State v. Cox
| Decision Date | 17 March 1989 |
| Docket Number | No. 88-280,88-280 |
| Citation | 437 N.W.2d 134,231 Neb. 495 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Ronald R. COX, Appellant. |
Syllabus by the Court
1. Preliminary Hearings: Indictments and Informations: Courts. There is no prohibition, constitutional or otherwise, to a preliminary hearing in the district court on a felony charge alleged in an information, notwithstanding a county court's refusal to bind the defendant over to the district court for a trial after a preliminary hearing in the county court on the same felony charge subsequently filed in the district court.
2. Evidence: Trial: Appeal and Error. To preserve a claimed error in admission of evidence, a litigant must make a timely objection, which specifies the ground of the objection to the offered evidence.
3. Trial: Evidence: Waiver: Appeal and Error. If a party does not make a timely objection to evidence, the party waives the right on appeal to assert prejudicial error concerning the evidence received without objection.
4. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, whether an error in admitting or excluding evidence reaches a constitutional dimension or not, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.
5. Criminal Law: Trial: Juries: Appeal and Error: Words and Phrases. Harmless error exists in a jury trial of a criminal case when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in a verdict adverse to a substantial right of the defendant.
6. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harmless error and does not require reversal if the evidence erroneously admitted is cumulative and other relevant evidence, properly admitted, or admitted without objection, supports the finding by the trier of fact.
7. Rules of the Supreme Court: Evidence: Appeal and Error. In order that assignments of error concerning the admission or rejection of evidence may be considered, the Supreme Court requires that appropriate references be made to the specific evidence against which objection is urged.
8. Trial: Evidence: Appeal and Error. When a court overrules a motion in limine to exclude evidence, the movant must object when the particular evidence, previously sought to be excluded by the motion, is offered during trial and cannot predicate error on the admission of evidence to which no objection was made when the evidence was adduced.
Lee A. Larsen, Asst. Sarpy County Public Defender, for appellant.
Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.
A Sarpy County District Court jury convicted Ronald R. Cox of child abuse, a Class IV felony under Neb.Rev.Stat. § 28-707 (Reissue 1985), and third degree assault, see Neb.Rev.Stat. § 28-310 (Reissue 1985), which, under the circumstances, constituted a Class I misdemeanor. Both convictions resulted from first and second degree burns on the feet of Christopher Ranne, the 3-year-old son of Cox's former fiance, Connie Ranne. Although Cox had been charged with first degree assault of Christopher Ranne based on head injuries to the child, the jury acquitted Cox on the first degree assault charge. Cox was sentenced to imprisonment in the Sarpy County jail. We mention the head injuries of Christopher Ranne only as background for the discovery of Christopher Ranne's burns.
Pertinent to the prosecution of Cox, § 28-707(1) defines the offense of child abuse: "A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a minor child to be: (a) Placed in a situation that endangers his or her life or health; or (b) Cruelly confined or cruelly punished...."
Under § 28-310(1)(a), a person commits the offense of assault in the third degree if he or she "[i]ntentionally, knowingly, or recklessly causes bodily injury to another person."
In the months prior to August 5, 1987, Cox frequently stayed with Connie Ranne and her two children, 6-year-old Joseph and 3-year-old Christopher. Sometime in July of 1987, Christopher sustained "submersion burns," which were first and second degree burns caused when Cox disciplined Christopher by placing him in the bathtub and running hot water on the child's feet. These burns, however, were not discovered by law enforcement officials until August 5, 1987, when Christopher was taken to the hospital with serious head injuries.
On August 5, 1987, Cox, Christopher, and Joseph were in the Ranne home. Cox periodically forced Christopher to eat in the bathroom because Christopher "didn't eat the way [Cox] wanted him to eat." Both children were eating in the bathroom when, for some undisclosed reason, Cox took Christopher downstairs and forced him to do pushups. According to Joseph, Christopher was crying during the pushups and Cox "was telling him [Christopher] to do his pushups as he told him, but he didn't do it right, so--and then he kept on spanking him if he wouldn't do it right." After the pushup incident, Cox carried Christopher back to the bathroom. Although Joseph believed that Christopher was asleep while carried by Cox, Christopher had actually suffered a "subdural hematoma," a "collection of blood between the skull or the bone of the head and the brain tissue itself."
According to Cox's version of the incident, Christopher's head injuries resulted from the child's fall in the bathtub on August 5, 1987. Cox testified that he had placed the two children in the bathtub and proceeded downstairs to study for classes. About 10 to 15 minutes later, Joseph called out that Christopher was hurt. When Cox responded to Joseph's call, he found Christopher lying faceup in water in the bathtub. Joseph told Cox that Christopher had fallen and hit his head. As he pulled Christopher from the tub, Cox discovered that Christopher was not breathing. Cox began to administer cardiopulmonary resuscitation and then decided to take Christopher to the hospital.
During Christopher's treatment at Midlands Community Hospital, hospital staff saw physical indications which led them to suspect that Christopher was a victim of child abuse. Tamara Field, a registered nurse at Midlands' intensive care unit, noticed that Christopher had "multiple bruises all over his body" and "burns on his feet, his heels." When Christopher's condition began to deteriorate rapidly, he was removed from Midlands hopsital and flown by emergency helicopter to St. Joseph Hospital in Omaha.
On arrival at St. Joseph, hospital personnel attempted to ascertain how Christopher had sustained burns to his heels. Cox told hospital personnel that the burns to Christopher's feet were caused by a combination of ill-fitting shoes and the fact that Christopher had walked barefoot on hot pavement. Cox's explanation about the burns was inconsistent with the nature or type of burns sustained by Christopher, inasmuch as the burns were anywhere from a week to a month old and were first and second degree burns, commencing on the bottom of Christopher's feet and continuing up the back of his heels.
Dr. Douglas White, chief resident of St. Joseph's department of family practice, diagnosed Christopher's injuries as "submersion burns," resulting when a child is dipped into hot water. In Dr. White's opinion, Christopher's injuries were submersion burns in view of the pattern of the burns, namely, similar burns on both heels with no sign of injury to the child's forefeet, a condition which indicated that Christopher's burns did not result from the child's stepping into a tub of hot water. While in St. Joseph, Christopher was treated for his head injury, but no treatment was prescribed for Christopher's burns.
Pursuant to a request by personnel at Midlands hospital, an investigator from the Sarpy County Sheriff's Department, Officer Steve Grabowski, investigated Christopher's injuries. When Grabowski asked Christopher how his feet became burned, Christopher answered: "Daddy had poured hot water on his feet." Later, Grabowski learned that Christopher, in using "Daddy," was referring to Cox, who was later arrested and charged with two counts of first degree assault and one count of child abuse.
In the county court charges against Cox, "Count # 3," later designated as "Count III" in the information, contained the assault charge based on the burns to Christopher's feet. After a preliminary hearing in the county court, Cox was bound over to the district court for trial on the child abuse charge and the assault charge based on Christopher Ranne's head injuries. The county court found that there was insufficient evidence to bind over Cox for trial on the assault charge for burns to Christopher's feet and purported to "dismiss Count # 3." In its information filed in the district court, the State charged Cox with child abuse and both assault charges. In view of the county court's refusal to bind over Cox on the assault charge reflected in count III of the information, the district court held a preliminary hearing on the burn-related assault charge (count III) and found sufficient evidence to require that Cox stand trial on the assault charge alleged in count III of the information. The district court's "Journal Entry" contains: Consequently, Cox was tried on all three counts, that is, the charge of child abuse and the two assault charges.
The cause of Christopher's burned feet is the crucial issue in Cox's convictions.
Cox maintained that...
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