State v. O'Connor
| Decision Date | 08 March 2016 |
| Docket Number | No. A-15-625.,A-15-625. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. DANIEL J. O'CONNOR, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE and MARK J. YOUNG, Judges. Affirmed.
David A. Domina and Amelia V. Prickett, of Domina Law Group, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
Daniel J. O'Connor appeals from his conviction in the district court for Buffalo County for one count of first degree sexual assault of a child and one count of third degree sexual assault of a child. On appeal, he assigns error to certain evidentiary rulings, the definitions in a particular jury instruction, and the sufficiency of the evidence. He also asserts that he received excessive sentences, that the incorrect judges imposed sentence and ruled on his motion for new trial, and that he received ineffective assistance of trial counsel. Finding no merit to O'Connor's assignments of error, we affirm.
On August 22, 2014, the State filed an information charging O'Connor in count I with first degree sexual assault of a child in violation of Neb. Rev. Stat. § 28-319.01(1)(b) (Cum. Supp. 2014), a Class IB felony, and in count II with third degree sexual assault of a child, in violation of Neb. Rev. Stat. § 28-320.01(1) (Reissue 2008), a Class IIIA felony. Specifically, in count I, the State alleged that between December 2012 and June 30, 2014, O'Connor, a person 25 years old or older, subjected B.K., a person at least 12 years old but less than 16, to sexual penetration. In count II, the State alleged that on or about July 27, 2014, O'Connor, a person 19 years old or older, subjected B.K., a person 14 years old or younger, to sexual contact and did not cause serious personal injury.
On March 27, 2015, O'Connor filed a motion in limine, seeking to prevent any of the State's witnesses, including B.K.'s therapist, from testifying that "[a]ny diagnosis of B.K. for [post-traumatic stress disorder (PTSD)] or similar disorder is caused by sexual abuse or caused by sexual abuse of [O'Connor]" and from giving any opinion regarding the credibility of B.K. or any other witness. On April 6, the State filed a motion in limine, seeking to prohibit O'Connor "from questioning, eliciting, implying, alluding to, or commenting about any reference to a [newspaper] article or information contained within regarding a paranormal investigation of [the therapist's] home or paranormal investigation as a legitimate field." Following a hearing, the district court granted both motions.
A jury trial was held on April 13-14, 2015. We note that two different district court judges handled the proceedings in this case. One judge handled all of the pretrial motions and sentenced O'Connor, and we have referred to this judge when necessary as "the first judge." A different judge presided over the jury trial and ruled on O'Connor's subsequent motion for new trial, and we have referred to this judge when necessary as "the second judge."
B.K., the victim in this case, was born in August 2000 and is O'Connor's stepdaughter. O'Connor was born in January 1979, and he married B.K.'s mother, C.O., in May 2008. The couple had a son, E.O., who was 4 years old at the time of trial. B.K. and E.O. had separate bedrooms on the main floor of the family residence, while O'Connor and C.O.'s bedroom was in the basement.
Around 6 p.m. on the evening of July 26, 2014, O'Connor, C.O., E.O, B.K., and a friend of B.K.'s went to an event at the county fair, but they left early because of E.O.'s behavior. After returning B.K.'s friend to his house, the family returned to their own house around 9 p.m. B.K. went inside to watch television. O'Connor and C.O. invited over some friends, and the adults sat outside drinking beer for approximately two hours. C.O. testified that O'Connor drank at least 12 beers that night.
At some point, C.O. went inside and told B.K. to go to bed since she had to get up early for her detasseling job. Before going to bed at 11 p.m., C.O. and O'Connor put E.O. down to sleep on the couch in the basement because he was not feeling well.
Sometime after everyone had gone to bed, O'Connor got out of bed and went upstairs to B.K.'s bedroom and began "touching" her with his hands. B.K. testified that she was asleep whenO'Connor initially entered her room and sat down on her bed. According to B.K., when O'Connor was touching her, he was sitting on her bed and the covers were "[o]ff to the side." She testified that O'Connor pulled up her tank top and pulled down her sweatpants and spandex shorts and began moving his hands over her breasts, stomach, vaginal area, and back, and touching her under her clothing. He also "put his hand inside" of her vaginal area.
