HEAVICAN, C.J.
Defendant, Kenneth C. Fleming, was convicted of two counts of first degree sexual assault of a child. He was sentenced to 20 to 40 years' imprisonment on each count, with the sentences to run consecutively. Fleming appeals. We affirm.
The convictions in this case arise from sexual assault allegations made against Fleming by his stepdaughter, F.K., and his stepniece, A.S. Fleming was married to T.F. in 2006. At the time of the marriage, T.F. had three children from previous relationships, including F.K. A fourth child was born to Fleming and T.F. during the marriage. In March 2006, the family moved from Holdrege, Nebraska, to Kearney, Nebraska, due to a job opportunity for Fleming. In Kearney, the family lived in several residences, including two trailer homes and a single-family home. For nearly all the time at issue, the family lived at this latter location.
At the time of the move to Kearney, T.F. did not work out-side of the home. However, in 2008, T.F. did obtain employment outside of the home. Fleming worked during the day, and T.F. worked at night. While T.F. was at work, Fleming stayed home with the children.
The single-family home in Kearney was usually filled with people. Besides the Flemings and their children, two family friends spent some time living in the home, followed by the family of Fleming's cousin, which included two children. Beyond those persons living in the home, the children of T.F.'s brother would occasionally visit the family in Kearney, and T.F. had a second job babysitting her nieces and nephews from that family. Moreover, when the family had lived in a prior residence in Kearney, Fleming's sister had lived with them for a time.
In November 2008, T.F. and the children moved to North Platte, Nebraska. Fleming remained in Kearney. In January 2009, F.K. reported to T.F. that Fleming had sexually assaulted her on various occasions while the family lived in Kearney. F.K. also stated that Fleming had sexually assaulted A.S. T.F. then contacted A.S. and A.S.' mother and father and eventually confirmed that Fleming had also assaulted A.S.
T.F. contacted North Platte law enforcement. Eventually, it was determined that the alleged assaults took place when F.K. lived in Kearney. Kearney law enforcement then initiated an investigation, which ended with the charges filed in this case.
At trial, both F.K. and A.S. testified that Fleming penetrated their vaginal areas with his finger, his tongue, and his penis and that he forced them to perform oral sex on him. Fleming testified and denied the allegations. The theory of his defense was that F.K. and A.S. made up their stories at the instigation of T.F.
On appeal, Fleming assigns that (1) trial counsel was ineffective in several particulars; (2) the State's information was insufficient, in violation of his due process rights; (3) the trial court erred in allowing the State's expert witness to testify regarding the credibility of the alleged victims and in overruling Fleming's motion for mistrial on this basis; (4) the trial court erred in allowing the State to use
We review a trial court's allowance of leading questions for an abuse of direction.
A motion to disqualify a trial judge on account of prejudice is addressed to the sound discretion of the trial court.
Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.
In his first assignment of error, Fleming assigns that his trial counsel was ineffective in that he (1) did not make himself available to Fleming, nor did he sufficiently communicate with Fleming; (2) refused to "gather and/or use" evidence and witnesses as directed by Fleming; (3) was not adequately prepared to use witnesses' inconsistent statements to impeach their live testimony; (4) refused to adequately address the motive of F.K., A.S., T.F., and others; (5) failed to adequately cross-examine F.K. and A.S.; (6) failed to file a motion to quash information; and (7) failed to file a motion to withdraw as counsel
A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. The determining factor is whether the record is sufficient to adequately review the question. If the matter has not been raised or ruled on at the trial court level and requires an evidentiary hearing, an appellate court will not address the matter on direct appeal.
In this case, both Fleming and the State agree that Fleming's claims are not cognizable on direct appeal. And we agree, with one exception, that we lack a record to determine whether trial counsel's representation was ineffective. We do, however, conclude that we can and will review Fleming's assertions with regard to the sufficiency of the information filed against him. We otherwise decline to reach on direct appeal Fleming's arguments regarding the ineffectiveness of his trial counsel.
In his second assignment of error, Fleming argues that the information against him was insufficient as it alleged the acts occurred between June 1 and November 25, 2008. Fleming argues that this time period is so broad as to violate his due process rights.
