State v. Bruna

• Citation: 12 Neb.App. 798,686 N.W.2d 590
• Decision Date: 07 September 2004
• Docket Number: No. A-03-544.,A-03-544.
• Parties: STATE of Nebraska, appellee, v. Jay E. BRUNA, appellant.
• Court: Court of Appeals of Nebraska

686 N.W.2d 590

12 Neb.App. 798

STATE of Nebraska, appellee, v. Jay E. BRUNA, appellant.

No. A-03-544.

Court of Appeals of Nebraska.

September 7, 2004.

Lawrence G. Whelan, Omaha, for appellant.

Jon Bruning, Attorney General, and Kevin J. Slimp for appellee.

IRWIN, Chief Judge, and SIEVERS and CASSEL, Judges.

PER CURIAM.

I. INTRODUCTION

Pursuant to a jury verdict, Jay E. Bruna was convicted in the district court for Sarpy County of first degree sexual assault on a child and sentenced to 15 to 50 years in prison. Bruna appeals, alleging that the trial court committed numerous prejudicial errors and that Bruna's trial counsel was ineffective in several respects. Although we conclude that these matters lack merit regarding the pretrial motions and trial proceedings, we find merit in the error assigned regarding the trial judge's sentencing comments.

II. BACKGROUND

The information asserted one charge of first degree sexual assault on a child, a Class II felony in violation of Neb.Rev. Stat. § 28-319(1)(c) (Reissue 1995). It specifically alleged that between December 1, 2001, and May 20, 2002, Bruna, a person 19 years of age or older, subjected A.T., a person younger than 16 years of age, to sexual penetration. Bruna and the State each filed several motions before and during trial. We summarize the relevant motions and rulings in the analysis section of this opinion.

The court conducted a trial on March 3 to 7, 2003. Because the evidence regarding the elements of first degree sexual assault is relevant only to Bruna's motions for directed verdict, we summarize that evidence in the manner most favorable to the State. See State v. Spurgin, 261 Neb. 427, 623 N.W.2d 644 (2001).

We first summarize the testimony of A.T., the victim, in detail. A.T. was born on January 27, 1990. During the 2001-02 school year, he was a sixth grader and often rode a schoolbus, driven by Bruna, home from school. A.T. described Bruna as his friend.

A.T. related events showing that Bruna took an unusual interest in A.T.:

During the 2001-02 school year, A.T. played a saxophone in the school band. He took private band lessons from the band teacher. Bruna attended these private lessons and "would just sit there" during them. Bruna also attended A.T.'s band concerts. Bruna told A.T. and other children that if they practiced their instruments more, they could go to a hockey game. As a result of this incentive, A.T. attended a hockey game with Bruna, other boys, and the father of one of the other boys. Bruna told A.T. that Bruna played percussion instruments and the guitar. A.T. wanted to learn to play the guitar and asked Bruna to teach him. Bruna replied that he would give A.T. lessons at Bruna's house.

A.T. also played baseball on a team composed entirely of boys. Bruna attended almost all of A.T.'s baseball games, standing behind a dugout. A.T. did not see Bruna speaking to the parents at the games but admitted that it was possible that Bruna did so when A.T. was not watching.

A.T.'s school hosted a grandparents' tea between Thanksgiving and Christmas of 2001. A.T. had no grandparents in the area, and without any request, Bruna offered to attend. A.T. accepted the offer and sat with Bruna at the tea. If A.T. had not brought a guest, the tea's sponsor would have assigned a stranger as A.T.'s guest.

During his sixth grade year, A.T. obtained a haircut at a barbershop in Springfield. A.T. saw Bruna at the barbershop, watching A.T. and taking his picture. Bruna did not tell A.T. why Bruna took the photographs. A.T.'s mother accompanied A.T. to the haircut appointment, but A.T. did not know whether she spoke to Bruna.

On A.T.'s birthday in January 2002, Bruna gave him a greeting card which, although torn into pieces, was received in evidence.

In addition to driving the schoolbus, Bruna worked at a bar in Springfield. Bruna inquired whether A.T. wanted a job mowing the lawn at the bar, but Bruna did not tell A.T. how much Bruna intended to pay for this work.

Bruna told A.T. that he owned several cars, including "a Corvette, a Lincoln, and... two or three Broncos," and A.T. asked to see Bruna's cars. Bruna told him that he would bring a picture of a car the next day, but he never did.

