State v. Collins
| Decision Date | 16 June 1998 |
| Docket Number | No. A-97-984,A-97-984 |
| Citation | 583 N.W.2d 341,7 Neb.App. 187 |
| Parties | STATE of Nebraska, Appellee, v. Leslie E. COLLINS, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, and an appellate court is obligated to reach a conclusion independent of that reached by the trial court.
2. Sexual Assault: Expert Witnesses. Whether expert testimony as to a victim's mental or physical capacity to resist or to appraise the nature of the perpetrator's conduct is indispensable in a prosecution under Neb.Rev.Stat. § 28-319(1)(b) (Reissue 1995) must be approached on a case-by-case basis.
3. Sexual Assault: Evidence: Testimony. In sexual assault cases where no expert testimony is provided, a court must examine the evidence and determine whether the nonexpert testimony is of sufficient probative value to justify a rational finding that the victim was mentally or physically incapable of resisting or appraising the actor's conduct.
4. Verdicts: Appeal and Error. On a claim of insufficiency of evidence, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative value as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
5. Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence, but considers the evidence in the light most favorable to the successful party.
6. Verdicts: Appeal and Error. 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.
7. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.
8. Sentences. In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or lawful conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime.
Chris M. Arps, Omaha, for appellant.
Don Stenberg, Attorney General, and Jay C. Hinsley, Lincoln, for appellee.
Leslie E. Collins was convicted of two counts of first degree sexual assault. Count I charged that Collins, being a person of 19 years of age or older, did subject S.C., a person of less than 16 years of age, to sexual penetration. Count II charged that Collins subjected J.C. to sexual penetration when Collins knew or should have known that J.C. was mentally or physically incapable of resisting or appraising the nature of Collins' conduct. Collins was sentenced to 15 to 25 years' imprisonment on each count, with the sentences to be served consecutively. On appeal, he alleges that there was insufficient evidence to convict him of count II, because the State failed to prove that he knew or should have known that J.C. was mentally incapable of resisting or appraising the nature of Collins' actions, and that his sentences on both counts are excessive.
On August 1, 1996, Collins was charged in the county court for Douglas County, and on August 29, 1996, an information was filed against Collins in the Douglas County District Court, charging him under Neb.Rev.Stat. § 28-319(1)(b) and (c) (Reissue 1995) with first degree sexual assault. These charges stemmed from reports from Collins' stepdaughters regarding a pattern of sexual abuse spanning the past decade.
At a hearing on Collins' motion to suppress, Michael Hoch, a 29-year veteran of the Omaha Police Division, testified that he had interviewed S.C. and J.C. on July 24, 1996; that S.C., who was born on August 4, 1974, and was almost 22 at the time of the interview, had given him information that included dates and locations of sexual assaults by Collins from the time S.C. was 10 years old; and that J.C., who was born on March 3, 1972, and was age 24 at the time of the interview, had also reported that she had been sexually assaulted by Collins and was able to give specific dates and locations of these assaults. After these reports, Hoch had S.C. tape record a telephone conversation between S.C. and her mother, Rita, concerning the sexual assaults. This evidence corroborated the reports of S.C. and J.C., thus a search warrant was obtained for the Collins' residence, and Collins and his wife, Rita, were taken into custody.
Hoch testified that shortly after Collins' arrest and the subsequent search of his residence, Collins was interviewed by Hoch, who told Collins his purpose was to interview him in connection with allegations regarding sexual assaults of J.C. and S.C. Hoch advised Collins of his rights and explained the charges and the evidence that had been obtained. Hoch testified that during a brief interview, Collins stated that his daughters were being truthful, that he had sexually assaulted them, and that he did not want to cause any more harm or trauma to them; that he did not want Rita involved or hurt any more and did not want to hurt his patients; and that he wanted to get on with the process so that he could address his problem and get help. Hoch testified that Collins appeared to be calm and in control of himself, declining to give a tape-recorded statement because he felt nauseated by the subject matter of the interview.
