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STATE v. MARTIN, A-11-268. (2011)

Court: Court of Appeals of Nebraska Number: inneco20111101253 Visitors: 19
Filed: Nov. 01, 2011
Latest Update: Nov. 01, 2011
Summary: MOORE, Judge. INTRODUCTION Following a jury trial, Stephen Martin was convicted in the district court for Hall County of a violation of the Sex Offender Registration Act (SORA). On appeal, Martin asserts that the court erred in allowing certain testimony into evidence and in not granting his motion for directed verdict. Pursuant to authority granted to this court under Neb. Ct. R. App. P. 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Because we find that the
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MOORE, Judge.

INTRODUCTION

Following a jury trial, Stephen Martin was convicted in the district court for Hall County of a violation of the Sex Offender Registration Act (SORA). On appeal, Martin asserts that the court erred in allowing certain testimony into evidence and in not granting his motion for directed verdict. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Because we find that the admission of the objectionable testimony was harmless and that the evidence was sufficient to support Martin's conviction, we affirm.

BACKGROUND

The State filed an information in the district court, alleging a violation of the SORA pursuant to Neb. Rev. Stat. § 29-4011 (Reissue 2008), a Class IV felony. Specifically, the State alleged that, on or between June 7 and August 1, 2009, Martin, a person subject to the SORA and residing in Hall County, failed to register with the sheriff of Hall County within 5 working days after an address change.

A jury trial was held on February 16, 2011. At the start of trial, the parties stipulated that Martin was subject to the provisions of the SORA because of certain prior convictions. The primary issue at trial was whether Martin was residing in Hall County at the time alleged in the information.

Susan Kennedy testified that she lived in the Riverbend Apartments in Grand Island, Nebraska, in Hall County during June and July 2009, having moved there on June 15. Kennedy met Martin at the apartment complex pool sometime in July, and they thereafter entered into a romantic relationship. Martin told Kennedy that he was living at Riverbend Apartments with his former sister-in-law, Pam Ginn, in order to help her out financially. On cross-examination, Kennedy testified that Martin also said he had a house in Oconto, Nebraska, that he shared with his father. Martin and Kennedy spent time together, and he took her to Oconto a couple of times where Kennedy met Martin's parents. Kennedy spent "a night or two" in Oconto with Martin at his father's home, and Martin would also stay with Kennedy in her apartment in Grand Island. Oconto is located in Custer County. Kennedy was not aware of Martin's having a job in June and July.

At some point, Kennedy conducted an Internet search for Martin's name. When the State asked whether the Internet search yielded any results, Martin's attorney objected on the grounds of relevance and "foundation as to relevance." The court overruled Martin's objection, and Kennedy replied that she "[g]oogled his name, and his picture and the sex offender status came up." The State inquired whether Martin made any comments regarding the search results, and Martin's attorney again objected on the grounds of relevance and "foundation as to relevance." The court overruled this objection as well, and Kennedy responded that Martin denied that he was the person referenced in the search result. According to Kennedy, Martin told her that the picture was of him, but it was his cousin who had the sex offender status. Martin's counsel objected a third time on the same grounds when the State inquired as to what questions Kennedy asked Martin about the search results. The court overruled Martin's objection and allowed Martin to have a continuing objection. Kennedy testified that Martin continued to deny he was a sex offender and told Kennedy he was going to contact his attorney to see why the "incorrect information" was on the Web site. Eventually, Kennedy contacted the Hall County sheriff's office and spoke with Investigator David Waskowiak. After Kennedy's conversation with Waskowiak, Martin continued to deny the information shown by Kennedy's Internet search. Kennedy and Martin were no longer dating at the time of trial.

Waskowiak testified that he received a call from Kennedy in October 2009, inquiring about Martin, after which Waskowiak began his own investigation. As part of his investigation, Waskowiak interviewed Ginn, as well as her two daughters. Through his investigation, Waskowiak determined that during June and July, Martin was not registered in Hall County but that he was registered in Custer County.

One of Ginn's daughters testified that she lived with Ginn and Martin at the Riverbend Apartments during June and July 2009. The other daughter testified that she began living with Ginn at the end of June 2009 and that Martin was already living there when she moved in. Both of the daughters testified that during this time, Martin spent most of his time during the day at the apartment and slept there most nights. Both of the daughters indicated that Martin would go to his father's house in Oconto on occasion, but that he would usually return to Grand Island to spend the night in the apartment. Martin kept personal items such as clothes, toiletries, movies, and a toolbox at the apartment in Grand Island and had a key to the apartment and the swimming pool entrance. At one point, Martin brought a kitten home to the apartment. Martin participated in activities with those living in the apartment, including swimming, shopping, and watching movies. One of the daughters testified that Martin told her he was out looking for a job, but she was unaware of him having a job in June and July.

Martin's father testified on Martin's behalf. At the time of trial, Martin's father had lived at his present address in Oconto for a little over 5 years. Martin's father testified that Martin had lived with him in the house in Oconto since February 2008. Martin's father testified that Martin has a big bedroom in the house, where Martin keeps personal items such as clothing, and that "pretty much" everything Martin owns is in that room. According to Martin's father, Martin would stay overnight outside of the house approximately once a week, would be gone for a few days visiting friends, and would then return and stay anywhere from a day to a week. Martin's father testified that he maintained a post office box in Oconto and that Martin's mail had been sent to that post office box for the previous 5 years. Martin's father claimed that Martin was working for a feedlot in Lexington or Kearney in the summer of 2009. On cross-examination, Martin's father testified that he remembered talking to Waskowiak, who had called looking for Martin, but Martin's father did not recall ever telling Waskowiak that he did not know where Martin was at the time.