Around 1 a.m., C.O. got up to the use the bathroom in the basement and observed that O'Connor was not in bed. She noticed that E.O. was still sleeping on the couch in the basement. She checked to see if O'Connor had gone outside to smoke, but noticed the outside door was still locked. C.O. heard the wood floor creak upstairs and checked whether O'Connor was asleep on one of the living room couches, but he was not. She then decided to see if he had gone to E.O.'s bedroom, which was located next to the upstairs bathroom. C.O. turned on the bathroom light and saw that E.O.'s room "was dark," but she observed O'Connor walk from B.K.'s bedside toward the wall behind the partially open door of B.K's room. C.O. observed that O'Connor had an erection. B.K. confirmed in her testimony that when the upstairs bathroom light came on, O'Connor got up and went behind her door. She did not notice anything about his appearance at that time. B.K. testified that when O'Connor got up she straightened her clothing and pulled up her blanket.
C.O. approached the doorway of B.K.'s bedroom and observed that O'Connor was standing in the corner behind the door facing the wall. C.O. asked O'Connor several times what he was doing. O'Connor told her he was not doing anything and that he was just checking on the kids. According to C.O., it would not be normal for O'Connor to check on B.K. in the night and that there was no special reason at that time that she needed to be checked on. After O'Connor left the room and went outside the house, C.O. asked B.K. what happened. B.K. told her that O'Connor had just been sitting on her bed. C.O. then went outside, found O'Connor sitting on the front porch smoking, and again asked him what he had been doing in B.K.'s bedroom. According to C.O., O'Connor "just said, nothing, I wasn't doing anything." He did not look at C.O. when he spoke to her.
Around 5 a.m., C.O. went upstairs to see whether B.K. was awake. Since B.K. still wanted to go to her detasseling job, C.O. drove her to catch the detasseling bus. During the short drive, C.O. asked B.K. "how long this had been going on," but B.K. did not answer. When C.O. asked whether it had been going on for "three months" and then for "six months," B.K. shook her head yes to both inquiries. C.O. then asked whether it had been going on for more than 6 months, and B.K. again shook her head yes. C.O. also asked if O'Connor had touched B.K., and B.K. "just pointed down." B.K. did not say anything about what had happened, and C.O. stopped asking questions because she "couldn't handle it." B.K. recalled providing more detail to C.O.'s questions at this point and testified that she told C.O. that O'Connor had been touching her breasts, crotch, back, and stomach. She did not remember pointing down to where he touched her. B.K. also recalled telling C.O. that she was "scared of what would happen" and that it had been going on for a while.
After speaking with a friend and her pastor, on the afternoon of July 27, 2014, C.O. took B.K. to the sheriff's office to report the matter, where they met with Deputy Justin Thorman. When Thorman asked B.K. to tell him what had happened, B.K. became distraught, and Thorman decided not to ask her any more questions at that time. C.O. then briefly explained to Thorman what sheknew of the incident and provided some general background information. Thorman contacted Investigator Harly Amy, who called the Family Advocacy Network (FAN) to arrange an interview for B.K.
That same afternoon, B.K. met with a forensic interviewer at FAN. During the interview, which lasted for about an hour, B.K. stated O'Connor had touched her "crotch area" with his tongue and his fingers but did not state that he had penetrated her vagina. The interviewer testified that a medical examination of B.K. was not performed because she did not disclose penetration. After the FAN interview, Amy, Thorman, and another deputy contacted O'Connor at his residence. When Amy advised O'Connor that he was under arrest for the sexual assault of B.K., O'Connor appeared "like he had just been punched in the stomach," started breathing heavily, staggered a little bit, became pale, told Amy he felt like he was going to faint, asked for a drink of water, and sweated profusely on his forehead. O'Connor was arrested and transported to the county jail. At the jail, Amy asked O'Connor if he was ready to tell "his side of the story." Initially, O'Connor did not respond. When Amy asked him again, O'Connor "just shook his head" and stated "there is nothing for me to say." At some point, Amy returned to O'Connor's residence to take photographs and search for the presence of semen and other bodily fluids. Nothing of evidentiary value was found.
C.O. testified that she had not previously planned or made any arrangements to divorce O'Connor but that she filed for...
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