State v. Andersen

• Decision Date: 19 May 1989
• Docket Number: No. 87-1133,87-1133
• Citation: 232 Neb. 187,440 N.W.2d 203
• Parties: STATE of Nebraska, Appellee, v. Mark G. ANDERSEN, Appellant.
• Court: Nebraska Supreme Court

Page 203

440 N.W.2d 203

232 Neb. 187

STATE of Nebraska, Appellee, v. Mark G. ANDERSEN, Appellant.

No. 87-1133.

Supreme Court of Nebraska.

May 19, 1989.

Syllabus by the Court

1. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of the Supreme Court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

2. Speedy Trial: Waiver. A defendant may waive his right to a speedy trial under Neb.Rev.Stat. § 29-1207 (Reissue 1985) so long as he is properly advised of his right to a speedy trial and the waiver is entered voluntarily, knowingly, and intelligently.

3. Speedy Trial: Waiver: Proof. Once a trial court has accepted a defendant's waiver of his statutory right to a speedy trial, the burden of proving that the waiver is invalid is upon the defendant to show by a preponderance of the evidence that he did not voluntarily, knowingly, or intelligently waive his right to a speedy trial.

4. Speedy Trial: Waiver. A defendant may terminate his waiver of a speedy trial by filing a written request for trial with the clerk of the court in which the defendant is to be tried. The defendant shall serve a copy of the written request for trial upon the prosecutor. The clerk of the court, immediately upon receipt of the request for trial, shall also forward a copy of it, together with the date of filing, to the trial judge and to the prosecutor's office. From the date the defendant files his written request for trial, the 6-month period for the State to bring a defendant to trial provided in Neb.Rev.Stat. § 29-1207 (Reissue 1985) shall begin anew.

5. Constitutional Law: Statutes: Speedy Trial. The constitutional right to a speedy trial and the statutory implementation of that right under Neb.Rev.Stat. § 29-1207 (Reissue 1985) exist independently of each other. Determining whether a defendant's constitutional right to a speedy trial has been violated requires a balancing test in which courts must approach each case on an ad hoc basis. This balancing test involves four factors: (1) length of delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant. None of these four factors standing alone is a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, the factors are related and must be considered together with such other circumstances as may be relevant.

6. Constitutional Law: Speedy Trial. Under the provisions of the U.S. and Nebraska Constitutions, the right to a speedy trial is relative and depends upon circumstances; it is not denied where the delay is satisfactorily explained by the government and the defendant was brought to trial as soon as was reasonably possible.

7. Constitutional Law: Speedy Trial. The right to a speedy trial is different from other constitutional rights in that deprivation of the right is not per se prejudicial to the accused, and may work to the defendant's advantage.

8. Constitutional Law: Speedy Trial. Barring extraordinary circumstances, a 9. Motions to Suppress: Appeal and Error. In determining the correctness of a ruling on a motion to suppress, the Supreme Court will uphold a trial court's findings of fact unless those findings are clearly wrong. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, this court recognizes the trial court as the trier of fact and may take into consideration that the trial court has observed witnesses testifying regarding such motion.

defendant's constitutional right to a speedy trial is not denied when the defendant does not want a speedy trial.

10. Search and Seizure: Police Officers and Sheriffs: Evidence: Proof. If the State shows by a preponderance of the evidence that, disregarding any police misconduct in obtaining the evidence in question, the disputed or controversial evidence would have been produced or obtained by proper police investigation entirely independent of the illegal investigative conduct, then such evidence is admissible pursuant to the "inevitable discovery" doctrine. "Inevitable discovery" involves two lines of investigation, one tainted and the other lawful, but the lawful line of investigation is not consummated in production of evidence. However, by the requisite preponderance of evidence, the State must demonstrate that some lawful means of discovery, not an illegal investigation, would have produced the evidence in question, that is, such evidence inevitably would have been discovered without existence of any police misconduct.

11. Trial: Joinder: Appeal and Error. A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed in the absence of an abuse of discretion.

12. Trial: Joinder: Proof. The right to separate trials is statutory and depends upon a showing that prejudice will result from a joint trial. The defendant bears the burden of proving that prejudice will result from a joint trial.

13. Trial: Evidence: Appeal and Error. It is within the trial court's discretion to admit or exclude evidence, and such rulings will be upheld on appeal absent an abuse of discretion.

14. Trial: Evidence: Waiver. Introduction of evidence by the defense waives any objection to the earlier introduction of evidence on the same subject by the State.

15. Motions for Mistrial: Appeal and Error. A mistrial is properly granted when an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and would thus result in preventing a fair trial. The decision of whether to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of abuse of discretion.

16. Sexual Assault: Corroboration. In a sexual assault case the victim need not be independently corroborated on the particular acts constituting the sexual assault, but must be corroborated on the material facts and circumstances tending to support the victim's testimony about the principal fact in issue.

17. Criminal Law: Directed Verdict. In a criminal case a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged, or evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

18. Motions for New Trial: Appeal and Error. The granting or refusal of a motion for new trial is left to the discretion of the trial court, and in the absence of an abuse of that discretion, the determination will not be disturbed on appeal.

19. Convictions: Witnesses: Time. A variance in the date of the offense as testified to by the victim does not necessarily preclude conviction. This is especially true in cases where there is a minor victim who does not immediately complain to authorities.

20. Indictments and Informations: Time: Proof: Limitations of Actions. Where time is not an ingredient of the crime, a variance between the information 21. Jury Instructions. It is the duty of the trial court, upon request of the accused, to instruct the jury upon any valid defense if there is credible evidence to support it. However, the trial court may refuse to give a requested instruction where the substance of the request is covered in the instructions given.

and the proof is not fatal if the date proved is within the statute of limitations.

22. Jury Instructions: Appeal and Error. Jury instructions must be read as a whole, and if the instructions, when read together, correctly state the law, are not misleading, and adequately state the issues, there is no prejudicial error.

23. Sentences: Appeal and Error. A sentence imposed within the statutorily prescribed limits will not be disturbed on appeal unless there has been an abuse of discretion.

24. Sentences. It is within the discretion of the trial court to direct that sentences imposed for separate crimes be served consecutively.

Daniel W. Ryberg, Omaha, for appellant.

Robert M. Spire, Atty. Gen. and Lynne R. Fritz, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Mark G. Andersen appeals his jury convictions and sentences on two charges of first degree sexual assault and three charges of sexual assault on a child. The victims were three preteenage boys in Omaha, J.M., B.T., and S.M. We affirm all of the convictions and sentences.

The charges were brought in five separate informations, which were consolidated for trial.

On each first degree sexual assault case, the defendant received an indeterminate prison sentence of 2 to 4 years, one to run consecutively to the other. On each charge of sexual assault on a child, Andersen received indeterminate sentences of not less than 1 nor more than 2 years' imprisonment. Two of the sexual assault on a child sentences were ordered to be served concurrently with a first degree sexual assault sentence. The third was ordered to be served consecutively to the first degree sexual assault sentences. Andersen's sentences total a term of not less than 5 nor more than 10 years of imprisonment.

First degree sexual assault is a Class II felony carrying a penalty of up to 50 years with a minimum of 1 year's imprisonment. Neb.Rev.Stat. §§ 28-319(1)(c) and 28-105 (Reissue 1985). Sexual penetration is an essential element of sexual assault in the first degree. A person commits sexual assault on a child if he or she subjects another person 14 years of age or younger to sexual contact and the actor is at least 19 years of age or older. "Sexual contact" means the...