State v. Dady, S-18-948.

• Decision Date: 13 December 2019
• Docket Number: No. S-18-948.,S-18-948.
• Citation: 304 Neb. 649,936 N.W.2d 486
• Parties: STATE of Nebraska, appellee, v. Joshua DADY, appellant.
• Court: Nebraska Supreme Court

304 Neb. 649

936 N.W.2d 486

STATE of Nebraska, appellee,

v.Joshua DADY, appellant.

No. S-18-948.

Supreme Court of Nebraska.

Filed December 13, 2019

Thomas C. Riley, Douglas County Public Defender, Timothy F. Shanahan, Omaha, and Abbi R. Romshek, for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy, Lincoln, for appelllee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

Appellant was convicted of first degree sexual assault under Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016). Appellant was 18 years old at the time, and the victim was 10 years old. Appellant was found guilty, and he now assigns several errors on appeal. These errors focus on several rulings by the district court related to the knowledge element of the crime charged and whether age can be a factor in a jury’s determination of capacity under § 28-319(1)(b). For the reasons set forth below, we affirm the judgment of the district court.

FACTS

Joshua Dady was charged with first degree sexual assault after he admitted to police that he had sex with M.J., a 10-year-old girl. While Dady was 18 years old and within 4 days of their meeting, Dady engaged in vaginal intercourse with M.J. Dady was charged under § 28-319(1)(b). Section 28-319(1) makes it a crime for "[a]ny person [to subject] another person to sexual penetration ... (b) who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct[.]" Following a jury trial, Dady was convicted and sentenced to 20 to 25 years’ imprisonment. Dady appeals.

Dady first met and talked with M.J. for approximately an hour after she exited a schoolbus a few blocks from her home on a Thursday or Friday afternoon. M.J. testified that Dady told her he was 16 years old and that she told Dady she was 10 years old.

M.J.’s stepfather saw M.J. and Dady talking and introduced himself and then walked M.J. into the house. When M.J.’s stepfather noticed Dady following everyone into the home, he told Dady to leave. M.J.’s stepfather also asked Dady if he knew how old M.J. was, and Dady said no. He then told Dady that M.J. was 10 years old. M.J. later encountered Dady while she was walking her dog. M.J. testified that they discussed "YouTubers" for an unknown length of time. M.J. testified she thought that she and Dady "hung out" again later in the day on a Saturday. M.J.’s mother testified that M.J. came to her on that Saturday and asked to go to a mall with Dady. M.J.’s mother told M.J. she could not go to the mall with Dady because she did not know him.

On the morning of Sunday, August 20, 2017, M.J. met up with Dady for about an hour, then went home for lunch and to clean her room. After lunch, M.J. returned to Dady’s house and sat on the curb. After approximately 5 minutes, Dady invited M.J. to sit by a fence in the yard. Dady asked M.J. if she had a boyfriend and then suggested to M.J. that they should have sex. M.J. testified that she had originally said no, but then agreed after Dady offered to give her an "MP3 player." M.J. and Dady began kissing. Dady then pulled down his shorts and put a condom on. M.J. testified that she knew what a condom was but had not seen one before and did not know what Dady meant when he said, " ‘We can't let this go to waste now.’ " Dady then pulled down M.J.’s pants and pulled M.J. on top of him. M.J. testified that Dady’s pulling her on top of him was not forced. M.J.’s statements to medical personnel and her testimony at trial were that she knew what sex was and that she willingly engaged in sex with Dady.

Neighbors saw M.J. pull down her pants and attempt to sit on Dady’s lap. They ran outside and confronted M.J. and Dady. M.J. and Dady both stood up and pulled their pants up as the neighbors approached. M.J. testified that she asked Dady to " ‘[p]romise not to tell’ " what happened. The neighbors told M.J.’s stepfather and then informed Dady’s foster father of what they had seen. The neighbors testified they had seen Dady and M.J. "hanging out" earlier in the day when M.J. was riding around the neighborhood on a "bike [with] flowers on it."

M.J.’s stepfather called M.J. home. When M.J. arrived home, she went to her room and would not speak with either her stepfather or her mother. M.J.’s mother then called the 911 emergency dispatch service. M.J. was taken to a child advocacy center and then to a hospital to be examined by a sexual assault nurse.

Police, responding to the 911 call, interviewed M.J.’s mother and then went to Dady’s foster home. Dady and his foster father came outside and spoke with the police. Dady admitted to police that he had sexually penetrated M.J.’s vagina and that he was 18 years old. The police placed Dady under arrest, and he was taken to a police station for an interview. Police obtained consent from Dady’s foster father to search the yard and the home. Police found a condom wrapper in the yard and a used condom in a trash can in Dady’s bedroom.

