State v. Berger
| Decision Date | 27 September 2022 |
| Docket Number | A-21-402,A-21-402. |
| Citation | 31 Neb.App. 379,980 N.W.2d 634 |
| Court | Nebraska Court of Appeals |
| Parties | STATE of Nebraska, appellee, v. Gregory T. BERGER, appellant. |
1. Rules of Evidence. 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 discretion a factor in determining admissibility.
2. Rules of Evidence: Appeal and Error. 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.
3. Trial: Rules of Evidence. A trial court exercises its discretion in determining whether evidence is relevant and whether its prejudicial effect substantially outweighs its probative value.
4. Judgments: Words and Phrases. 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.
5. Trial: Evidence: Appeal and Error. A trial court's determination of the relevancy and admissibility of evidence must be upheld in the absence of an abuse of discretion.
6. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews a trial court's ruling to admit or exclude an expert's testimony for abuse of discretion.
7. Records: Appeal and Error. The procedure set forth in State v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (1989), does not address, and therefore does not prevent a defendant's request that the records reviewed be sealed and included as part of an appellate record.
8. __ __. It is incumbent upon an appellant to supply a record which supports his or her appeal. Absent such a record, as a general rule, the decision of the lower court as to those errors is to be affirmed.
9. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.
10. Rules of Evidence: Expert Witnesses. When a court is faced with a decision regarding the admissibility of expert opinion evidence, the trial judge must determine at the outset, in accordance with Neb. Evid. R. 702, Neb. Rev Stat. § 27-702 (Reissue 2016), whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.
11. __ __. A determination of whether an expert's opinion would assist the trier of fact initially requires a determination of relevance.
12. __: __. Most trial court rulings excluding expert testimony can be explained as findings by the court that the issue is inappropriate for expert resolution, either because the expert is not needed for the jury to resolve the issue or because the expert is incapable of rendering meaningful assistance.
13. Trial: Rules of Evidence: Expert Witnesses: Appeal and Error. The trial court's determination of whether an expert's testimony will be helpful to the jury or assist the trier of fact in accordance with Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 2016), is a determination involving the discretion of the trial court, whose ruling on the admissibility of an expert's testimony or opinion will be upheld on appeal unless the trial court abused its discretion.
14. Trial: Rules of Evidence: Expert Witnesses. When an expert's opinion on a disputed issue is merely a conclusion which may be deduced equally well by the trier of fact with sufficient evidence on the issue, the expert's opinion is superfluous and does not assist the trier of fact in determining the factual issue or understanding the evidence.
15. Trial: Expert Witnesses. It is within the trial court's discretion to determine whether there is sufficient foundation for an expert witness to give his or her opinion about an issue in question.
Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge. Affirmed.
Joseph L. Howard, of Dornan, Troia, Howard, Breitkreutz, Conway & Dahlquist, PC, L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
Gregory T. Berger appeals his convictions in the district court for Douglas County for two counts of first degree sexual assault of a child and one count of third degree sexual assault of a child. Berger claims that the trial court erred in not releasing the victims' medical and therapy records to his expert witness and in not allowing his expert witness to testify. Based on the reasons that follow, we affirm.
Procedural History.
On November 30, 2018, the State filed an information charging Berger with two counts of first degree sexual assault of a child and one count of third degree sexual assault of a child. The information alleged that Berger had sexually assaulted two victims, E.A. and T.H., between 2006 and 2011. The victims were between the ages of 3 and 7 at the time of their respective assaults. E.A. is Berger's biological daughter and T.H. is E.A.'s half sister. The victims have the same mother.
On July 6, 2019, Berger filed a motion to compel, seeking production of E.A.'s medical records from her former primary care physician, mental health records from her former therapist and school records from her elementary school, including records from the school's counselor. That same day, Berger filed another motion to compel, seeking production of E.A.'s therapy records from Stefanie Armstrong and Cathy Schweitzer, who both work at The Attachment and Trauma Center (ATC) in Omaha, Nebraska. Berger asked that the records be sent to the court for an in camera review to determine whether they were relevant and had any evidentiary value in terms of the weight and credibility of E.A.
On July 26, 2019, Berger filed another motion to compel, seeking production of T.H.'s treatment, medical, and mental health records from Dr. Anne Tapley, Dr. Robert Arias, and Bryan Hospital. Berger again asked that the records be sent to the court for an in camera review.
On August 27, 2019, following a hearing, the court entered an order disposing of the motions to compel. In regard to the motion to compel production of records from E.A.'s former primary care physician, E.A.'s former therapist, and E.A.'s elementary school, the court denied the motion. In regard to the motion to compel production of records from Armstrong and Schweitzer at ATC, the court granted the motion in part, ordering that therapy records from the date of disclosure in March 2018 to the present be provided to the court for an in camera review. As to the motion to compel production of T.H.'s records from Tapley, Arias, and Bryan Hospital, the court denied the motion.
Thereafter, E.A.'s adoptive mother executed a release of E.A.'s therapy records from ATC from March 2018 to the present for purposes of an in camera review by the court and Berger subsequently subpoenaed the records from ATC.
On November 5, 2019, the State filed a motion in limine, seeking to prevent Berger "from adducing any expert witness testimony at trial regarding the credibility or reliability of the victims' accu[s]ations." The State specifically requested that the court issue an order preventing Dr. Terry A. Davis from testifying.
In January 2020, the district court completed its in camera review of E.A.'s therapy records from ATC and denied Berger's motion to compel production of those records. At a hearing on February 25, the court stated that it had reviewed the records from ATC and it received them into evidence as exhibit 1. The court also ordered that the exhibit be sealed.
In February 2020, Berger deposed Armstrong and Schweitzer, E.A.'s therapists from ATC. Following the depositions, Berger filed another motion to compel, seeking production of E.A.'s treatment records from counselor Mary Ellen Anderson, Dr. Loren Conaway, and Boys Town Residential Treatment Center. Berger requested the trial court to review those records in camera to determine if they were relevant and had any evidentiary value in terms of the weight and credibility of E.A.'s accusations. In support of the motion, Berger submitted that in deposing Armstrong he learned that (1) E.A. was diagnosed in 2011 with post-traumatic stress disorder (PTSD), attention deficit hyperactivity disorder, and reactive attachment disorder by Anderson; (2) EA. underwent a psychological evaluation with Conaway; (3) EA. was admitted to Boys Town Residential Treatment Center from March 5 to June 18, 2019; and (4) E.A.'s biological mother may be bipolar, which can be hereditary. E.A.'s adoptive mother subsequently executed a release to the court for the requested records.
On March 2, 2020, Berger subpoenaed E.A.'s medical and counseling records from Anderson, Conaway, and Boys Town Residential Treatment Center. Berger also subpoenaed medical and counseling records related to T.H. from Tapley, Arias, and Bryan Hospital.
On February 17, 2021, the trial court held a hearing on the State's motion in limine to prevent Berger from presenting any expert witness testimony regarding the credibility of the victims' accusations. Berger offered four exhibits into evidence, which included Davis' psychiatric opinion report of E.A. Davis also testified at the hearing. The court then granted the State's motion in limine, finding that Davis did not have a sufficient underlying foundation on which to base an expert opinion.
On February 27, 2021, Berger filed a motion to release sealed records and a renewal of motions to release the victims' mental health records. In regard to the motion to release sealed records, he asked...
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