Cassel, J.
In this direct appeal, Peter Francis Draper challenges his convictions for intentional child abuse resulting in death and intentional child abuse resulting in serious bodily injury. He alleges that there was insufficient evidence to support either conviction, that improper opinion and rule 404
Draper was convicted of intentional child abuse resulting in death and intentional child abuse resulting in serious bodily injury in connection with the untimely death of his 2-year-old grandson. For the second time, Draper has appealed these convictions to this court. On the first direct appeal, after finding cumulative error concerning the testimony of Draper's wife. Nancy Draper (Nancy), we reversed Draper's convictions and remanded the cause for a new trial.
Joseph Rinehart, Jr. (Joe Jr.), died on April 30, 2012. He was 2 years old. At the time of his death, Joe Jr. lived with his
On April 30, 2012, at approximately 6 p.m., Joe Jr. was brought to the community hospital by Rinehart and Nancy after Rinehart noticed red in his vomit. He had shown flu-like symptoms — lethargy, diarrhea, and vomiting — for the last several days. At the hospital, the physician on call performed an examination and concluded that the child had a swollen stomach. The physician then ordered an x ray of his abdomen to determine the cause of the swelling. The x ray showed no signs of injuries but did show possible signs of constipation. At that point, the physician treated Joe Jr. for constipation and sent him home.
Approximately 1 hour after Joe Jr. was discharged from the hospital, Rinehart and Nancy brought him back to the emergency room. He was not breathing and had no heartbeat. The hospital staff attempted to revive him for 45 minutes but were never able to find a heartbeat. The treating physician declared Joe Jr.'s time of death at approximately 8:41 p.m.
Because the cause of death was unexplained, the hospital staff notified law enforcement of Joe Jr.'s death. Law enforcement officials then initiated a death investigation for the purpose of collecting information to determine the cause of death.
Law enforcement officials interviewed Rinehart, Draper, and Nancy late in the evening on April 30, 2012. At no point did Rinehart or Draper mention concerns of abuse. Draper did tell the interviewing officer that he believed the autopsy would show no signs of violence but may show signs of a rare "bone disease."
An autopsy was performed on Joe Jr., and the pathologist concluded that the cause of death was multiple blunt force trauma of the head, trunk, and extremities. The manner of death was ruled to be homicide. Post mortem CT scans showed old rib fractures, a recent skull fracture, a recent pelvic fracture, strain injuries on the arms and shoulders, and a ruptured bowel. The perforated bowel was likely associated with the recent pelvic fracture.
Medical experts determined that these injuries were likely the result of abuse or outer trauma, because Joe Jr. did not have any bone disease or other contributing disability. The pathologist who performed the autopsy additionally identified several bruises on the child's knees, elbows, shoulders, and thighs and dated several of them as less than 24 hours old.
After the autopsy, law enforcement officials interviewed Rinehart, Draper, and Nancy again and ultimately arrested all three. The lead investigator noted probable cause arose "based on the amount of injury on [Joe Jr.], [and] given the small size of the residence, ... it was [not] reasonable that there could be that amount of injury to a small child and any of the adults wouldn't have some knowledge that that was occurring." Once detained, Rinehart shared her belief that Draper had abused Joe Jr. She then entered a plea agreement with the State for a reduced charge in exchange for testifying against Draper at trial. Based on this information, Draper was subsequently charged with child abuse resulting in death, allegedly committed on or between April 23 and 30,
At trial, the State presented testimony of several health professionals to describe Joe Jr.'s various injuries and the possible sources of the injuries. None of the professionals were able to point to a particular individual who committed the abuse. Rinehart was the only witness to specifically testify to Draper's alleged physical abuse of Joe Jr. and to explain the events leading up to his death. Several other witnesses also testified to their interactions with Draper to confirm his control of the household and substantiate Rinehart's claims. Draper did not testify in his behalf or present any witnesses of his own.
Rinehart testified that after her husband left the home, Draper became the primary disciplinarian of her children. His disciplinary techniques supposedly included timeouts that could last from "a couple minutes to a couple hours to a couple of days." Rinehart's other children, aged 4 to 8 at the time of the trial, would be "disciplined" for crying and would be made to stand in a corner and sometimes would have to lift weights over their heads.
According to Rinehart, Draper generally handled Joe Jr. roughly — dragging him or yanking him by the arm. She also described specific instances of physical abuse of Joe Jr. by Draper. She testified that Draper once pushed Joe Jr. down repeatedly so that his head hit the floor until the child's head was swollen and his eyes were black and blue. On that occasion, Rinehart was not allowed to take Joe Jr. to the hospital, because Draper warned her that Child Protective Services would get involved.
