet. When asked at trial what the letter was about, A.L. said she wrote about the time Smith penetrated her with his penis and how scared she was. A.L. said that at the end of the letter, she wrote, "[I]f this is my mom finding this, I'm sorry I didn't tell you."
A.L. testified that sometime after Smith stopped sexually assaulting her, she showed the letter to her friend, Natalie James. A.L. said that James came over on a day when A.L. was home by herself, and that A.L. went to her room, got the note, and gave it to James. She testified that James read it and cried. Smith did not object to any of A.L.'s statements about the letter or what she told James.
To corroborate A.L.'s testimony, the State called James to testify regarding the letter. James testified that rather than A.L.'s giving the letter to James, A.L. read the letter to James. Over Smith's hearsay objections, James said the letter told the story of how "one night [Smith] came into [A.L.'s] room, laid in her bed, and then he raped her." James did not remember any message at the bottom of the letter.
On the third day of trial, it came to light, through Smith's cross-examination of Spizzirri and Det. Steve Miller, that a medical examination had been performed on A.L. Prior to that testimony, neither Smith nor the State was aware of the medical examination. Miller, who was assigned to investigate Smith's case, received documentation of the examination from a child advocacy center and placed it in his personal file; he testified that he mistakenly failed to submit the documentation to the records division, where it would have become part of the official case file.
The parties stipulated that documentation of A.L.'s medical examination would be received into evidence without objection. The documentation, entered into evidence as exhibit 25, reflected that A.L.'s hymen had "a continuous hymenal border with a redundant hymenal surface," meaning there was no disruption in the border or evidence of trauma on A.L.'s hymen. Neither party requested a continuance based on the surprise caused by the exhibit.
Prior to trial, the State was unaware of A.L.'s medical examination, and thus did not disclose to Smith that it intended to elicit expert testimony from Haney about the examination or about the hymen's ability to heal. Before trial, the State expected that Haney would testify only about the photographs she took of the scars on S.D.'s thighs. At trial, however, Haney testified, not only about the scars on S.D.'s thighs, but also that the hymen is able to heal after penile or digital penetration. She testified that a physician cannot tell whether a woman or female child is a virgin based on the presence or absence of a hymen and that the fact exhibit 25 showed A.L. had a normal genital examination did not discount her sexual abuse disclosure.
Smith allegedly "had to scramble within 12 hours to find an expert of his own to counter ... Haney's surprise opinion."
From what can be gleaned from McFadden's testimony, his position appears to be that an 11-year-old girl has not yet had an increase in the production of estrogen and that as a result, her hymen is thinner and less elastic than it will be after she goes through puberty. He testified that if an adult male penetrated an 11-year-old girl's vagina, there would likely be some laceration of the hymen, that the damage would be increased if the penetration was forced, and that A.L.'s medical examination was inconsistent with allegations that she was once penetrated by Smith's penis and digitally penetrated every other night for a year.
McFadden testified that he disagreed with Haney's testimony that there would be no medical evidence of tearing of the hymen. He said that, if injured, the hymen's tissue will heal, but it will not go back to its original state; instead, there will be a "transection" where the tissue healed.
At the conclusion of the trial, the jury found Smith guilty on the charges described above. An enhancement hearing was held, and the State offered, and the court accepted, exhibit 37 into evidence. Exhibit 37 was purported to be a prior conviction of attempted first degree sexual
Smith was ultimately sentenced to 41 to 110 years in prison, 35 of those years being "hard" years, for which there is no good time and no possibility of parole.
Additional facts relevant to our analysis of Smith's assignments of error will be set forth herein.
