State v. Antillon

• Decision Date: 29 July 1988
• Docket Number: No. 87-823,87-823
• Parties: STATE of Nebraska, Appellee, v. Abie ANTILLON, Appellant.
• Court: Nebraska Supreme Court

Page 533

426 N.W.2d 533

229 Neb. 348

STATE of Nebraska, Appellee, v. Abie ANTILLON, Appellant.

No. 87-823.

Supreme Court of Nebraska.

July 29, 1988.

Syllabus by the Court

1. Convictions: Appeal and Error. In resolving a challenge to the sufficiency of the evidence to sustain a conviction in a criminal case, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence.

2. Convictions: Appeal and Error. If, taking the view most favorable to the State, there is sufficient evidence to sustain the conviction, it will be upheld on appeal.

3. Sexual Assault: Corroboration. In a sexual assault case, the victim need not be independently corroborated on the particular acts constituting 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.

4. Parties: Words and Phrases. A party in a lawsuit is one who has a right to control the proceedings, to make a defense, to adduce and cross-examine witnesses, and to appeal from the judgment.

5. Indictments and Informations. The trial court, in its discretion, may permit a criminal information to be amended at any time before verdict or findings if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced.

6. Indictments and Informations. In general, an information is sufficient if it sets forth the crime in the language of the statute or the equivalent thereof.

7. Indictments and Informations. The information must inform the accused with reasonable certainty of the charge being made against him in order that he may prepare his defense thereto and also be able to plead the judgment rendered thereon as a bar to a later prosecution for the same offense.

8. Sentences: Appeal and Error. Where the punishment of an offense created by statute is left to the discretion of the court to be exercised within certain prescribed limits, a sentence imposed within such limits will not be disturbed on appeal unless there appears to be an abuse of discretion.

Donald W. Walters, Grand Island, for appellant.

Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.

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

HASTINGS, Chief Justice.

The defendant was found guilty by a jury in Hall County of two counts of first degree sexual assault of a child. He was sentenced to two concurrent terms of 15 to 20 years' incarceration. He appeals the judgment and sentences.

Defendant's assignments of error are: (1) The evidence was insufficient to support the convictions; (2) the court erred in ruling that the victim was not a party-opponent for purposes of impeachment under Neb.Rev.Stat. § 27-613 (Reissue 1985); (3) the court erred in allowing the State to amend the information at the conclusion of the State's case; and (4) the sentences were excessive.

The defendant, Abie Antillon, was approximately 23 years old at the time of the incidents. He and Catherine Bucholz moved to 414 North Oak in Grand Island in June 1985. They were married in January 1986. Also living with them were Abie, Jr., born to the defendant and Catherine in March 1984, and the victim, Catherine's son from a former marriage, born in August 1978.

In June 1986, the victim went to visit his maternal grandparents in Lincoln. While there, his uncle took him to a movie. On the way home, the victim told his uncle that the defendant had physically and sexually abused him. His uncle encouraged him to tell his grandparents about the incidents, which he did. The grandfather then "contacted authorities."

Steven Wilson, a Child Protective Services worker, met with the victim on three occasions to interview him about the allegations. Subsequently, the defendant was charged with two counts of first degree sexual assault on a child: one incident in the bedroom and one in the living room.

The victim described the assaults at trial. He testified that the first incident took place in his bedroom. As the victim was getting ready for bed, the defendant entered the former's bedroom with "a weird look on his face," pulled down his own pants and underwear, and pushed the victim's head down. The defendant made a fist and told the victim that he would "punch [his] lights out" if he told anyone. The defendant then forced the victim to "suck his wienie" until "white stuff" came out. A friend of the defendant's then knocked on the door, and the defendant left the bedroom.

