State v. Burton
| Decision Date | 07 June 2016 |
| Docket Number | No. A-15-789.,A-15-789. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. EDWARD R. BURTON, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE, Judge. Affirmed.
John H. Marsh, of Knapp, Fangmeyer, Aschwege, Besse & Marsh, P.C., and Tana M. Fye for appellant.
Douglas J. Peterson, Attorney General, and George R. Love for appellee.
Edward R. Burton appeals from his jury conviction for first degree sexual assault in the district court for Buffalo County. On appeal, Burton alleges various evidentiary errors were made by the district court and an excessive sentence was imposed. Finding no merit to Burton's assigned errors, we affirm.
Burton was charged with first degree sexual assault for actions alleged to have occurred during the evening of October 29 and early morning of October 30, 2014. On October 29, the victim, referred to as S.M., was asked by someone to purchase marijuana for that individual. S.M. agreed and arranged to get marijuana from a relative of Burton. After obtaining the marijuana and delivering it to the individual, S.M. accepted an invitation by Burton to have drinks at a lounge. S.M., Burton, and his brother played pool and drank at the lounge.
S.M. consumed 5 to 6 rum and cokes during approximately a 1-hour period while at the lounge. She testified to feeling "sick and out of it" shortly thereafter, along with being dizzy and unable to walk straight.
S.M. testified that she was going to walk to her sister's house, but was offered a ride by Burton and his companion, Owens, whom S.M. had not previously met. S.M. accepted the invitation and the group left the lounge in Owens' vehicle. Owens drove and the group picked up some fast food, at which point S.M. vomited. They then stopped at a liquor store. After leaving the liquor store, S.M. was under the impression that she would be dropped off at her sister's house. Instead, Owens drove the group to his residence.
Once at Owens' residence, the group ate the fast food and proceeded to the living room couch. S.M. was sitting next to Burton on the couch. Owens retrieved marijuana from a bag in his room, then rolled a marijuana joint and lit it. Burton and Owens began smoking the joint, and S.M. joined in, smoking a little to avoid being known as a snitch. S.M. testified that Burton then blew marijuana smoke into her mouth several times until she said no and refused to participate.
S.M. testified that at this point her whole body began to tingle badly, possibly caused by the cumulative effect of alcohol, marijuana, and medication consumption. S.M. was taking various medications for treatment of depression, anxiety, and bipolar disorder. S.M. also testified to being a recovering substance abuser and acknowledged that she had been charged with false reporting during her period of substance abuse.
S.M. thereafter called a friend with her cell phone. She spoke over the phone with her face down on the couch, whispering because she was getting "bad vibes." She requested that the friend pick her up, but she apparently provided him with incorrect directions. S.M. also sent text messages to the same friend asking for help. S.M. chose not to call the police, although she was afraid based on her knowledge of Burton and Owens' reputation while living in Chicago. S.M. testified that she felt safer contacting the friend rather than the police.
S.M. testified that Burton kept asking her for "head," to which she responded by saying no repeatedly. S.M. then started to stand up, planning to grab her handbag and leave. However, S.M. testified that as she attempted to stand, her legs collapsed and she fell onto the floor between the couch and a coffee table. Because S.M. was weak she was unable to get off the floor.
S.M. described her condition at this point as passing in and out of consciousness. She testified that Burton then got down on the floor and proceeded to sexually assault her. S.M. responded by stating "stop" and "don't," then she started crying. S.M. also testified that she bit Burton's penis when he attempted oral intercourse and thereafter he penetrated her vagina with his penis.
After Owens told Burton someone was coming over and they needed to move, S.M. claims that Burton grabbed her feet and Owens grabbed her shoulders, carrying her through a doorway with hanging beads into a little girl's room, wherein she was placed on the floor. While moving her, S.M. testified that Owens started laughing and said that he was standing on S.M.'s hair. S.M. indicated that her head was jerked down when Owens stepped on her hair and she believed thatsome of her hair was pulled out as a result. S.M. indicated that this occurred while she was on the floor between the couch and coffee table.