The motion was overruled, and a bench trial was held on May 12 and 13, 1997. At trial, exhibits 1 to 4 were offered in the form of testimonial stipulations. Exhibit 1 is Hoch's report of his interview with J.C. Exhibits 2 and 3 are reports of interviews with S.C., and exhibit 4 is a report of Hoch's investigation, including summaries of his interviews with Collins and Rita. It was stipulated that if these witnesses were called, their testimony would be substantially similar to that which is contained within these reports. No objections were made, and all four exhibits were received into evidence. Both parties rested, and trial was continued to the next day.
Collins renewed his motion to suppress and presented an oral motion to dismiss; both motions were overruled. Following closing arguments, the trial court found that J.C. was born on March 3, 1972, and S.C. was born on August 4, 1974; that the complaints were filed in county court on August 1, 1996, and in district court on August 29, 1996; that under Neb.Rev.Stat. § 29-110(2)(b) (Reissue 1995), a complaint for first degree sexual assault must be filed within 7 years of the offense or within 7 years of the victim's 16th birthday, whichever is later; that according to the information most favorable to Collins, his conduct with S.C. had ended sometime in 1994 and, thus, that neither prong of the statute of limitations barred prosecution for his sexual assault of S.C.; and that according to the information most favorable to Collins, his conduct with J.C. ended in late 1994 or early 1995 and, thus, that Collins could be prosecuted for his sexual assault of her at that time because it had not been 7 years since that act. The court further found that J.C., who had been subjected to abuse starting when she was 13, was subject to manipulation from Collins, who, by virtue of his professional training and trusted position as her stepparent, abused his position of trust. Based on all the evidence, the trial court concluded that "the defendant knew or should have known that these two children, and they were children, were, in fact, mentally incapable of resisting or appraising the nature of this conduct" and found Collins guilty of both counts. The trial court ordered a presentence investigation, including a 90-day evaluation at the Lincoln Regional Center. On September 5, 1997, Collins was sentenced to 15 to 25 years' imprisonment on each count, the sentences to run consecutively.
Collins is a psychotherapist who specialized in treating victims of sexual abuse. Collins and Rita were married in 1984 and had their own psychotherapy business. Collins also worked at Boys' Town, where he helped children with sexual abuse problems. He has written three books dealing with sexually abused youths. Rita had two children, J.C. and S.C., from a former marriage. J.C., born March 3, 1972, and S.C., born August 4, 1974, were, respectively, 12 and 10 at the time of Collins' marriage to Rita.
Exhibit 1 reflects that Collins started touching J.C. inappropriately when she was 12 or 13, and this abuse escalated and eventually progressed into having sexual intercourse twice a week when J.C. was 17. J.C. turned 17 in March 1989. Collins stated that intercourse continued until J.C. ended her relationship with him in late 1994 or early 1995. The abuse continued through visits and "phone sex" after she went to Dartmouth College. She stated that on several occasions, she told Collins she wanted to stop or did not want to have sex with him and that he would become agitated and have long talks with her. On one such occasion, he sat up with her half the night with a knife in his hand and threatened to kill her, stating that nobody would care or know. He also told her that she had nothing to be angry about because he had not raped her and that if she wanted something to be angry about, he would rape her.
In 1992, when J.C. was in Omaha on a visit from Dartmouth, Collins sexually penetrated both her and her sister in a bedroom in the basement of their home. On two occasions in 1993, Collins visited J.C. in Boston, and sexual penetration occurred. In early 1994, J.C. told Collins that she did not want to see him anymore. Collins continued to call her, but she...
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......69 In that case, the Nebraska court of appeals stated: “We believe the evidence is ample to establish that Collins' manipulation and deception of J.C. rendered her incapable of resisting or appraising the real nature of the sexual penetration that he visited upon her during the relevant time period. Moreover, that someone of Collins' training knew or should have known of such diminished capacity needs no ......
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