Smith filed a lengthy brief containing many assignments of error which have been consolidated, restated, and renumbered as follows: (1) The trial court erred in allowing exhibits 4 and 6 to be admitted into evidence; (2) the trial court erred in allowing exhibit 9 to be admitted into evidence; (3) the trial court erred in allowing Spizzirri to testify about exhibit 7; (4) the trial court erred in allowing the hearsay testimony of Ryan, Dick, and James; (5) there was insufficient evidence for Smith's convictions; (6) the trial court erred in failing to order a new trial after the medical report on A.L. was not timely disclosed, in violation of Brady v. Maryland
An appellate court reviews a trial court's ruling on authentication for abuse of discretion.
An appellate court reviews a trial court's allowance of leading questions for an abuse of discretion.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by such rules; judicial discretion is involved only
When reviewing the sufficiency of the evidence to sustain a criminal conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or reweigh the evidence; such matters are for the finder of fact.
The determination of whether the procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.
Whether cumulative error deprived a criminal defendant of his or her Sixth Amendment right to a trial by an impartial jury presents a question of law to be reviewed de novo.
Statutory interpretation is a question of law that an appellate court resolves independently of the court below.
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.
We affirm all of Smith's convictions as listed above. We remand for resentencing in accordance with this opinion.
We first address Smith's contention that the trial court erred in allowing
Exhibits 4 through 6 are purported to be photographs of the scars on S.D.'s thighs. The process of authentication for each of the exhibits was similar. The State would start by asking S.D. if she recognized the exhibit, to which S.D. would respond, "[t]hat's me" or "[m]y leg." The State would then ask a leading question to more specifically identify what the photograph portrayed. For example, the State asked S.D., "Is that, particularly, your right leg...?" and "[I]s that a picture of your inner part of your leg?" S.D. affirmed each time. The State then asked whether the exhibit "fairly and accurately reflect the scars from the cutting that [Smith] inflicted on you?" S.D. indicated that each exhibit did. Each time the State offered one of those three exhibits into evidence, Smith objected on form and foundation grounds. Smith's objections were overruled.
We need not consider whether the trial court erred in admitting exhibit 5, because appellate review is limited to those errors specifically assigned as error in an appeal to a higher appellate court.
We acknowledge that in authenticating the exhibits, some of the State's questions were leading questions, which suggested to S.D. the answer desired of her. Thus, we entertain Smith's argument that exhibits 4 and 6 were improperly identified through leading questions and that as a result, there was not sufficient foundation evidence for their admission.
Whether there is sufficient foundation evidence for the admission of physical evidence must necessarily be determined by the trial court on a case-by-case basis.
Our law is well settled that a trial court in a criminal case has a large, though not unlimited, discretion in granting or refusing permission to ask a witness a leading question.
We find no abuse of discretion here. The concern with the use of leading questions during direct examination is that a witness already giving favorable testimony to a party may testify to facts suggested to her, rather than those personally known by her.
A document is properly authenticated by evidence sufficient to support a finding that the matter in question is what its proponent claims.
We next address Smith's argument that the court erred in admitting exhibit 9 into evidence. Exhibit 9 is purported to be a copy of Smith's birth certificate issued by the State of Mississippi. The document is signed by a state health officer and certified to be a true and correct copy of the certificate on file with the State of Mississippi. It contains a warning: "A REPRODUCTION OF THIS DOCUMENT RENDERS IT VOID AND INVALID. DO NOT ACCEPT UNLESS EMBOSSED SEAL OF THE MISSISSIPPI STATE BOARD OF HEALTH IS PRESENT." The document contains the seal of Mississippi, as well as a seal of the Mississippi Board of Health. The parties disagree about whether the seal of the Mississippi Board of Health is embossed. In addition to exhibit 9, the State established Smith's birth date and age through two other witnesses.
At trial, Smith objected to exhibit 9's admission on authentication and certification grounds. On appeal, Smith argues that the trial court erred in allowing exhibit 9 into evidence, claiming that the requirements of rule 902
Rule 901,
Rule 902(1) provides in relevant part that "[a] document bearing a seal purporting to be that of the United States, or of
Smith argues that exhibit 9 does not meet rule 902(1), because the document itself says that it should not be accepted "unless embossed seal of the Mississippi State Board of Health is present," and he claims that the Board of Health seal is not embossed. The State argues that the seal does not need to be embossed, but claims that "a cursory tactile examination of the document shows the [seal is] indeed embossed."