Rinehart recalled one specific instance of abuse that she believed caused the injuries resulting in Joe Jr.'s death. She testified to have had witnessed Draper kneel on Joe Jr.'s abdomen with Joe Jr. on his back on the bed in the back bedroom. At the same time, Draper held Joe Jr.'s arms above his head and pressed one hand down on the child's chest. Apparently, Draper was attempting to get the child to say "`yes, sir,'" and held the child down in this position for several minutes while exerting more pressure with his hand or knee when the child did not immediately say what he wanted. Rinehart testified that it was within a couple days of this incident that Joe Jr. started to get sick and began to vomit a brown liquid.
After Rinehart described this incident she witnessed in the back bedroom, the State questioned her about the cause of a bruise above Joe Jr.'s ear that was discovered during the autopsy:
Draper timely objected to Rinehart's response as mere speculation. However, the court overruled this objection, noting that "she didn't testify your client did it. She said she thought it happened on the bed.... If she said [Draper] did something to cause it on the bed, then we — I'd reconsider your objection. But she didn't say that."
On cross-examination, Draper questioned Rinehart about missed opportunities to report the abuse of Joe Jr. earlier
The State's case heavily relied upon Rinehart's testimony, because she was the only one to tie Draper to the cause of Joe Jr.'s death. To corroborate Rinehart's fear of Draper, the State elicited testimony from two child development social workers and one Children and Family Services (CFS) initial assessment worker who had negative encounters with Draper when visiting the Draper residence.
Prosecution sought to elicit testimony from two child development social workers who had testified in the first case concerning the signs of child abuse they had witnessed at the Draper residence and their confrontation with Draper during an unscheduled child welfare checkup. Before either witness was called to the stand, however, Draper objected to their testimony as improper character evidence. The court considered this objection as a motion in limine outside the presence of the jury.
Draper was primarily concerned with the two social workers' testimony concerning the confrontation that occurred outside the Draper residence and believed it would be disproportionately prejudicial character evidence. When questioned about whether it was limited-purpose evidence, Draper suggested it would be difficult for the jury to follow such an instruction. The court was not convinced and allowed the testimony with the intent to give a limited-purpose instruction.
When the two social workers were called to the stand, they each testified to have witnessed Joe Jr. with one large bruise on his face with three long lines of bruising across it. The family was not able to provide them with any explanation for how Joe Jr. got the bruise. The social workers each separately explained that after that visit, they were very concerned with what they saw and that when they left the house that day, they were crying. The second social worker additionally testified to calling the child abuse hotline that evening.
When the second social worker to testify said that the social workers cried after leaving, Draper objected on the grounds of relevance and foundation. He had not objected earlier when the first social worker testified to leaving the house in tears. In ruling on his objection, the court allowed the testimony in over the objection, because it was "consistent with the evidence presented by the other witness that they cried."
The social workers also both testified about the unscheduled home visit where they had the altercation with Draper outside of his home. Draper timely renewed his objections in the presence of the jury, and the court gave the limiting instruction for the testimony that the jury was not to "consider it in relation to the character of... Draper, but [that they could] consider it for the limited purpose of other issues of what was going on in that house and who was in control in that house."
After not hearing from the family or about the status of their report for a few weeks, the social workers dropped by the Draper residence and one of them approached the fence surrounding the trailer home. Draper arrived at the gate before the social worker and would not let the social worker past the gate. He was very
On a separate occasion where a report on the Draper residence was made to the child abuse hotline, one CFS worker made an unscheduled visit to follow up on the report and assess the family. The CFS worker testified that he pulled up to the house in a car with a "`Department of Health and Human Services'" decal on the side and approached the fence surrounding the property. At that point, Draper stopped the CFS worker at the gate and asked him who he was and why he was there. When the CFS worker explained why he was there, Draper was upset and initially did not want to let him inside. Draper eventually let the CFS worker inside but would not allow him full access to the home — he allowed the worker to observe the rooms but only from behind him while he stood in front of the doorway.
The CFS worker testified that during his assessment, Draper "had control of answering the questions and really control of the whole conversation." He also explained that he was unable to speak with Rinehart, Draper, and Nancy separately — as was his practice — because Draper "didn't think ... that it was necessary. He had said that ... they had nothing to hide...." The CFS worker also testified that he had to instruct Draper to allow Rinehart to answer his questions, because Draper would interject with a comment before she could answer the questions.
When the State asked the CFS worker whether he had "any concerns with the way in which ... Draper treated [Rinehart] during the interview," Draper objected on relevance, foundation, and rule 404. Without discussion, the court overruled his objection. In answering the question, the CFS worker testified:
The court gave no limiting instruction to the CFS worker's testimony as it had given for the two social workers' testimony. At the end of the trial, the court did give the following written limiting instruction: "During the trial I called your attention to some evidence that was received for specified limited purposes; you must consider that evidence only for those limited purposes and for no other. The limited purpose evidence may not be considered by you as evidence of [Draper's] character." The last line of that instruction was specifically edited to address Draper's earlier objection that some testimony may be construed as evidence of his character.