During the interview with police, Dady claimed M.J. told him that she was 16 or 17 years old and that she was going to be a freshman in high school. Dady initially denied that his penis penetrated M.J.’s vagina, but later stated that a small portion of his penis went inside M.J.’s vagina. Dady also told police that he put his finger in M.J.’s vagina, but that she told him to stop because it was hurting her. Dady also told police that he put his penis in M.J.’s mouth for a "millisecond."

Dady said M.J. told him on the day of the incident that her mother says she is 10 years old, but that she is a freshman in high school and was about to turn 16 years old. At the end of the interview, when asked how old he thought M.J. looked, Dady admitted she looked 10 or 11 years old.

Susan Kelly, an emergency room pediatrician, testified concerning M.J.’s visit to the emergency room on the night of the incident. Kelly testified that M.J. or M.J.’s mother relayed that M.J. had been diagnosed with attention deficit hyperactivity disorder

(ADHD), oppositional defiant disorder (ODD), and disruptive mood dysregulation disorder (DMDD). This was done while Kelly was ascertaining M.J.’s medical history for the purpose of treating her in the emergency room. Dady objected on the ground of hearsay and was overruled.

Kelly explained the various stages of cognitive development of children and testified that a normal 10-year-old’s brain has not fully developed the ability to assess risk and control impulses. Kelly further testified as to how diagnoses of ADHD and ODD can affect a person’s ability to control impulses. On cross-examination, Kelly testified that her impressions of M.J.’s ability to understand the nature of sex were based upon her time spent with M.J., M.J.’s past diagnoses, and the general categorization of a 10-year-old’s capacity. When asked to give further support for her conclusion that M.J. was not capable of appraising the nature of sex, Kelly testified that M.J. did not know when her last period occurred. Further, Kelly testified that when she asked M.J. if a condom was used in the incident, M.J. responded, " ‘I think so.’ "

Additional evidence of M.J.’s mental health diagnoses was presented through the testimony of the forensic interviewer who saw M.J. at the child advocacy center. She testified that ADHD, ODD, and DMDD can affect emotional stability and impulse control. She indicated the severity of each of these conditions can vary based on the individual. She admitted that she is not licensed to diagnose these conditions; however, she stated that it is important for an interviewer to know a child’s mental health diagnoses in order to tailor the interview to the child. She testified that M.J. appeared to be a developmentally normal 10-year-old and indicated that no formal testing of cognitive ability was done.

M.J.’s mother testified that M.J. has had behavioral and mental health issues since she was approximately 4 years old. M.J.’s mother testified that M.J. had been diagnosed with ADHD, ODD, and DMDD. Dady objected on grounds of foundation and hearsay and was overruled. On cross-examination, Dady elicited testimony from M.J.’s mother that the diagnoses had come from M.J.’s doctor. Dady made a motion to strike M.J.’s mother’s testimony on hearsay and Confrontation Clause grounds. M.J.’s mother also testified that M.J.’s mental health problems have resulted in M.J.’s hospitalization more than 10 times. M.J.’s mother testified these hospitalizations normally occur after M.J. becomes physically and emotionally escalated or when M.J. threatens to harm herself.

M.J.’s mother testified that she had age-appropriate conversations about sex with M.J. M.J.’s mother expressed that prior to the incident, M.J. understood the physical aspects of what sex is. M.J.’s mother explained that some of the conversations were prompted by M.J.’s being accused of inappropriate sexual touching of her half sister. The incidents with her half sister resulted in M.J.’s being hospitalized and then receiving treatment at a residential treatment facility for approximately 5 months.

At the close of the State’s case, Dady made a motion to dismiss. Dady claimed the State failed to prove that M.J. lacked capacity and that Dady knew or had reason to know M.J. lacked capacity under the statute. The court denied the motion.

At the conclusion of evidence, Dady objected to jury instruction No. 6 proposed by the court. Dady submitted an alternate instruction based on the definition of mental impairment

taken from In re Interest of K.M.¹ Instruction No. 6 provided in part: " ‘Mentally Incapable’ means that because of the victim’s age or mental impairment, the victim was incapable of resisting or appraising the nature of her sexual conduct. ‘Mental Impairment ’ means the victim’s impairment was so severe that she lacked the capacity to consent to sexual conduct with the Defendant."

Dady’s proposed jury instruction...