Even if we found that the document was admitted in error, it would be harmless error. In a harmless error review, an appellate court looks at the evidence upon which the jury rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the guilty verdict rendered in the trial was surely unattributable to the error.
Smith also argues that Spizzirri's testimony on the photo albums should not have been admitted. First, Smith argues that Spizzirri should not have been allowed to give "opinion testimony" about whether or not a contact sheet on the photo album was "all bubbled" or had been lifted up, because the State did not establish that she was an expert on contact sheets. Second, Smith claims that Spizzirri's testimony was improper bolstering of S.D.'s credibility. Both of these arguments are without merit.
Rule 701
Spizzirri testified that she had "personal experience with [that] type of a photo album," with "peeling away the clear sheet" and "putting a photo onto the sticky backing." She testified that in the past, when
We note that Spizzirri was not actually permitted to testify on direct examination that she believed photographs had been removed from the photo album, though the State's questions certainly created that inference. Even so, such inference was rationally based on Spizzirri's experiences with peel-back-and-stick photo albums, and Spizzirri's testimony was helpful to the jury, who may not have had experience with peel-back-and-stick photo albums. We conclude that Spizzirri's testimony was proper lay witness testimony under rule 701.
Smith also claims that Spizzirri's testimony regarding the photo album vouched for the character of S.D., in violation of Neb. Evid. R. 608, Neb. Rev. Stat. § 27-608 (Reissue 2008). We do not see, and Smith does not explain, how this statute applies to Spizzirri's testimony.
Rule 608 provides:
Subsection (1) does not apply, because the credibility of S.D. was neither attacked nor supported by Spizzirri's testimony in the form of reputation or opinion testimony. Subsection (2) does not apply, because Spizzirri's testimony about the photo album was not extrinsic evidence of specific instances of S.D.'s conduct.
It seems Smith is construing rule 608 as prohibiting a party from eliciting testimony from one witness to corroborate the testimony of another. There is no such rule. Smith's argument is without merit. We conclude that Spizzirri's testimony about the photo album was properly admitted.
Smith argues that the trial court erred in allowing the hearsay testimony of Ryan, Dick, and James as prior consistent statements.
We first note that this issue was properly preserved for appeal by Smith's hearsay objections. The State argues that Smith waived this issue because he did not object on the specific basis that the statements were not prior consistent statements. The State claims that "there are so many components to the hearsay rule, and so many exceptions to it that a generic objection of `hearsay' does not fit the `specific grounds' requirement."
We have never held that an objecting party must anticipate and specify every hearsay exclusion or exception potentially applicable in order to preserve his or her objection. We conclude that Smith's hearsay objection at trial properly preserved the issue for appeal; thus, we address the merits of Smith's arguments.
Rule 801(4)(a)(ii), often referred to as the "prior consistent statement" exclusion, provides that a statement is not hearsay if "[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive."
The court explicitly allowed Ryan's testimony of S.D.'s out-of-court statement and James' testimony of A.L.'s out-of-court statement into evidence as prior consistent statements. Dick's statement that she understood the poem to be about rape was not included in that finding. The record does not show under which hearsay exclusion or exception Dick's testimony was allowed, but Smith's hearsay objections were nevertheless overruled.
Smith concedes that S.D. and A.L. were at trial and subject to cross-examination. Smith also concedes that he recently charged S.D. and A.L. with fabricating their allegations against him. Nevertheless, he argues that certain testimony of Ryan, Dick, and James should not have been admissible per rule 801(4)(a)(ii) because it was not consistent with the testimony of S.D. and A.L. at trial.