The second incident occurred in the defendant's bedroom. (This was actually the same bedroom in which the first incident took place, but the defendant and the victim had traded bedrooms since that time.) The defendant told the victim to come into his bedroom, shut off the light, and forced the victim again to perform oral sex on him. The victim testified that he got a "funny taste" in his mouth and that "[i]t taste---It just--It felt just like it did in the other one." Afterward, the defendant threatened the victim with a knife and told him that he would throw the victim's little brother "against the walls and out the window" if the victim told anyone what had happened.

The defense attempted to impeach this testimony by cross-examining Wilson concerning certain inconsistencies between the victim's testimony at trial and the information he gave in an earlier adjudication hearing attended by Wilson. The judge disallowed this questioning.

At the close of the State's evidence, the State moved to amend the information to conform with the evidence by substituting "the living room" with "a bedroom." The court allowed the amendment, over objection by the defense. The defense then moved to dismiss the case. The court ruled, "The motions of the defendant for a directed verdict are denied."

The defendant argues that recent cases lessening the stringent requirement of corroboration have lost sight of the reasons behind the corroboration rule, i.e., protection from guilty verdicts based solely on sympathy and passion. He asserts that the only evidence adduced which supports the verdict is (1) the residence of the victim and defendant, (2) the fact that the defendant babysat the victim while his mother worked, and (3) statements made by the victim to third parties. Since (1) and (2) are as consistent with innocence as with guilt, it is (3), the victim's statements to others, which supports the verdict. These statements, claims the defendant, are riddled with inconsistencies and are not sufficient corroboration by themselves.

The State responds with a call for the abolition of the corroboration rule. The rationale for the corroboration rule simply does not exist, according to the State. Moreover, it claims, even with the corroboration requirement in this case, the evidence (i.e., statements made by the victim to his uncle, grandparents, and caseworker) is sufficient to support the jury's verdict.

It is not necessary to eliminate the corroboration rule in order to uphold the jury's verdict in this case. As in State v. Stone, 228 Neb. 389, 422 N.W.2d 568 (1988), also a case involving the sexual assault of a child,

There were many conflicts in the evidence and some inconsistencies between testimony given [earlier] and at the trial. These were all questions for the trier of fact. In resolving a challenge to the sufficiency of the evidence to sustain a conviction in a criminal case, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence.

Id. at 391, 422 N.W.2d at 570. "[I]f, taking the view most favorable to the State, there is sufficient evidence to sustain the conviction, it will be upheld on appeal." State v. Polyascko, 224 Neb. 272, 275, 397 N.W.2d 633, 635 (1986).

As to the corroboration requirement, this court has held: " ' "In a sexual assault case, the victim need not be independently corroborated on the particular acts constituting 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."...' " State v. Stone, supra 228 Neb. at 390, 422 N.W.2d at 569. The court then determined that the fact that the victim made a complaint to a person to whom a statement of such an occurrence would naturally be made is competent corroboration of the victim's testimony. In Stone, the fact that the 12-year-old victim described the incidents to her mother, who later contacted police, was sufficient evidence of corroboration.

In State v. Schon, 227 Neb. 482, 418 N.W.2d 242 (1988), the defendant sexually assaulted his wife's 6-year-old daughter. This court found that the fact of the assault was established by the victim's descriptions of the assault to her mother, to the investigating officer, and to the court during the trial. Furthermore, these facts were corroborated by a change in the victim's behavior and by a "report to the police that was made within a reasonable time after the assault." Id. at 485, 418 N.W.2d at 244.

In State v. Polyascko, supra, also involving the sexual assault of a child, the victim told her school counselor of the incident, who in turn contacted police. The victim then told the police officer the facts of the assault. The court found that this was a sufficient corroboration of the victim's account of the assault to support the verdict. The court took note of the decision in State v. Wounded Arrow, 207 Neb. 544, 300 N.W.2d 19 (1980), in which a conviction for sexual assault was upheld based upon corroborating evidence which consisted of the facts told by the victim to his mother, a jail administrator, and a police detective; and State v. Watkins, 207 Neb. 859, 301 N.W.2d 338 (1981), in which the defendant's conviction for...