Fleming concedes that this court has held in State v. Martinez
As an initial matter, the State argues that Fleming failed to file a motion to quash or otherwise object to the information and thus has waived any objection that he might have. A review of the record supports this. However, Fleming also alleges that his trial counsel was ineffective in this particular. Thus, as was noted above, we will address this issue on direct appeal.
This court, as recently as January of this year, reiterated the rule it set out in Martinez,
Our reasoning in Martinez was sound, and we decline to revisit it. Fleming's second assignment of error is therefore without merit.
In his third assignment of error, Fleming argues that the district court erred in admitting the testimony of Barbara Sturgis, Ph.D., and in not granting his motion for mistrial as a result of Sturgis' testimony.
The purpose of Sturgis' testimony was to provide for the jury background concerning child victims and how they differ from adult victims. Fleming argues Sturgis' testimony that "kids can disclose with detail when they're disclosing what's happened to them" improperly bolstered the credibility of F.K. and A.S.
This court has previously approved of the use of the type of testimony given by Sturgis.
A reading of the entirety of Sturgis' testimony calls Fleming's argument into question. Sturgis was asked whether children could disclose with detail; she indicated they could, but that it "depends on what's happened to them." When asked to give an example, Sturgis stated that "kids can disclose with detail when they're disclosing what's happened to them." She then went on to testify that while children can disclose with detail, a child is less likely to tell all of the details to one person and instead will "talk about some of the things at some time and other of the things at others." In addition, Sturgis testified that children are capable of lying and that all of her observations were dependent on the child and his or her capabilities.
This case is distinguishable from State v. Doan,
Unlike Doan, in which the witness had interviewed the alleged victim and made a determination of whether she believed the victim, Sturgis acknowledged that she had never interviewed F.K. or A.S. and that she had not even viewed their interviews with law enforcement. Nothing in Sturgis' testimony was directed at these particular witnesses, but, rather, was a discussion of child witnesses in general. At no point did Sturgis opine on whether F.K. or A.S. had been sexually assaulted, nor did she opine
The district court did not err in admitting Sturgis' testimony and denying Fleming's motion for mistrial. Fleming's third assignment of error is without merit.
In his fourth assignment of error, Fleming contends that the district court erred in allowing the use of leading questions and photographs during F.K.'s testimony.
While acknowledging the discretion afforded to the district court in this matter, Fleming argues that such discretion was abused in this case. In particular, Fleming argues that "[t]he trial court's decision to allow [F.K.] to describe and identify the rooms where the alleged assault may have occurred preemptively struck down one of [Fleming's] means for attacking her credibility."
A review of the record, however, demonstrates that the district court did not abuse its discretion. F.K. was just 7 years old at the time of trial. Over the past few years, F.K. had lived in at least five residences. And over those years there was, as the State puts it, "a veritable legion of other relatives and/or friends living with them"
The district court did not abuse its discretion in allowing the use of leading questions and photographs during F.K.'s testimony. Fleming's fourth assignment of error is without merit.
In his fifth assignment of error, Fleming asserts, without authority, that the district court erred in conducting F.K.'s and A.S.' competence examinations before the jury. The State argues that there was no error, as child witnesses are presumed competent,
This issue has been considered in several jurisdictions. For example, the Pennsylvania Supreme Court has adopted a per se rule that child witnesses are to be examined for competence outside the presence of the jury.
The Colorado Supreme Court specifically rejected this per se rule in People v. Wittrein.
Similarly, the New Mexico Court of Appeals noted in State v. Manlove
Still other jurisdictions have concluded that it was not error, or in some instances was even preferable, to have the competency proceedings take place in the presence of the jury. These jurisdictions argue that this type of questioning "assists the jurors in evaluating independently the child's qualifications as a witness."
We believe that the best practice is for any hearings on the competency of child witnesses to take place outside the presence of the jury. However, the failure of the trial court to do so is not necessarily reversible error. Instead, an appellate court must consider whether the defendant was prejudiced by the trial court's actions. And we decline to find reversible error in this case.
We note that Fleming objected to F.K.'s examination taking place in the presence of the jury, but did not make the same objection when A.S. was later examined in the same manner. In performing the examination, the district court judge asked a number of general questions of the witnesses. During F.K.'s examination, she was questioned in part as follows:
Similar questions were asked and answered during the court's examination of A.S. At the conclusion of each witness' examination, the district court made no affirmative, explicit finding of competence, but simply allowed counsel to begin direct examination. We note also that neither F.K. nor A.S. were otherwise placed under oath when testifying; thus, the examination by the court essentially substituted as their oaths.