The main problem with Smith's prior-consistent-statement analysis is that he compares for consistency the testimony of Ryan, Dick, and James with the testimony of S.D. and A.L. regarding the context in which the out-of-court statements were made. Smith should instead compare the out-of-court statements made by S.D. and A.L. with the in-court statements that Smith charged S.D. and A.L. with recently fabricating.
For example, with regard to Ryan's testimony, Smith is distracted by the witnesses' inconsistent testimony about the location and timing of the conversation at issue. Ryan testified that S.D. made the statement "he touches me" after Ryan dropped S.D. off after a date. In contrast, S.D. testified that the conversation occurred while she was babysitting with Ryan. Smith contends this discrepancy makes Ryan's testimony inadmissible.
But applying rule 801(4)(a)(ii), S.D.'s statement to Ryan was not hearsay. S.D. testified at trial and was subject to cross-examination concerning her statement to Ryan, "he touches me." That statement was consistent with S.D.'s testimony at trial and was offered to rebut Smith's charge that S.D. recently fabricated her sexual assault allegations against Smith.
With respect to James' testimony, Smith focuses on James' and A.L.'s conflicting accounts of who read A.L.'s letter. James testified that A.L. read the letter to her, and A.L. testified that James read the
The fact that the witnesses' memories conflict as to when, where, or how statements were made may be relevant to the credibility of the witnesses' testimony, but it is not relevant for purposes of analyzing whether an out-of-court statement is a prior consistent statement under rule 801(4)(a)(ii). We conclude that the statements of S.D. and A.L., testified to by Ryan and James respectively, were prior consistent statements properly admitted at trial.
As for Dick's statement that she understood S.D.'s poem to be about Smith's raping S.D., we first acknowledge that such testimony would be hearsay if not for rule 801(4)(a)(ii). In essence, Dick testified to S.D.'s out-of-court written assertion that Smith raped her.
Smith argues that this assertion was not a prior consistent statement, because, he claims, the poem was the declarant, was not produced at trial, and thus was not subject to cross-examination. Smith also makes this argument with respect to A.L.'s letter. Both arguments are without merit.
Rule 801(2) states that a "declarant is a person who makes a statement," and rule 801(1) says that a "statement is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by him as an assertion." Dick's challenged testimony involves statements contained within the poem. S.D. wrote the poem. As the poem's author, S.D. is clearly the declarant. Likewise, A.L. was clearly the declarant of the statements contained within the letter she wrote. Both S.D. and A.L. were indisputably at trial and subject to cross-examination. Smith's arguments that rule 801(4)(a)(ii) does not apply because the documents were the declarants and not available for cross-examination is without merit.
Smith also argues that Dick's testimony about the poem (that Dick understood it to be about Smith's raping S.D.) was inconsistent with S.D.'s in-court testimony, because S.D. did not use the word "rape" when S.D. described her poem. Instead, S.D. said the poem was very general and was about S.D.'s "hurting because someone kept hurting [her]." Although we think S.D.'s statement to Dick that Smith raped her is consistent with S.D.'s statement that someone hurt her, these two statements are not the ones rule 801(4)(a)(ii) requires us to compare.
To comport with rule 801(4)(a)(ii), the out-of-court statement must be consistent with the in-court testimony recently charged with being fabricated. Smith charged S.D. with fabricating her testimony that Smith sexually assaulted her. S.D.'s out-of-court statement that Smith raped her is consistent with her in-court testimony.
We turn to Smith's next assignment of error that there was insufficient evidence to sustain the verdict. Smith assigns as error and briefly mentions in his argument that there was insufficient evidence as to all counts. But to be considered by an appellate court, an appellant must both assign and specifically argue an alleged error.
Counts 10 through 12 are charges based on the three photographs that Smith allegedly took of S.D., which S.D. described at trial — one count per photograph. Since the photographs were not available at trial and do not have corresponding exhibit numbers, we will refer to the photographs as photographs "1," "2," and "3" for purposes of our analysis.
