State v. Craig

• Citation: 361 N.W.2d 206,219 Neb. 70
• Decision Date: 11 January 1985
• Docket Number: No. 84-168,84-168
• Parties: STATE of Nebraska, Appellee, v. Calvin L. CRAIG, Appellant.
• Court: Supreme Court of Nebraska

Page 206

361 N.W.2d 206

219 Neb. 70

STATE of Nebraska, Appellee, v. Calvin L. CRAIG, Appellant.

No. 84-168.

Supreme Court of Nebraska.

Jan. 11, 1985.

Syllabus by the Court

1. Speedy Trial. An accused cannot generally take advantage of a delay in being brought to trial where he is responsible for the delay either by action or inaction.

2. Sexual Assault: Evidence: Other Acts. Sexual crimes have consistently been classified as those in which evidence of other, similar sexual conduct has been recognized as having independent relevancy, and courts generally hold that evidence of other sex offenses by the defendant may be admissible.

3. Rules of Evidence: Other Acts. Rule 404(2) of the Nebraska Evidence Rules is an inclusionary rule, permitting as evidence the use of relevant, specific acts for all purposes except to prove character of a person in order to show that such person acted in conformity with character.

4. Rules of Evidence: Prior Acts. The purposes set forth in Rule 404(2) of the Nebraska Evidence Rules (Nev.Rev.Stat. § 27-404(2) (Reissue 1979)) are illustrative only and not intended to be exhaustive or mutually exclusive.

5. Criminal Law: Words and Phrases. Modus operandi is a characteristic method employed by a defendant in the performance of repeated criminal acts, and means, literally, "method of working," and refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer.

6. Rules of Evidence: Words and Phrases. As used in Rule 404(2) of the Nebraska Evidence Rules (Nev.Rev.Stat. § 27-404(2) (Reissue 1979)) intent is the state of mind operative at the time of an action.

7. Trial: Evidence: Witnesses. In a bench trial of a criminal case, the court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Among the factors entering into the trial court's resolution of any conflicts of evidence are such items as the respective interests of the parties in the litigation; the demeanor of witnesses, including the defendant, while testifying before the court; the apparent fairness exhibited by the witnesses; the extent to which the testimony of the various witnesses is corroborated; and the reasonableness or unreasonableness of the statements of the witnesses.

Dennis R. Keefe, Lancaster County Public Defender, and Scott P. Helvie, Asst. Public Defender, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ., and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

Calvin L. Craig appeals his conviction and sentence from a bench trial in Lancaster County for first degree sexual assault on a child under 16 years of age, in violation of Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1979). Craig was sentenced to a term of imprisonment of not less than 1 year nor more than 2 years. We affirm.

The information charging Craig with first degree sexual assault was filed on August 27, 1982. Names of 14 witnesses for the State were endorsed on the information. On September 29, 1982, Craig filed two motions. The first motion sought depositions from the State's witnesses and alleged that prospective testimony of the deponents was "material or relevant" and would be of "assistance" in preparing Craig's case. Craig's second motion was directed to discovery of any statement given by Craig, his prior criminal record, reports (mental or physical examinations and scientific tests or experiments), documents, and photographs. See Neb.Rev.Stat. § 29-1912(1) (Reissue 1979). Without further action by Craig the district court, on January 6, 1983, granted Craig's motions for discovery and depositions. The district court ordered depositions to be taken within 30 days from the hearing. (The record does not reflect that the requested depositions were actually taken.) On March 3 Craig filed a motion to dismiss the proceedings, claiming that the State had failed to bring Craig to trial within 6 months from the date on which the information was filed. On March 29, 1983, the district court found that the time involved in the discovery process initiated by Craig constituted a delay "for good cause" under Neb.Rev.Stat. § 29-1207(4)(f) (Reissue 1979), excluded such time in computing the last day permissible for commencement of Craig's trial, and overruled the motion for dismissal. On April 19 Craig filed a motion for continuance, containing, among other reasons, "The defendant needs additional time to prepare for trial...." Trial commenced on June 6, 1983.

