State v. Archie

• Decision Date: 25 May 2007
• Docket Number: No. S-05-1145.,S-05-1145.
• Citation: 273 Neb. 612,733 N.W.2d 513
• Parties: STATE of Nebraska, appellee, v. David L. ARCHIE, appellant.
• Court: Nebraska Supreme Court

733 N.W.2d 513

273 Neb. 612

STATE of Nebraska, appellee, v. David L. ARCHIE, appellant.

No. S-05-1145.

Supreme Court of Nebraska.

May 25, 2007.

Dennis R. Keefe, Lancaster County Public Defender, and Christopher Eickholt for appellant.

David L. Archie, pro se.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ., and HANNON, Judge, Retired.

GERRARD, J.

David L. Archie, the appellant, was convicted of one count of first degree sexual assault on a child¹ and one count of incest² in connection with the sexual abuse of Archie's 6-year-old step-daughter. Archie was sentenced to 25 to 30 years' imprisonment for first degree sexual assault on a child, and a concurrent term of 10 to 20 years' imprisonment for incest. Archie appeals. For the reasons that follow, we affirm the judgment of the district court.

BACKGROUND

The victim in this case, D.W., was born January 20, 1998, and was 7 years old at the time of trial. Archie was born on August 6, 1969, and was 35 years old at the time of trial. Miranda S., D.W.'s mother, married Archie on February 14, 2004. Miranda had two other children, both boys, who were respectively 1 year old and 4 years old at the time of trial. Archie is the biological father of the younger boy, but not of the older boy or D.W.

In the summer of 2004, Miranda, Archie, and the three children were living together in a home in Lincoln, Nebraska. Miranda admitted that she and Archie "hadn't been getting along" for "quite a while that summer" and that she was not very happy with their marriage. Miranda was working morning shifts at a local restaurant, but Archie was not working at the time. Archie watched the children while Miranda was at work. D.W., then 6 years old, was in kindergarten.

At some point during the summer of 2004, D.W. told Miranda that "`Daddy sexed with me,'" and that it hurt. "Daddy" was what D.W. called Archie. Miranda confronted Archie about D.W.'s statement, and Archie said that D.W. was lying, Some time later, D.W. made a similar claim. Miranda brought the matter up with Archie again and told Archie that they needed to have a conversation with D.W. because "this is serious, you know." The next day, D.W. told Miranda that she had been lying. However, Miranda testified that she had been to work that day, so Archie had the opportunity to talk to D.W. about the matter earlier. "[A] few weeks, maybe a month" later, Miranda and D.W. had another conversation with Archie. D.W. repeated to Archie everything she had said to Miranda. Miranda testified that Archie accused D.W. of lying and that D.W. responded, "`No, Daddy, you're lying.'"

Because of what D.W. had said, Miranda took her to see Dr. Derrick Anderson, a family practitioner, on August 19, 2004. Miranda said that before taking D.W. to the doctor, she had examined D.W.'s genitals and concluded that D.W. "looked a little red, like un-normal." Miranda testified that she "told [Anderson] that [D.W.] looked a little red down there, and that was it, pretty much, that she was just reddish. That's what she was being seen for."

Dr. Anderson observed D.W.'s vaginal area and saw mild redness and irritation, but no frank evidence of trauma. Anderson made external observations of D.W.'s vagina, but did not conduct an internal examination. Anderson discussed possible causes of the irritation with Miranda, including soaps and bubble baths, and suggested that if D.W. had any further problems, Miranda should bring D.W. back to be reevaluated.

On September 6, 2004, after Miranda came home from work, she, Archie, and the children went to a park. Eventually, they went home, and while Archie was playing basketball across the street, Miranda played with the children, then bathed D.W. Miranda noticed what appeared to be blood in D.W.'s underwear. Miranda asked D.W. if it was blood or if she had spilled Kool-Aid on herself. D.W. was reluctant to answer the question, and Miranda waited until D.W. was out of the bath to ask again. Miranda had a conversation with D.W. in D.W.'s bedroom and decided to make a doctor's appointment for D.W. Miranda told Archie about the situation, and according to Miranda, Archie replied that "it wasn't really necessary to make her [a doctor's appointment]. Kids fall all [the] time. He said his two older girls bumped and fall [sic], and they had blood in their panties before. It's — it was pretty much nothing to worry about." But the next day, Miranda made the doctor's appointment anyway.