All three counts involve charges that Smith violated Neb. Rev. Stat. § 28-1463.03(1) (Reissue 2008), which makes it "unlawful for a person to knowingly make, publish, direct, create, provide, or in any manner generate any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers." Neb. Rev. Stat. § 28-1463.02(5)(e) (Reissue 2008) defines "[s]exually explicit conduct," in relevant part, as "erotic nudity," which means "the display of the human male or female genitals or pubic area, the human female breasts, or the developing breast area of the human female child, for the purpose of real or simulated overt sexual gratification or sexual stimulation of one or more of the persons involved."
To determine whether photographs were taken for the purpose of real or simulated overt sexual gratification or sexual stimulation, we consider the following factors from United States v. Dost
A visual depiction need not involve all these factors to be considered "erotic nudity."
Smith claims it was impossible for the jury to find beyond a reasonable doubt that the photographs Smith allegedly took of S.D. depicted erotic nudity, because the photographs were "not in existence" at trial.
The State argues in contrast that a defendant can be found guilty of creating or possessing child pornography beyond a reasonable doubt even without the actual depictions in evidence. In support of its position, the State cites three federal cases, all of which rely on U.S. v. Villard.
In Villard, the defendant filed a motion for judgment of acquittal after a jury convicted him of violating the federal exploitation of children statute, see 18 U.S.C. § 2251 (2012). In the lower court's order granting the motion, it indicated that it may be possible to prove beyond a reasonable doubt that the defendant violated § 2251, even without the actual depiction at issue.
The circumstantial evidence in Villard included a surveillance tape, which showed the defendant and another man looking at the depiction at issue and commenting on it. At one point, the other man said to the defendant, "`I wonder if he's asleep. He's three quarters hard. Maybe he sleeps in the buff like that. He's pretty hairy, though, God but not just much under the arm.'"
After the jury in Villard convicted the defendant based on the evidence above, the lower court granted the defendant's motion for judgment of acquittal. On appeal, the Third Circuit was able to find only two of the Dost factors with any certainty.
We find it clear from the reasoning in Villard and similar cases that a defendant can be found guilty of creating or possessing child pornography beyond a
The question we must answer is whether, viewing the evidence in a light most favorable to the State, any rational trier of fact could have found that Smith created a depiction of "erotic nudity" involving a child, in violation of § 28-1463.02. This requires a two-step analysis.
S.D. testified that when she was 13 years old, Smith took off her clothes, put her on the bed, and took photographs of her. For one photograph, Smith grabbed S.D.'s knees, put them in the air, and took a picture of her vaginal area (photograph 1). Another photograph was of S.D. on her hands and knees with her "butt up in the air" (photograph 2). S.D. testified that her vaginal area was visible in photograph 2. S.D. said a third photograph was taken of her from her neck down while she was on her back (photograph 3). S.D. did not say that photograph 3 displayed her vaginal area. S.D. testified that Smith showed her the photographs and that the photographs reflected what she had described Smith took of her.
Based on S.D.'s testimony, we conclude that a rational trier of fact could find that the photographs displayed S.D.'s genital area. S.D. testified as to the contents of the photographs. With respect to photographs 1 and 2, S.D. testified that they displayed her vaginal area.
Although S.D. did not specifically describe the individual body parts depicted in photograph 3 the way she did with respect to photographs 1 and 2, we conclude that a rational jury could infer from S.D.'s testimony that at least her breasts, and possibly her genitals or pubic area, were depicted in photograph 3. This reasonable inference is supported by S.D.'s testimony that Smith took off her clothes and took a photograph of her from her neck down; that at the time Smith took the photographs of S.D., he had a history of sexually assaulting her and continued to do so after the photographs were taken;
We also conclude that a rational trier of fact could find that the photographs were created for the purpose of sexual gratification or sexual stimulation.
We consider the Dost factors outlined above, which are primarily helpful in determining from the depiction whether it was created for sexual gratification or sexual stimulation. But we have also held that whether the photograph was created for the purpose of sexual gratification or stimulation must be determined, not only from the depiction, but from the motive of the persons generating it.
