State v. Sutton
| Decision Date | 20 November 2007 |
| Docket Number | No. A-06-1297.,A-06-1297. |
| Citation | 16 Neb. App. 185,741 N.W.2d 713 |
| Parties | STATE of Nebraska, Appellee v. William P. SUTTON, Appellant. |
| Court | Nebraska Court of Appeals |
Paul Wess for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
William P. Sutton was convicted in the district court for Sheridan County of first degree sexual assault, second degree assault, and use of a weapon to commit a felony. Sutton appeals his convictions, arguing that the trial court erred in allowing the State to present testimony concerning a prior bad act. Based on the reasons that follow, we reverse, and remand for a new trial.
On March 24, 2006, an information was filed in the district court for Sheridan County, charging Sutton with one count of first degree sexual assault in violation of Neb.Rev.Stat. § 28-319 (Reissue 1995), one count of second degree assault in violation of Neb.Rev.Stat. § 28-309 (Cum. Supp.2006), and one count of use of a weapon to commit a felony in violation of Neb.Rev.Stat. § 28-1205 (Reissue 1995). The charges arose out of allegations made by Sutton's girlfriend, Jennifer C., with whom he lived at the time. Sutton entered pleas of not guilty.
On July 10, 2006, the State filed a motion for hearing pursuant to Neb. Evid. R. 404, Neb.Rev.Stat. § 27-404 (Reissue 1995), based in its intent to offer prior bad act evidence. Specifically, the State wanted to present evidence pertaining to Sutton's prior conviction for third degree assault on Jennifer. The State asserted that the evidence was admissible to show proof of motive, opportunity, intent, and knowledge. On August 1, a pretrial evidentiary hearing was held on the State's motion. The State presented a certified copy of an information filed August 19, 2004, in the district court for Box Butte County charging Sutton with third degree assault and first degree false imprisonment. The State also offered a journal entry in regard to those charges, which journal entry stated that a plea agreement was reached and that Sutton pled guilty to the third degree assault charge and the State dismissed the false imprisonment charge. Jennifer testified at the evidentiary hearing. She testified that on June 19, 2004, she and Sutton lived together, and that after having a disagreement, Jennifer went to their apartment to get some clothes and intended to leave and stay overnight somewhere else. Jennifer testified that Sutton would not let her leave the apartment and that he got angry and hit her in the face with his fist, knocking her to the floor. She testified that when she tried to get up, Sutton kicked her in the face. Jennifer testified that during this time, Sutton was telling her that she was not going to leave. She testified that once she got up off the floor, Sutton started hitting her with the belt he had been wearing. Jennifer testified that she eventually was able to dial the 911 emergency dispatch service and that the police arrived shortly thereafter and arrested Sutton.
On September 5, 2006, the trial court entered an order finding that the State had proved Sutton's prior bad act by clear and convincing evidence and that such act had independent relevance. Therefore, the trial court granted the State's motion to present rule 404 evidence.
On September 13, 2006, a jury trial commenced. Jennifer testified that in January 2006, she and Sutton lived together in Rushville, Nebraska, along with Jennifer's child and Sutton's two children. Sutton and Jennifer do not have any children together. Jennifer testified that on January 14, she and Sutton both agreed to end their relationship. Jennifer told Sutton that he and his two children would need to find someplace else to live. Jennifer testified that Sutton wanted to continue living with Jennifer until the end of the school year, but that she did not agree to that arrangement. Jennifer testified that around 7 p.m., Sutton left the residence and went to a bar. Between 7 and 7:30 p.m., Jennifer and her child went to the bar where Sutton was located and Jennifer gave Sutton his car keys. She told him that she was going out of town, that there was no one at their house and the door was locked, and that she did not know where Sutton's two children were. Jennifer and her child then drove to Jennifer's mother's house in Pine Ridge, South Dakota. Jennifer testified that after talking with her mother, she left her mother's house and met a friend in Pine Ridge. Jennifer testified that she returned to her mother's house between 1:30 and 2 a.m. and lay down for awhile. She testified that she later decided it was safe to return to her home in Rushville and that she arrived at her house between 5 and 5:30 a.m. on January 15. Jennifer was asked why it would not be safe to go home, to which she replied, "Because of what was said and that I didn't know how [Sutton] was going to react or anything." Jennifer testified that when she arrived home, she went inside the house and walked through all the rooms to make sure that Sutton was not there. Jennifer testified that she then lay down on the couch in the living room to sleep and that sometime later, she opened her eyes and Sutton was standing over her, asking her where his children were. Jennifer testified that she believed Sutton had been drinking alcohol, based on his stance and his speech. She testified that Sutton asked her repeatedly where his children were and that she responded that she did not know. Jennifer testified that Sutton then began hitting her with the handle of a screwdriver while continuing to ask her where his children were. She testified that Sutton also told her that he would give her a reason to leave. Jennifer testified that he then took off the belt he was wearing and started hitting her with it. Jennifer testified that after hitting her multiple times with the belt, Sutton told her to go into the bedroom. She testified that she told Sutton "no," to which he responded that he was going to continue hitting her if she did not go into the bedroom. Jennifer testified that she went into the bedroom and sat at the edge of the bed. She testified that Sutton next told her to take her clothes off and that when she refused, Sutton told her he was going to hurt her. Jennifer testified that she took her clothes off and that Sutton pushed her down on the bed and had sexual intercourse with her without her consent. Jennifer testified that when Sutton was done forcing himself on her, he fell asleep, at which time Jennifer got dressed and went to the police station. She testified that at the police station, she told an officer what had happened and made a written statement and that the officer then took her to a hospital, where a rape kit examination was performed.
During cross-examination of Jennifer, Sutton's counsel asked her about her and Sutton's decision to breakup on January 14, 2006. The following exchange occurred:
Q. Okay. Now, you had testified earlier that you and ... Sutton had agreed to go your separate ways, correct?
A. Yes.
Q. And at that point it was a mutual agreement to end your relationship; is that correct?
A. Yes.
Q. And it was an amicable breakup?
A. Yes, we both agreed on it.
Q. In fact, you agreed thereafter you would remain friends; is that correct?
A. Yes, as far as I was concerned.
In response to defense counsel's questions on cross-examination, the State asked Jennifer the following questions on redirect examination: At that point, Sutton's counsel objected based on relevance and rule 404 evidence. The trial court overruled the objection and allowed the line of questioning to continue. Sutton's counsel then asked for and was given a continuing objection. Jennifer further explained that the prior assault happened 1½ to 2 years earlier, that she and Sutton were living together at the time, that Sutton had been drinking on the night the incident occurred, and that Sutton hit her with his belt. Jennifer testified that Sutton became angry when he discovered that she had gone to her and Sutton's apartment to get some clothes because she intended to stay overnight at a friend's house. She further testified that the police were called and that Sutton was arrested.
In addition to Jennifer's testimony, the State's evidence included testimony from the police officer whom Jennifer spoke to at the police station on January 15, 2006, the nurse and doctor who examined Jennifer and performed the rape kit at the hospital, and Jennifer's mother. Sutton did not present any evidence.
At the end of trial, the jury found Sutton guilty on all three charges. The trial court sentenced Sutton to 10 to 20 years' imprisonment on the first degree sexual assault conviction, 2 to 5 years' imprisonment on the second degree assault conviction, and 2 to 5 years' imprisonment on the use of a weapon to commit a felony conviction. The sentences were ordered to run consecutively.
Sutton assigns that the trial court erred in failing to sustain his objections to the State's introduction of prior bad act evidence.
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. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007); State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006). 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. State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004); State v. Harris, 263 Neb. 331, 640 N.W.2d 24 ...
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