State v. Anglemyer
| Decision Date | 28 January 2005 |
| Docket Number | No. S-04-579.,S-04-579. |
| Citation | 691 N.W.2d 153,269 Neb. 237 |
| Parties | STATE of Nebraska, appellee, v. Romona ANGLEMYER, also known as Romona Werner, appellant. |
| Court | Nebraska Supreme Court |
Robert Wm. Chapin, Jr., of Chapin Law Offices, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.
Romona Anglemyer, the defendant-appellant, was convicted in a bench trial of one count of indecency with an animal, in violation of Neb.Rev.Stat. § 28-1010 (Reissue 1995), and she was sentenced to 90 days in jail and fined $500 plus costs. The primary issue in this case is whether sufficient foundation was provided for the admission of the videotape which depicted the alleged offense.
The prosecution in this case is based on a videotape recovered from a search of Mataya's Babydolls, a club that had been located in Lincoln, Nebraska. Because the videotape is central to the issues presented in this case, we begin with a general description of what is depicted on the videotape. The videotape was filmed in what appears to be a motel room. Three people and a male dog are seen on the videotape, and a fourth, unseen person's voice is heard, presumably from behind the camera. On the videotape, a woman, allegedly Anglemyer, engages in various types of sexual activity with the dog. Anglemyer does not contest that the activity depicted on the videotape, if the videotape is admissible, would constitute indecency with an animal, in violation of § 28-1010. Consequently, a detailed description of the sexual activity is not necessary to our analysis of the issues presented in this case.
Jeri Roeder, a detective sergeant with the Lincoln Police Department, testified that she participated in the execution of a search warrant at Mataya's Babydolls on January 3 or 4, 2003. The purpose of the search was to locate videotapes, and several VHS and 8-millimeter videotapes were found, including the 8-millimeter videotape at issue in this case, which was labeled at trial as exhibit 15. Roeder testified that she and another investigator viewed the videotapes and recognized some of the individuals depicted in exhibit 15. Roeder said that three people were seen in exhibit 15 and that the voice of a fourth, unseen person can be heard. Roeder recognized Anglemyer in exhibit 15 and made an in-court identification of Anglemyer. Roeder identified the unseen person, by voice, as being John Ways, Jr.
Roeder testified that it did not appear to her that the videotape had been altered in any way. Roeder also explained that based on her experience as a detective familiar with video cameras, a "date stamp" is imbedded on the videotape for several seconds after the camera begins recording. The date stamp on exhibit 15 indicated that it was filmed on May 27, 2002.
Roeder stated that exhibit 15 was apparently recorded in a motel room, and an imperfection on the wall of the room led her to believe that the location of the recording could be determined. Roeder also stated that in exhibit 15, the participants discussed walking over to "the club" to watch some shows and that from her past experience with Anglemyer and Ways, she knew that they were associated with Mataya's Babydolls. Based on that information, Roeder contacted the manager of a motel located "right next" to Mataya's Babydolls.
Ketan Patel, manager of the motel, testified that he was responsible for checking people into the motel and also had trained other employees on the check-in procedure. Patel testified that a customer checking into the motel was required, in the regular course of business, to present positive identification and to pay at check-in. Patel also testified that he inspected rooms after any reports of damage, so he was familiar with the individual guest rooms at the motel.
Patel testified that in January 2003, he cooperated with a Lincoln Police Department investigation looking for a particular motel room. The police were seeking a room with two beds on the left side of the room and a defect on the wall. Based on that description, Patel was able to identify room No. 123 at the motel as the room described. Patel also testified that he had reviewed the first few seconds of exhibit 16 and recognized the color of the motel's bedspreads and the motel's "strip on the headboard." Patel was able to identify room No. 123 on the basis of the layout and the unique defect in the wall. According to Patel, the wall was damaged in late 2001 or early 2002 and was not repaired until February or March 2003.
Patel also produced the motel's "Guest Folio print out" for May 25 and 26, 2002, which Patel explained would list guests who checked out of the motel on May 27. Patel testified that according to that record, Paul Beck of Wichita, Kansas, was the guest in room No. 123 on May 27. Patel stated that no other guest stayed in room No. 123 until another person, whose identity is not relevant to the investigation, checked in on May 29 and out on May 30. Roeder testified that after receiving this information, she contacted the Wichita Police Department, which provided photographs of Beck and Glenda Yancey Beck, whom Roeder was able to identify as the other two people on exhibit 15. Roeder went to Wichita to make contact with the Becks. Roeder testified that when she arrived at their address, she saw and recognized the dog from exhibit 15.
At trial, Roeder testified that exhibit 16, a VHS videotape, was a copy made of exhibit 15. Roeder testified that it was an accurate copy of exhibit 15 from the beginning to the "end of the part involving an animal." Roeder explained that exhibit 15 continued with people involved that are not included on exhibit 16. The State explained that the purpose of exhibit 16 was to provide a copy that could be played on the audiovisual equipment available at the courthouse.
As previously stated, Anglemyer was convicted of indecency with an animal, was sentenced to 90 days in jail, and was fined $500 plus costs. At sentencing, the trial court noted that The court noted the probation officer's characterization of Ways as the "provocateur" of the offense. But the trial court also stated, The trial court did explain, however, that the evidence persuaded it that Anglemyer was engaged in a broader commercial enterprise with Ways. The court rejected Anglemyer's testimony that she was embarrassed by her participation in the videotape and concluded, based upon materials in the presentence investigation report, that Anglemyer was part of a larger venture for the production of bestiality. The court based its sentence on its conclusion that "[t]his is not an isolated incident, and I don't think the citizens of this community want that happening here." The court sentenced Anglemyer as previously stated, and the judgment was affirmed by the district court on appeal.
Anglemyer assigns that the district court erred in not finding that the county court erred by (1) admitting exhibits 15 and 16 and (2) sentencing Anglemyer based on her association with Ways and making findings of fact about Anglemyer that were "not supported by the facts in the PreSentence Report of [sic] the evidence presented at trial."
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. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).
Whether there is sufficient foundation evidence for the admission of physical evidence must necessarily be determined on a case-by-case basis. State v. Mather, 264 Neb. 182, 646 N.W.2d 605 (2002). A trial court's determination of the admissibility of physical evidence will not ordinarily be overturned except for an abuse of discretion. Id. Cf. State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992) ().
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004).
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. Fields, 268 Neb. 850, 688 N.W.2d 878 (2004).
Anglemyer's primary argument on appeal is that the State did not present adequate foundation for the admission of exhibits 15 and 16. Anglemyer argues that the videotapes should not have been admitted without the testimony of a witness who actually saw the events depicted and could testify that the videotapes accurately represented what the witness saw. Since Roeder had no personal knowledge of the events shown on the videotapes, Anglemyer argues that Roeder was unable to provide the necessary foundational testimony.
Anglemyer's argument implicates the requirements of rule 901, which rule provides, in relevant part:
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