A.T. explained the circumstances involving the events on the schoolbus:

During the second half (January to May) of the 2001-02 school year, A.T. rode the bus home two to three afternoons per week; on the remaining schooldays, his parents, both of whom work, brought him home. At the beginning (September) of that school year, A.T. sat in the back of the bus, but Bruna later made A.T. and one of A.T.'s friends, B.T., sit in the front because, Bruna claimed, the two boys were "acting up." The two boys sat on the front seat across from Bruna. When A.T. rode the bus, Bruna would bring him food. Bruna did not give food to the other children, but he sometimes gave the other children candy. At some point during the school year, B.T. resumed sitting in the back of the bus, but A.T. continued to sit in the front. At times, rather than sitting on the front seat, A.T. would sit on the engine cover between the front seat and the driver's seat. When doing so, he faced Bruna, with his legs on the side of the cover closest to the driver's seat. A.T. sat on the engine cover almost every time he rode the bus between January and May. A.T. did not know how this practice began. While sitting in this location, A.T. assisted Bruna by opening the bus' door, using the control lever in front of the engine cover.

A.T. lived in a house just outside of Springfield's Meadow Oaks subdivision, where the backyard adjoined the premises of B.T.'s residence. Sometimes A.T. would get off the bus at B.T.'s residence, play there, and then walk home through A.T.'s backyard. B.T.'s residence was located on Meadow Ridge Drive, one-half mile from its intersection with Cornish Road.

At a point after Christmas 2001 and also after the hockey game mentioned above, Bruna began stopping the bus on Cornish Road near Meadow Ridge Drive while he and A.T. were alone on the bus. The first time Bruna stopped the bus there, they talked while Bruna sat in the driver's seat and A.T. sat across from him in the front seat. The next time A.T. rode the bus, Bruna did not stop on Cornish Road. On the next occasion when Bruna and A.T. were alone on the bus and Bruna stopped it on Cornish Road, Bruna did so at the same location and told A.T. to go to the back of the bus. A.T. went three-quarters of the way toward the back of the bus and sat on a seat, and Bruna kneeled on one knee in the aisle. Bruna touched A.T.'s penis with Bruna's hands through A.T.'s clothes. Bruna threatened that if A.T. told anyone what had happened, Bruna would hurt him. Bruna then drove away from the area.

Bruna returned to the same area on another occasion when alone with A.T. on A.T.'s way home from school. Bruna again told A.T. to go to the back of the bus. A.T. again went threequarters of the way to the back of the bus and sat in a seat, and Bruna again kneeled on one knee in the aisle. Bruna told A.T. to pull down his pants, and A.T. complied. Bruna touched A.T.'s penis with Bruna's hands, and, A.T. later testified, "stuff came out of [A.T.'s] penis" and landed on the floor. Bruna again threatened A.T. that if A.T. told anyone, Bruna would hurt him.

On another occasion, Bruna again parked the bus on Cornish Road. Following similar directions by Bruna, A.T. again went to a seat toward the back of the bus, with Bruna kneeling on one knee in the aisle, and at Bruna's direction, A.T. pulled down his pants. Again, Bruna began touching A.T.'s penis with Bruna's hands. Once again, A.T. later related, "stuff came out of [A.T.'s] penis," this time landing on a towel that Bruna had placed on the floor. Bruna then placed his hands on A.T.'s hands and started rubbing Bruna's penis from the outside of Bruna's clothes. Again, Bruna threatened A.T. that Bruna would hurt him if he told anyone. Bruna then took A.T. home.

The next time Bruna parked the bus on Cornish Road, the same general events transpired. Toward the back of the bus, Bruna told A.T. to pull down his pants. After A.T. pulled down his pants, Bruna put A.T.'s penis in Bruna's mouth. Bruna placed a blue paper towel he had brought with him on the floor (such paper towels being kept at the front of the bus). Emissions from A.T.'s penis landed on the towel. Bruna then put Bruna's penis in A.T.'s mouth while they both kneeled in the aisle. Bruna ejaculated into the towel on the floor. Again, Bruna followed the acts with the same threat of harm upon any disclosure. Bruna then drove A.T. home. A.T. believed Bruna "could" hurt him.

After this incident, A.T. asked his parents to drive him home from school, which they generally did thereafter. On a later occasion, however, A.T. again rode the bus. Bruna inquired about his absence. While he was alone with A.T., Bruna again parked the bus on Cornish Road near Meadow Ridge Drive and followed the same general process. At Bruna's direction, A.T. pulled down his pants, and Bruna put A.T.'s penis in Bruna's mouth. "[S]perm" came out of A.T.'s penis and landed on a blue paper towel (again of the type kept at the front of the bus) on the seat. Bruna then put his penis in A.T.'s mouth while A.T. was in the seat and Bruna, facing the rear of the bus, was in the aisle. Bruna ejaculated onto the towel, which he had moved to the floor. Again, Bruna threatened to hurt A.T. if he told anyone. A.T. was scared of Bruna, as he later testified, and after this incident, he again asked for rides from his parents. For some period of time, they did take A.T. home from school.

Once while A.T. was parked alone with Bruna on the bus, but before Bruna had begun touching him, a man had stopped and asked whether they were having trouble. At that time, A.T. was sitting in the front seat across from Bruna.

On another occasion while A.T. was parked alone with Bruna...