State v. Brown, 86-657
| Decision Date | 15 May 1987 |
| Docket Number | No. 86-657,86-657 |
| Citation | 225 Neb. 418,405 N.W.2d 600 |
| Parties | STATE of Nebraska, Appellee, v. Joseph Walter BROWN, Sr., Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold a trial court's findings of fact unless those findings are clearly incorrect.
2. Constitutional Law: Miranda Rights: Search and Seizure. The warning specified in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is required only when there has been a restriction on a person's freedom as to render such person in custody. The mere fact that an investigation has focused on a suspect does not trigger the need for the Miranda warning in a noncustodial setting.
3. Constitutional Law: Search and Seizure. Whether a person is in custody, in a constitutional sense, is a question of fact to be determined by the trial court.
4. Directed Verdict. In a criminal case a court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged, or (2) evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.
5. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a jury trial, the Supreme Court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury, which are within a jury's province for disposition. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.
6. Sexual Assault: Words and Phrases. Cunnilingus, that is, stimulation by the tongue or lips of any part of a female's genitalia, is an act which may subject the actor to prosecution for first degree sexual assault under the provisions of Neb.Rev.Stat. § 28-319(1) (Reissue 1985). Once the perpetrator's lips or tongue touches any part of a female's genitalia, the act of cunnilingus is complete, irrespective of any actual penetration of the genitalia.
7. Jury Instructions: Lesser-Included Offenses. Generally, it is not prejudicial error to not instruct upon a lesser offense when the evidence entirely fails to show an offense of a lesser degree than that charged in the information.
John F. Steinheider of Hoch & Steinheider, Nebraska City, for appellant.
Robert M. Spire, Atty. Gen., and Bernard L. Packett, Lincoln, for appellee.
Joseph Walter Brown, Sr., appeals the verdict and sentence in the district court for Otoe County regarding Brown's conviction for first degree sexual assault. We affirm.
The information charged that Brown, as one more than 19 years of age, had sexually penetrated a person less than 16 years of age, a violation of Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1985). As a definitional section for the statutes pertaining to sexual assault, Neb.Rev.Stat. § 28-318(6) (Reissue 1985) provides in part: "Sexual penetration shall mean sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the actor's or victim's body or any object manipulated by the actor into the genital or anal openings of the victim's body...."
On February 2, 1985, the victim's mother, who is Brown's daughter, left the victim, 9 years of age, and the victim's 8-year-old sister with Brown, the children's apparently divorced 62-year-old grandfather, at his trailer house in Nebraska City. During that day, the two sisters played with friends outside Brown's trailer until suppertime, when the playmates returned to their homes. After supper, the victim, with her sister and grandfather, watched television in the living room of the trailer house. While watching "Creature Feature," the victim's sister fell asleep. As related in the victim's testimony, the following occurred:
Q [deputy county attorney]--Okay. What happened after [your sister] fell asleep?
A [victim]--Grandpa picked me up and took me into the bedroom.
Q--And what happened after you got to the bedroom?
A--He laid me down, took off my jeans and underpants.
Q--What else did he do?
.... A--And then he started kissing and licking me between the legs.
....
Q--Okay. What was he kissing you with--or what was he licking you with?
A--His tongue.
Q--Did he lick you in any particular spot?
A--Between my legs.
Q--Did you feel any pains when he did this?
A-- Well, he tried to enter me with his tongue.
Q--And what happened?
A--He couldn't do it.
Q--Why couldn't he do it?
A--I was too small.
With anatomically illustrative dolls utilized during her testimony, the victim pointed to an area of the doll corresponding with the vaginal area of a human and indicated that Brown had placed his tongue on such area of the victim's body. Later, pursuant to her grandfather's instruction, the victim went into the bathroom, dressed herself, and returned to the living room, where she fell asleep next to her sister, who was still asleep.
On the morning of February 3, Brown returned the victim and her sister to their home. That afternoon the victim complained to her mother about a burning sensation when the victim urinated, but did not implicate her grandfather, because, as the victim explained: Approximately 2 weeks later, when she could no longer contain herself, the victim disclosed the incident to her mother, who immediately contacted Investigator Dan Scott of the Nebraska State Patrol. Scott interviewed the victim and her mother at their residence on February 18, and the victim told Scott about the sexual incident at Brown's trailer. Immediately after interviewing the victim and her mother, Scott attempted to contact Brown, but was unsuccessful.
On February 19, Scott came to Brown's trailer to discuss the victim's allegations and knocked on the trailer's door. When Brown answered the door, Scott stated he "needed to talk to [Brown]" and asked to enter the trailer house, where Brown was alone. Scott was dressed in civilian attire rather than a trooper's uniform, and displayed his state trooper's badge to Brown, who, on account of a previous contact, knew that Scott was a police officer. Brown invited Scott into the living room of the trailer house, where Scott informed Brown that the victim-granddaughter had made "some accusations" against Brown which necessitated Scott's interviewing Brown, who was reminded that Scott was a police officer. Scott assured Brown that he was not under arrest and that he could cease talking with Scott at any time, admonishing Brown that "anything [Brown] told me could be used against [Brown] in court." Scott did not inform Brown of the latter's right to remain silent or the right to consultation with and presence of a lawyer during any discussion about the alleged sexual incident. Scott told Brown that the victim had indicated there was "some inappropriate sexual contact" between Brown and his granddaughter, and Brown responded: "I guess I went too far." When Scott sought an explanation concerning Brown's response, Brown admitted accompanying the victim into the bedroom of the trailer house, placing her on a bed, disrobing the victim, and placing his tongue between the victim's legs. Scott asked whether Brown knew the meaning of the word vagina and whether the vaginal area was the anatomical location where Brown had placed his tongue on the victim's body. Brown gave answers in the affirmative to each of Scott's inquiries. Throughout the
interview, Scott made no promise or threat regarding any of Brown's unrecorded statements, and Brown neither requested that Scott leave the trailer nor attempted to terminate the conversation or request a lawyer. Nothing indicates that Brown was unable to leave his trailer house or otherwise depart from the presence of Investigator Scott.
Brown moved to suppress his oral statements made to Investigator Scott during the interview at Brown's trailer, asserting that Brown's incriminating statements were "coerced by threats and promises of leniency" and were "given without [Brown's] having been informed of his constitutional rights." At the suppression hearing, the State's evidence consisted of the officer's account of the interview in Brown's trailer, as detailed above. Brown did not offer evidence regarding his motion to suppress. The court overruled Brown's motion to suppress and expressed "there was no requirement that the Miranda Rights be administered before questioning ... [because] the Court ... finds that the statements were made in a non-custodial setting...."
At trial, Brown objected to admission of his incriminating statements as evidence offered by the State. At the conclusion of the State's case in chief, which consisted of evidence from the victim, the victim's mother, and Investigator Scott, as previously reflected in this opinion, Brown moved for dismissal of the charge against him or for a directed verdict of acquittal, alleging insufficiency of evidence to support the charge of first degree sexual assault. The court overruled Brown's motion.
Brown testified on his own...
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