Once in the other room, S.M. testified that Burton continued to sexually assault her while she faded in and out of consciousness. She continued to protest by telling Burton "stop" and "don't" while crying. S.M. remembers awakening and hearing Burton in the doorway while Owens penetrated her, unaware that they had switched. She maintains that at no point was the sexual contact between herself and Burton consensual.
S.M. awoke early the following morning, while it was still dark. She gathered her belongings and quietly left the residence, believing that Burton was asleep on the couch. S.M. walked to her sister's house. S.M. did not tell her sister about the assault because she did not want to place an additional burden on her. S.M. did not report the assault that day.
S.M. went back to Owens' residence the day following the assault to search for her ID. After knocking on the door and receiving no response, S.M. called Burton. Following the call, Owens proceeded to let S.M. into the residence. S.M. entered the residence and searched for her ID. S.M. testified that there was a woman with blond hair in the house at the time of her search.
On the morning of October 31, 2014, two days after the alleged assault, S.M. attended a previously scheduled appointment at a local hospital with her therapist, Bridgett Mostek. During this appointment, S.M. disclosed the assault to Mostek. Mostek told S.M. to report the assault or she would. At S.M.'s request, Mostek contacted law enforcement.
On December 2, 2014, Burton was charged by information in the district court for Buffalo County with first degree sexual assault, a Class II Felony, in violation of Neb. Rev. Stat. § 28-319 (Reissue 2008).
Trial was held on June 22 and 23, 2015. In addition to the testimony of S.M., as articulated in the previous section, testimony was given by David Stott, an officer with the Kearney Police Department; Mostek; and Ann Johnson, a nurse practitioner and sexual assault examiner affiliated with the Family Advocacy Network.
Mostek testified concerning S.M.'s therapeutic treatment and disclosure of the assault. She testified that S.M. suffered from "major depressive disorder, severe, recurrent without psychotic features" and "use of substances." Johnson testified regarding her sexual assault examination of S.M. on October 31, 2014. The examination did not produce evidence of acute trauma, and led to an unconfirmed diagnosis. However, Johnson testified that it is not unusual to not find injuries in adult cases of sexual assault, and that the nature of S.M.'s assault could have occurred without physical injury.
Officer Stott was dispatched to the hospital to investigate a sexual assault reported by Mostek concerning S.M. Stott testified that S.M. was visibly upset and crying when he arrived. He proceeded to interview S.M. in his patrol vehicle because it contained recording equipment. Mostek sat in the back seat of the vehicle for support. S.M. described the individuals who committed the alleged assault and assisted the police in establishing the location of Owens' residence. Stott later testified, over a hearsay objection, that S.M. identified the individuals during a photographic line-up. S.M. also described Owens' car, which was later located by police.
Over relevance and Rule 404 objections, Stott testified to various items that were found during the police investigation of Owens' residence, pursuant to the execution of a search warrant on November 1, 2014. These items included marijuana, hashish, drug paraphernalia, a sawed-off shotgun, and objects located in the little girl's bedroom, including bed sheets, blue beads consistent with what Owens had worn in his hair, and hair found on the bedroom floor.
During Stott's testimony, certain photographs were identified and admitted into evidence over Burton's respective Rule 403 and foundation objections.
The first photograph depicted a small amount of marijuana and drug paraphernalia ( rolling papers). Stott described this photograph as depicting "a small tin container that contained a small amount of marijuana, some rolling papers, and another small tin that I believe contained some old residue."
The second photograph was of long blond hair strands. S.M. testified that the hair depicted in this photograph was similar in length and color to her hair on the day of the assault and at trial. Over a hearsay objection, Stott testified that the blond hair was located between the couch and coffee table in the approximate area where S.M. advised that part of the assault allegedly occurred. The court gave a limiting instruction, advising the jury that this testimony was offered to explain what Stott was told by S.M. regarding her location during the events in question and to explain why officers were examining that area of the living room and picking up hair during their search. The court further...
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