The jury found Draper guilty on both counts — intentional child abuse resulting in death and intentional child abuse resulting in serious bodily injury. Intentional child abuse resulting in death is a Class IB
Draper alleges that the district court erred in (1) finding sufficient evidence to convict him of child abuse resulting in death beyond a reasonable doubt; (2) finding sufficient evidence to convict him of child abuse resulting in serious bodily injury beyond a reasonable doubt; (3) overruling his objection on the basis of speculation and foundation about lay testimony concerning the cause of an injury to the victim's ear; (4) allowing improper rule 404 evidence to be adduced concerning his character; (5) allowing testimony concerning the emotional reaction of witnesses without proper foundation, and over his relevancy objection; and (6) giving him excessive sentences.
In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by such rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
We will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
Draper alleges that there was insufficient evidence to support either of his convictions, because they were "based solely on the testimony of ... Rinehart," and that "her testimony was unbelievable insomuch as she made incredible claims
This argument contradicts our standard of review. In reviewing a sufficiency of the evidence claim, we do not pass on the credibility of witnesses — that is for the trier of fact.
In addition to Rinehart's testimony, the State presented testimony of seven medical experts, two law enforcement officials, and four social workers to corroborate Rinehart's testimony concerning the alleged abuse and Joe Jr.'s injuries. Though Rinehart was the only witness to specifically point to Draper as the perpetrator of the abuse, this alone does not make the evidence insufficient. In fact, Nebraska has a longstanding rule that a defendant's conviction of a crime may be based on uncorroborated testimony of a single witness.
Viewed in the light most favorable to the State, and without passing on the credibility of witnesses, we find that there was sufficient evidence for any rational juror to find Draper guilty beyond a reasonable doubt for the crimes for which he was convicted. Accordingly, Draper's assignment of error is without merit.
Draper assigns error to a few instances of testimony admitted over objection. We review them in the context of a 6-day trial and a record of over 700 pages. And whether they are viewed individually or collectively, we reach the same conclusion.
Draper assigns that the district court erred in allowing Rinehart to testify as to the cause of an injury above Joe Jr.'s ear. Rinehart admitted that she did not see the injury occur, and for that reason, Draper argues her statement that the injury was caused by the bed railing was mere speculation and improper lay opinion testimony.
Assuming without deciding that it was error for the district court to overrule Draper's objection to the testimony, the error was harmless. Harmless error review looks to the basis on which the jury actually 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 whether the actual guilty verdict rendered was surely unattributable to the error.
Here, the guilty verdict was surely unattributable to any error in admitting the evidence regarding the bruise above Joe Jr.'s ear. The State presented evidence of old rib fractures, a recent skull fracture, a recent pelvic fracture, strain injuries on the arms and shoulders, and a ruptured bowel to support its allegations of child
At trial, two social workers were allowed to testify to an interaction with Draper during an unscheduled visit where Draper was angry and hostile because he believed they had reported his family to Child Protective Services. Prior to their testimony, Draper had unsuccessfully argued that their testimony should be excluded as improper character evidence. A CFS worker also testified to a separate unscheduled visit to the Draper residence. Over Draper's relevance, foundation, and rule 404 objections, the CFS worker was allowed to testify as to his concern for a few comments Draper made about Rinehart as a mother.
Draper assigns that the district court erred in overruling his objections to the testimony of these three witnesses and argues that the testimony should have been excluded. He alleges that the testimony was not relevant, was unduly inflammatory and prejudicial, and could only have been offered to portray him as a "vi[le] and aggressive individual."
Again, assuming without deciding that it was error for the district court to overrule Draper's objections, the error was harmless. The guilty verdict was surely unattributable to any error in admitting the allegedly improper character evidence.
Draper also assigns that the district court erred in allowing the second social worker to testify, over his objection, that the social workers left the Draper residence and cried after one home visit. Assuming without deciding that it was error for the district court to overrule his objection, the error was harmless.
The first social worker had already testified to the same — that the social workers left the residence in tears — and Draper did not object at that time. Generally, erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact.
Lastly, Draper alleges that he received excessive sentences because the district court "essentially imposed a double life sentence."
In reviewing a sentence imposed within the statutory limits, an appellate court considers 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.
Draper argues that the sentences were "somewhat excessive" based on his current circumstances and his lack of a criminal record.
The evidence also clearly establishes the severity of the offense and the violence necessary to cause the fatal injuries to the 2-year-old child in this case. As there is no evidence that the district court failed to consider these factors in determining Draper's sentences, and given that, traditionally, a sentencing court is accorded very wide discretion in determining an appropriate sentence,
We conclude that the jury's verdicts were supported by the evidence, that any error in admitting testimony over Draper's objections was harmless, and that the district court's sentences did not constitute an abuse of discretion. For these reasons, we affirm the judgment of the district court.
AFFIRMED.