Three individuals who are neighbors of Martin's father and/or acquaintances of Martin testified that Martin lives in Oconto with his father and that they saw Martin at his father's house in Oconto on various occasions during the summer of 2009.

Martin's mother testified that Martin was employed by her and Martin's stepfather in their tree business beginning in April 2009 after he was laid off at the feedlot and that he was working for them in the summer of 2009 at various locations in Nebraska, including near Oconto, Miller, Sumner, and Elm Creek. Martin's mother testified that he worked Monday through Friday from about 8 a.m. to about 5 p.m. According to Martin's mother, he lived in Oconto with his father in the summer of 2009. Martin's stepfather testified that he thought Martin had helped him dismantle some hog sheds in Elm Creek in 2009. According to Martin's stepfather, he and Martin's mother hired Martin in 2009 so they could help Martin pay his bills.

At the conclusion of the trial, Martin made a motion for directed verdict, arguing that the State did not prove that he was residing in Hall County. The district court overruled Martin's motion, and the jury subsequently returned a guilty verdict.

Following a sentencing hearing, the district court sentenced Martin to 270 days in jail with credit for 21 hours of time served. Martin subsequently perfected his appeal to this court.

ASSIGNMENTS OF ERROR

Martin asserts that the district court erred in (1) allowing Kennedy to testify that Martin lied to her about being on the sex offender registry and (2) not granting his motion for directed verdict.

STANDARD OF REVIEW

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. State v. Taylor, 282 Neb. 297, ___ N.W.2d ___ (2011). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. Id. The exercise of judicial discretion is implicit in the determinations of relevancy under Neb. Rev. Stat. § 27-403 (Reissue 2008), and a trial court's decisions regarding them will not be reversed absent an abuse of discretion. Id. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011).

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. State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).

ANALYSIS

Admission of Kennedy's Testimony.

Martin asserts that the district court erred in allowing Kennedy to testify that Martin lied to her about being on the sex offender registry. Martin argues that Kennedy's testimony was not relevant to the question of whether he was obligated to register in Hall County. He also argues that it is character evidence prohibited by Neb. Rev. Stat. § 27-404 (Reissue 2008). Martin did not object to the testimony in question on the basis that it was improper character evidence, and we will not consider this portion of his argument further. On appeal, a party may not assert a different ground for an objection to the admission of evidence than was offered to the trial court. State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).

Relevant evidence is that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. State v. Glazebrook, 282 Neb. 412, ___ N.W.2d ___ (2011); Neb. Rev. Stat. § 27-401 (Reissue 2008). The exercise of judicial discretion is implicit in determining the relevance of evidence, and a trial court's decision regarding relevance will not be reversed absent an abuse of discretion. State v. Glazebrook, supra. Under § 27-403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Kennedy's testimony regarding her Internet search and Martin's denial of being a registered sex offender is not particularly relevant to the question of where Martin resided, although it does provide some context for the investigation that led to the charges in this case. To the extent that the district court erred in admitting Kennedy's testimony, any such error was harmless. An erroneous admission of evidence is considered prejudicial to a criminal defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt. State v. Glazebrook, supra. Evidentiary error is harmless when improper admission of evidence did not materially influence the jury to reach a verdict adverse to substantial rights of the defendant. Id. 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, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).

In our review of the entire record in this case, we note that Kennedy's testimony regarding the Internet search and Martin's denial of being a registered sex offender was but a very small part of the overall testimony. Further, because Martin did not testify at trial, the jury was not presented with an opportunity to question his veracity due to Kennedy's testimony. Rather, the vast majority of the testimony concerned Martin's residence in June and July 2009, and the testimony came from individuals other than Martin. The evidence supports the conclusion that Martin was residing in Grand Island during that timeframe such that the guilty verdict for failing to register in Hall County was surely unattributable to any error in allowing Kennedy's testimony. We conclude that any error in the admission of Kennedy's testimony was not prejudicial. State v. Duncan, supra. This assignment of error is without merit.

Motion for Directed Verdict.

Martin asserts that the district court erred in not granting his motion for directed verdict.

At the time of Martin's prosecution, Neb. Rev. Stat. § 29-4004(3) (Reissue 2008) provided:

Any person required to register under the act shall inform the sheriff of the county in which he or she resides, in writing, if he or she has a new address in a different county in this state within five working days after the address change. . . . The person shall report to the county sheriff of his or her new county of residence and register with such county sheriff within five working days after the address change.

Martin was charged under § 29-4011 of a violation of his obligation under the SORA toregister in Hall County. It is undisputed that Martin was subject to the provisions of the SORA by virtue of certain prior convictions, that he was registered in Custer County, and that he had not registered in Hall County. Thus, the question before the jury was whether Martin was residing in Hall County in the summer of 2009. We note that the SORA has since been amended to require registration in connection with new addresses, temporary domiciles, and habitual living locations and that the phrases "temporary domicile" and "habitual living location" have been statutorily defined in connection with those amendments. See Neb. Rev. Stat. § 29-4001.01 (Cum. Supp. 2010). However, those amendments were not in effect at the time of Martin's prosecution.

There was conflicting evidence at trial as to whether Martin resided in Hall or Custer County in June and July 2009. The jury chose to believe the witnesses who testified that Martin was living in the Riverbend Apartments in Grand Island during the relevant timeframe, and this court, in reviewing criminal convictions, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. See State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011). Because the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction, the district court did not err in failing to grant Martin's motion for directed verdict.

CONCLUSION

We conclude that any error by the district court in allowing testimony concerning Martin's denial of being a registered sex offender was harmless and that there was sufficient evidence to support his conviction for failure to register under the SORA.

AFFIRMED.

Source:  Leagle

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