For example, the jury could consider the context in which the photographs were alleged to have been taken.
Additionally, the photographs meet many of the Dost factors. Photographs 1 and 2 meet, at least, factors 2 through 4 and 6. Both photographs were taken while S.D. was lying on the bed, a place generally associated with sexual activity.
Viewing the evidence in the light most favorable to the State, we conclude that a rational jury could find beyond a reasonable doubt that Smith took the photographs for the purpose of his own overt sexual gratification or sexual stimulation in violation of § 28-1463.03. Finding both parts of the "erotic nudity" analysis met, we affirm Smith's convictions on counts 10 through 12.
Next, Smith asserts that the trial court erred in failing to order a new trial, as to all counts, after the medical report on A.L. was not timely disclosed, which Smith alleges was in violation of Brady v. Maryland
Under Brady, the nondisclosure by the prosecution of material evidence favorable to the defendant, requested by the defendant, violates due process, irrespective of the good faith or bad faith
However, our review is not complete. In Nebraska, discovery in criminal cases is also governed by statute, and we have said that § 29-1912 exacts more than the constitutional minimum.
We do not determine whether the timing of the disclosure here violated § 29-1912, because we find that Smith waived his rights under that statute when he failed to request a continuance. Smith's main complaint is that, had exhibit 25 been disclosed sooner, Smith "would have been able to better prepare for the cross examinations of both [A.L.] and ... Haney as well as aid in the preparation of ... McFadden."
Smith makes several arguments that Haney's testimony about exhibit 25 should not have been admitted. But his arguments overlap and are scattered. Thus, in this section, we address Smith's complaints about Haney as we understand them, to the extent such issue has not already been addressed.
One of Smith's complaints is that the trial court erred in endorsing Haney as a witness 3 months before the trial began. On February 24, 2014, the State moved to endorse additional witnesses, including Haney. On March 3, a hearing was held, and Smith's counsel objected to the State's motion on the grounds that it was the State's sixth change to the complaint, trial was scheduled to occur on March 18, and Smith's counsel did not know in what capacity Haney would be testifying. The court granted the State's motion, requiring the State to submit an affidavit documenting discovery materials provided to Smith related to Haney. In its order, the court stated, "[I]f [Smith] needs additional time to conduct further discovery, a continuance may be requested." Smith availed himself of that option and waived his right to a speedy trial. Trial began June 3.
Neb. Rev. Stat. § 29-1602 (Reissue 2008) generally requires the prosecution to endorse the names of all known witnesses in the information at the time it is filed, but permits the endorsement of additional witnesses up to and including 30 days prior to trial. Additionally, we have said that a trial court, in the exercise of its discretion, may permit additional witnesses to be endorsed within the 30 days before
The trial court offered and granted Smith a continuance. The trial began on June 3, 2014, which made the State's motion to endorse additional witnesses more than 90 days prior to trial. We conclude that Smith was not prejudiced as a result of the endorsement, and accordingly, the trial court did not err in endorsing Haney.
Smith seems to think that the trial court's endorsement of Haney was somehow related to the sudden emergence of exhibit 25 at trial and somehow caused Haney's unanticipated testimony that exhibit 25 did not exonerate Smith. However, it is clear from the record that exhibit 25 did not come to surface until the third day of trial, because Miller inadvertently kept it in his personal file. Thus, at the time of Haney's endorsement, neither the court nor the State anticipated that Haney would testify about exhibit 25. Smith's argument is without merit.
Smith also claims that the trial court erred in allowing Haney to provide an expert opinion about exhibit 25, because it did not require the articles on which Haney based her opinion to be vetted under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.
Under Daubert and Schafersman v. Agland Coop,
But to sufficiently call specialized knowledge into question under Daubert and Schafersman is to object with enough specificity so that the court understands what is being challenged.