In addition, the jury was instructed by the district court judge as follows: "I am not permitted to comment on the evidence, and I have not intentionally done so. If it appears to you that I have commented on the evidence, during either the trial or the giving of these instructions, you must disregard such comment entirely." The jury was also instructed that it was "the sole judge[] of the credibility of the witnesses and the weight to be given to their testimony."
For the reasons noted above, we conclude that the district court did not err in allowing the witnesses to be examined for competency in the presence of the jury. As such, Fleming's fifth assignment of error is without merit.
In his sixth assignment of error, Fleming contends that the district court judge should have recused himself. The basis for the recusal request is that the judge "conducted himself in a biased and prejudice[d] manner against [Fleming]."
From a review of the briefs and argument, it appears that Fleming requested recusal because certain rulings went against him at trial. After a complete reading of the record in this case, however, it is clear that while the district court judge ruled against Fleming, he also made several rulings in Fleming's favor. Other than essentially complaining that the district court judge did not like him, Fleming points to nothing that would require the district court judge to recuse himself. The district court judge therefore did not abuse its discretion by declining to do so. Fleming's sixth assignment of error is without merit.
In his seventh assignment of error, Fleming contends that the district court erred in denying his motion for directed verdict and his renewed motion for directed verdict. And in his eighth assignment of error, Fleming contends there was insufficient evidence to support his conviction.
Fleming was charged with two counts of first degree sexual assault of a child.
As an initial matter, the record shows that both F.K. and A.S. were under 12 years of age at the time of the alleged sexual assault and that Fleming was over the age of 19. As to the alleged sexual assaults, F.K. testified that Fleming's "weiner and his hand and his mouth" touched her body and that "[m]y private and my hand and my mouth" touched Fleming's body. F.K. stated that Fleming "put his private in my private." F.K. indicated that "[h]e would have me on the floor, and he would put his private in my private and then start rubbing." F.K. also stated that she had to put her hand on his "private" and that "[i]f the white stuff didn't come out, he would want us to put our mouth on it." F.K. testified that she would do so. F.K. additionally testified that she witnessed Fleming "put his private... in [A.S.'] private."
In addition, A.S. testified that her "private touched [Fleming's] private" and also that her mouth touched Fleming's "private." A.S. also stated that Fleming "told [her] to sit on his face and he licked my private [with his tongue]" and that she did not have any clothes on over her "private" when that event occurred. In response to this testimony, A.S. stated that Fleming's tongue did not go "inside of [her] private." A.S. additionally testified that she witnessed F.K. "suck on it," referring to Fleming's "private."
The above evidence, when viewed in a light most favorable to the State, clearly supports the denial of Fleming's motions for directed verdict and also supports the guilty verdicts entered against Fleming for first degree sexual assault of a child. Fleming's seventh and eighth assignments of error are without merit.
In his ninth, and final, assignment of error, Fleming asserts that the sentences imposed upon him were excessive.
The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.
Fleming's primary argument seems to be centered on the following statement of the district court: "Although ... Fleming — and I understand your disagreement with whether you did anything wrong, the system, the jury disagrees with you. And you need to be and will be sentenced pursuant to what the jury determined occurred as opposed to what you think occurred." Fleming argues that this statement shows the district court sentenced him because of Fleming's "audacity in maintaining his innocence."
We do not read the district court's statement in that manner. Rather, we read the district court's statement as its recognition that while Fleming continued to assert his innocence, the jury disagreed and concluded that Fleming was guilty and that he would be sentenced accordingly.
Fleming was convicted of two counts of first degree sexual assault of a child, a Class IB felony,
Moreover, as is noted by the State, Fleming's minimum sentence is just 5 years more than the mandatory minimum for the crimes for which he was convicted. Both F.K. and A.S. have nightmares because of the abuse perpetrated by Fleming, as well as continuing emotional problems. The sentences imposed on Fleming were not excessive; the district court did not abuse its discretion in so sentencing Fleming. Fleming's final assignment of error is without merit.
The judgment and sentences of the district court are affirmed.
AFFIRMED.
WRIGHT, J., not participating.