The appointment was made for September 7, 2004, at 3 p.m., with Dr. Anderson. Miranda came home from work early that day, but according to Miranda, Archie determined that the doctor's appointment was less important than visiting an insurance company to obtain coverage so Miranda could get her driver's license reinstated. As a result, they missed the doctor's appointment. Miranda rescheduled the appointment for the next day, with Joan George, a nurse practitioner and physician's assistant, Miranda took D.W. to the rescheduled appointment. George spoke with D.W. while Miranda was out of the room, and after Miranda returned, George called the police.

George testified that she saw D.W. in the late afternoon on September 8, 2004, and "[t]he information on the schedule said that she had had blood in her panties." George conducted a physical examination of D.W. and noticed irritation that she thought was out of the ordinary. George testified that

[u]sually, on a six-year-old, the folds of tissue over the vaginal opening are together. They're not apart. They're — kind of leaf over each other. Hers were separated a little bit and there was some redness. That can be a normal variance, but it also can be a result of some type of penetration.

George said she asked D.W., "`What do you think caused the bleeding, the blood in your panties?" D.W. "said that Daddy put his wiener down there and it hurt and it caused the blood." George asked D.W. when it had happened, and D.W. said, "`When Mommy was at work on Monday." George asked D.W. how old she had been when this had first happened, and D.W. replied that she had been 5 years old. George said that D.W. did not seem to be afraid or in any acute physical distress and that D.W. was upset "[j]ust when she told me what had happened. She said that it hurt and she — you know, that that — she was upset." George said that when she told Miranda what D.W. had said, Miranda acted surprised. George consulted with Anderson, then contacted Child Protective Services, the Child Advocacy Center (Center), and the police.

After speaking on the telephone with a police officer, Miranda took D.W. to a police station, where she met Investigator Deanna Hager of the Lincoln Police Department, with whom she had spoken. The police referred Miranda to the Center, which Miranda described as "a place where children or young people go to when somebody sexually abuses them or hurts them in any way." Miranda and D.W. went to the Center, where they met Hager and a social worker from the Department of Health and Human Services. Miranda spoke to a Center counselor, Hager, and the social worker, then Hager spoke to D.W. privately.

Hager testified at trial regarding her interview of D.W.; the substance of that testimony is set forth in more detail in our analysis. Summarized, Hager testified regarding the procedure used to interview D.W., but did not testify about what D.W. told her. Hager was cross-examined about her failure to administer an interview procedure intended to establish that a child knows the difference between the truth and a lie. On redirect examination, Hager explained that that procedure is only necessary when there is a concern that a child is lying, and Hager had no concerns during this interview that D.W. was not telling the truth.

Miranda was asked to consent to a search of the residence she shared with Archie, and Miranda signed a consent form. Miranda was also asked to take D.W. to an emergency room for examination. Miranda took D.W. and her other children to an emergency room, where they met Hager and a Center counselor.

Patricia Heser, a women's health nurse practitioner, was on duty at the hospital where D.W. was taken. Heser is certified as a "Sexual Assault Nurse Examiner." She interviewed D.W. and conducted an examination. Heser collected swabs of vaginal and anal secretions and saliva and took pictures of the opening of the vagina and the anal area. Heser said that there was "a little redness at one area around the vaginal opening" and "above her anus, on her back, there was [sic] a couple little abrasions." But there was no tearing, bruising, or scarring on D.W.'s vagina, and Heser agreed that D.W. was talkative, pleasant, and "acting like a normal child."

Heser testified that the redness between D.W.'s vagina and anus could have been caused by sexual penetration, but admitted on cross-examination that it could have been caused by "numerous things," including a fall. Similarly, although Heser testified that D.W.'s hymen was open, and could have been opened by sexual penetration, there were no tears or lacerations, and Heser admitted that a hymen can be open for several reasons, including rough play, a fall, or congenitally.

Dr. Jeffrey David, a private practice pediatrician with specialized training in child sexual abuse, volunteered at the Center. David examined D.W. on September 20, 2004. David's examination of D.W.'s genitals revealed nothing abnormal, except for a "nonspecific notch" on D.W.'s hymen that David said "you see in 20 percent of normal kids as well." David's examination of D.W.'s anus and perianal area revealed nothing abnormal. However, David testified that there are signs of physical injury in less than 10 percent of verified cases of child sexual abuse. David said that one "rarely" sees tearing, trauma, or scarring on a person who claims to have been sexually assaulted and only...