Normally, a challenge to the admissibility of evidence under Daubert and Schafersman should take the form of a concise pretrial motion.
Smith, in his brief on appeal, does not identify any particular factor he deems to
Moreover, although Smith claims the articles that Haney relied on in forming her opinion should have been subjected to Daubert standards, his true grievance concerns Haney's opinion that a normal anal/genital examination neither confirms nor excludes the possibility of sexual abuse. When Haney testified to that opinion at trial, Smith did not object. Failure to make a timely objection waives the right to assert prejudicial error on appeal.
In Wamsley v. State,
Smith claims the trial court committed "copious errors including those aforementioned."
But 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.
Smith's argument that cumulative error deprived him of his right to a fair trial is without merit. Although we avoided the question of whether Smith's birth certificate was properly authenticated, we determined that, regardless of error, its admission would be harmless. We determined that all of Smith's other arguments concerning trial errors are without merit. Thus, there are not multiple trial errors to aggregate.
We turn lastly to sentencing issues, beginning with Smith's assignment of error that the trial court erred in finding Smith's prior conviction was properly authenticated and certified for purposes of enhancing his sentences.
Smith's sexual assault of a child crimes were charged in the information as enhancements, to the effect that, if a prior similar conviction was proved, Smith would receive enhanced sentences for the sexual assault crimes of which he was convicted. Smith was convicted of three counts of
Smith argues that the trial court erred in finding that exhibit 37 was properly authenticated and certified for purposes of enhancement, taking the position that a seal of authenticity should be on every page of the document.
Smith is correct that neither § 28-319.01 nor § 28-320.01 provides any guidance as to what is required to prove a prior conviction. In contrast, for purposes of the habitual criminal statute, Neb. Rev. Stat. § 29-2222 (Reissue 2008) provides that "a duly authenticated copy of the former judgment and commitment, from any court in which such judgment and commitment was had, for any of such crimes formerly committed by the party so charged, shall be competent and prima facie evidence of such former judgment and commitment."
In construing a statute, a court must look at the statutory objective to be accomplished, the problem to be remedied, or the purpose to be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than a construction defeating the statutory purpose.
Accordingly, we hold that for purposes of §§ 28-319.01 and 28-320.01, a duly authenticated copy of the former judgment and commitment, from any court in which such judgment and commitment was had, for any of such crimes formerly committed by the party so charged, shall be competent and prima facie evidence of such former judgment and commitment.
Exhibit 37 is a self-authenticating document. Copies of judicial records that are certified by a deputy clerk for the clerk of the district court and impressed with the court's seal do not require extrinsic evidence of authenticity for admission under rule 902.
Smith argues that his case should be remanded for new sentencing because the trial court abused its discretion in imposing Smith's sentences, which were based on the court's erroneous impression that the counts with mandatory minimum sentences needed to be consecutive to all other counts.
Smith is correct that his sentencing was imposed by the trial court under a mistake of law. In imposing Smith's sentences, the trial judge said that he understood the case law to require him to impose the
The question is whether the trial court's mistake of law amounted to an abuse of discretion in imposing Smith's sentences when the judge expressly stated that "even if [consecutive imposition of mandatory minimum sentences] was not required, ... that would be appropriate given the time frames." The issue is unique, and we are unaware of any case law on point.
Nevertheless, we are concerned that the court's imposition of Smith's sentences on the convictions carrying mandatory minimum sentences may have seemed appropriate to the court because such sentences were ones thought to be required. This is not to say that the exact same sentences imposed with a full understanding of the law would be an abuse of discretion. Rather, we want to ensure that the court actually exercised its discretion and did not simply impose sentences that it thought were required. We therefore remand the cause for resentencing and do not reach Smith's argument that his sentences were excessive.
For the foregoing reasons, we affirm Smith's convictions. We remand the cause for resentencing in accordance with this opinion.
AFFIRMED AND REMANDED FOR RESENTENCING.
