State v. Madren

Decision Date23 June 2020
Docket NumberNo. A-19-240.,A-19-240.
Citation946 N.W.2d 465,28 Neb.App. 533
Parties STATE of Nebraska, appellee, v. James M. MADREN, appellant.
CourtNebraska Court of Appeals

28 Neb.App. 533
946 N.W.2d 465

STATE of Nebraska, appellee,
v.
James M. MADREN, appellant.

No. A-19-240.

Court of Appeals of Nebraska.

Filed June 23, 2020.


Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy, Lincoln, for appellee.

Moore, Chief Judge, and Arterburn and Welch, Judges.

Welch, Judge.

946 N.W.2d 471
28 Neb.App. 536

I. INTRODUCTION

James M. Madren was convicted by a jury of first degree sexual assault. Madren argues the trial court erred in failing to timely discharge an alternate juror, allowing evidence in contradiction to the court's previous in limine and sequestration orders, accepting the jury's verdict without sufficient evidence to convict him, and imposing an excessive sentence. He also argues that his counsel was constitutionally deficient and that an aggregate of error warrants a reversal. We affirm his conviction and sentence.

II. STATEMENT OF FACTS

Madren was charged with one count of first degree sexual assault, a Class II felony. Specifically, the State alleged that Madren, being a person 19 years of age or older, subjected L.O., a person at least 12

946 N.W.2d 472

years of age but less than 16 years of age, to sexual penetration. The evidence adduced at trial established that Madren was born in August 1981 and that L.O. was born in January 2003.

In May or June 2017, L.O.’s father allowed Madren, a longtime friend who needed a place to live, to temporarily reside with his family. After Madren moved into the family home, Madren and L.O. began spending time together, including watching movies or preparing meals for L.O. and her brothers. L.O. testified that Madren eventually asked her if she would be his girlfriend and that she agreed. L.O. also testified Madren began privately referring to L.O. as " ‘baby’ " and began hugging and kissing her and touching her thighs, legs, and shoulders over her clothes. L.O. testified that she and Madren had sexual intercourse during her freshman year of high school. At that time, L.O. was 14 years old and Madren

28 Neb.App. 537

was 36 years old. Madren moved out of the family home in November 2017.

The State also offered into evidence text messages between Madren and L.O., including pictures Madren sent to L.O. while he was out of town. After L.O.’s mother discovered the nature of L.O.’s relationship with Madren, including L.O.’s admission that she and Madren had sexual intercourse, the incidents were reported to the police and L.O. was eventually interviewed by staff at Project Harmony, a child advocacy center.

During the trial, over Madren's "foundation" objection, L.O.’s mother testified that after L.O. received counseling at Project Harmony, she sought treatment for L.O. at the recommendation of L.O.’s therapist, including having L.O. taken in for further evaluation and a medical evaluation that was in process. L.O.’s mother was allowed to testify about her observations of how L.O.’s condition affects L.O.’s daily life, which observations included that L.O. took long periods of time to process information; that L.O. struggled with comprehension at school; and that when confronted with questions, she would delay before answering due to her limitations in processing. L.O.’s mother was not allowed to testify as to any specific medical diagnosis for L.O.

Following L.O.’s mother's testimony, a brief recess was taken prior to L.O.’s testimony. During the recess, L.O.’s mother spoke with L.O. in the courthouse rotunda while the two embraced and cried. Due to concern expressed by Madren's counsel that the interaction was seen by some jurors, the judge informed the jury that during the recess, there was an interaction between L.O.’s mother and L.O. in the rotunda, and the court inquired if anyone had seen it. When certain jurors responded they had seen the interaction, the court inquired as to whether anything about the interaction would impact their decision on the evidence received in the courtroom as to which all the jurors stated it would not.

After closing arguments, the case was submitted to the jury. However, about 1 hour after the case was submitted to

28 Neb.App. 538

the jury, Madren's counsel advised the court that it had failed to discharge the alternate juror. As a result, the court informed the jury it had failed to remove the alternate juror, apprised the alternate juror that she was the alternate, and then dismissed her. The district court then instructed the jury to again refer to the instructions and asked the jury to start deliberating again "from scratch." The court stated it did not want to inquire to what extent the jury had communicated back and forth, but that because of the presence of the alternate, the jurors needed to begin deliberations as if they started then and without the alternate. Upon being asked if that made sense, the jurors responded affirmatively. After

946 N.W.2d 473

the jury was sent back to the jury room to deliberate, Madren's counsel moved for a mistrial on the basis of the court's delayed discharge of the alternate juror, which motion was overruled by the court. The jury convicted Madren of first degree sexual assault.

After the jury returned its verdict, the district court again addressed the jury regarding the alternate juror. Specifically, the court inquired whether the jury, in reaching the verdict, had considered any conversations or participation of the alternate juror while she was in the room, to which the jurors responded in the negative. Madren filed a motion for new trial, which included allegations that L.O. and her mother were observed crying and embracing following L.O.’s mother's testimony, these activities were viewed by the jury, and the viewing of said activities by members of the jury was unfairly prejudicial to Madren and prevented him from having a fair trial. Madren's motion for new trial was overruled. The district court sentenced Madren to 30 to 38 years’ imprisonment with credit for 358 days served.

III. ASSIGNMENTS OF ERROR

Madren's assignments of error, restated and renumbered, are as follows: (1) The court erred in overruling his motion for mistrial and motion for new trial on the court's delayed discharge of the alternate juror, (2) the court erred in failing

28 Neb.App. 539

to enforce its order in limine, (3) the court erred in failing to enforce its sequestration order, (4) the record contains insufficient evidence to convict Madren of violating Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2016), (5) Madren received ineffective assistance of counsel at trial in various ways, (6) the accumulation of errors requires a reversal of his conviction and a remand of the cause for new trial, and (7) the sentence imposed was excessive.

IV. STANDARD OF REVIEW

Decisions regarding motions for mistrial are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion. State v. Briggs , 303 Neb. 352, 929 N.W.2d 65 (2019). The standard of review for the denial of a motion for new trial is whether the trial court abused its discretion in denying the motion. Id.

To establish reversible error due to a violation of a sequestration order, a defendant must make a showing of prejudice. State v. Cottingham , 226 Neb. 270, 410 N.W.2d 498 (1987).

Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. State v. Briggs, supra. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

In reviewing a criminal conviction for 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. State v. Smith , 302 Neb. 154, 922 N.W.2d 444 (2019). The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

28 Neb.App. 540

have found the essential elements of the crime beyond a reasonable doubt. Id.

946 N.W.2d 474

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. Id.

Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State v. Mrza , 302 Neb. 931, 926 N.W.2d 79 (2019). In reviewing claims of ineffective assistance of counsel...

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