Although the obvious thrust of his contention concerning a right to a speedy trial relates to Nebraska's "6-month rule" (§ 29-1207(1)), Craig does refer to his right to a speedy trial under the sixth amendment to the U.S. Constitution and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In State v. Brown, 214 Neb. 665, 670-71, 335 N.W.2d 542, 546 (1983), we stated:

Barker recites a "balancing test" which requires courts to approach each case on an ad hoc basis. This "balancing test" involves four factors bearing upon questions of speedy trial, namely, "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker [407 U.S.] at 530 . As further stated in Barker at 533 : "We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." According to Barker, at 531 , prejudice may result from prolonged incarceration or from an inability to prepare for trial.

Applying the "balancing test" of Barker to the present case, Craig has not been denied his constitutionally protected right to a speedy trial. Craig was brought to trial a little over 9 months after the information was filed. A substantial part of that time was used for Craig's pretrial motions and his pursuit of discovery. Therefore, any delay was neither inordinate nor unreasonable. Craig has not been denied his constitutional right to a speedy trial.

The last day permissible under Nebraska statute for commencement of Craig's trial was February 27, 1983, unless any time between August 27, 1982, and February 27, 1983, is excludable in computing the last day for trial in accordance with the "6-month rule" prescribed by § 29-1207(1).

An accused cannot generally take advantage of a delay in being brought to trial, where he is responsible for the delay either by action or inaction. State v. Fatica, 214 Neb. 776, 336 N.W.2d 101 (1983); State v. Searles, 214 Neb. 849, 336 N.W.2d 571 (1983). Craig's motions for discovery and depositions are pretrial motions, and, as such, "the time from filing until final disposition" must be excluded in computing the last day permissible for trial. See, § 29-1207(4)(a); State v. Brown, supra. Under the circumstances Craig must accept a reasonable delay as a consequence of invoking the discovery process in preparation for trial. State v. Fatica, supra. From September 29, 1982, when Craig filed his motions for discovery and depositions, until January 6, 1983, when the district court sustained Craig's motions, there are 100 days. Charging Craig with those 100 days and adding such excluded time to the date of February 27, the last day on which Craig's trial could have been commenced under the "6-month rule" is June 7, 1983. Trial commenced on June 6, and, therefore, Craig was brought to trial within the time prescribed by the "6-month rule," § 29-1207(1). Any delay in trial was attributable to Craig's request for discovery and depositions, and such delay was for "good cause" under § 29-1207(4)(f). Lest it appear that the State waited until virtually the last day before commencing the trial, the last permissible date to start Craig's trial would have been extended beyond June 7 by the time consumed in obtaining the depositions requested by Craig, assuming no impermissible conduct by the State delaying the depositions. See State v. Fatica, supra. Because we do not have the date when Craig took the last deposition, the question concerning the "6-month rule" is disposed of on the basis of Craig's pretrial motions. The district court correctly denied Craig's motion for dismissal on the basis of a denial of a speedy trial under Nebraska's "6-month rule."

We are reluctant to recount many of the events relative to the offense charged. However, the nature of the offense and Craig's defense render a detailed description indispensable.

The alleged offense occurred on Christmas morning, 1981. The Craig household included the victim--Craig's adopted 13-year-old daughter; the victim's mother; the victim's 5-year-old sister; and Craig, 31 years of age.

The victim, wearing panties and a knee-length nighty, was seated on a couch in the living room of the family residence. Craig sat down next to the victim and asked whether she wanted a "Christmas goose." There being no response, Craig asked if the victim would like to know what a Christmas goose was. Present in the living room at this time were the victim's mother and younger sister.

According to the victim, after the unanswered question about the "Christmas goose," Craig began to wrestle with the victim. As he crouched on the couch over the struggling victim, Craig pushed the victim down on the couch, pulled up her nighty, pulled down her panties, fondled the victim's genitalia, inserted two of his fingers into the victim's vagina, and manipulated his inserted fingers. After his digital penetration of the victim for 2 or 3 minutes, Craig removed his fingers. The victim went upstairs to...