State v. Doremus
| Decision Date | 29 March 1994 |
| Docket Number | No. A-93-562,A-93-562 |
| Citation | 2 Neb.App. 784,514 N.W.2d 649 |
| Parties | STATE of Nebraska, Appellee, v. Joe F. DOREMUS, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Trial: Mental Competency: Appeal and Error. The determination of whether to grant a defendant's request for a psychiatric evaluation of the victim is a matter of discretion for the trial court and will not be overturned absent an abuse of discretion.
2. Trial: Mental Competency. The trial court may order a psychiatric examination 3. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or to refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.
of the victim only when the record establishes compelling reasons.
4. Rules of Evidence: Other Acts: Appeal and Error. When reviewing the admission of evidence of other acts under Neb.Rev.Stat. § 27-404(2) (Reissue 1989), an appellate court considers (1) whether the evidence was relevant; (2) whether the evidence had a proper purpose; (3) whether the probative value of the evidence outweighed its potential for unfair prejudice; and (4) whether the trial court, if requested, instructed the jury to consider the evidence for the purpose for which it was admitted only.
5. Sexual Assault: Evidence: Other Acts. Sexual crimes are offenses in which evidence of similar sexual conduct by the defendant has independent relevancy, and such evidence may be admissible whether the conduct involved the complaining witness or other parties.
6. Evidence: Other Acts. Evidence of a prior bad act has independent relevance where it tends to show an absence of mistake or accident.
7. Evidence: Other Acts. Evidence of a prior bad act has a proper purpose where the evidence tends to show an absence of mistake or accident.
8. Trial: Evidence. Balancing the probative value of evidence against the danger of unfair prejudice is within the discretion of the trial court.
Dennis R. Keefe, Lancaster County Public Defender, and Margene M. Timm, Lincoln, for appellant.
Don Stenberg, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.
Joe F. Doremus was convicted of third degree sexual assault in the Lancaster County Court. The district court for Lancaster County affirmed his conviction and sentence, and Doremus has timely appealed to this court. Because the State's expert witness testified on the issue of the victim's mental capacity and defendant was denied an opportunity to have his own expert examine the victim on this issue, we reverse, and remand for a new trial.
The record discloses that in 1992, both defendant and the alleged victim were clients of the Lancaster Office of Mental Retardation (LOMR). The record reveals that at the time of trial, defendant was 44 years old and was mildly mentally retarded, and the victim was 34 years old and was moderately mentally retarded. On May 28, 1992, defendant and the victim were working at the Nebraska Book Company, a LOMR worksite. According to Sharon Hayter, a Nebraska Book employee, defendant and the victim were seated next to each other in the lunchroom when defendant "walk[ed]" his fingers up the victim's leg and then "massag[ed]" the clothed area on top of the victim's penis. Hayter stated that the victim did not physically resist defendant. Hayter reported the incident to a LOMR supervisor, and the Lincoln Police Department was later notified of the incident. Defendant was charged with third degree sexual assault, a Class I misdemeanor, in the Lancaster County Court. See Neb.Rev.Stat. § 28-320(3) (Reissue 1989).
Defendant filed a pretrial motion for an independent psychological or psychiatric evaluation of the victim, which the court denied. At trial, the State called Dr. James Carmer, a psychologist, to testify. Prior to and during Dr. Carmer's testimony, defendant renewed his motion for an independent evaluation. Dr. Carmer had treated the victim as a patient and had also performed a Prior to trial, defendant also filed a "Motion for Disclosure of Intention to Use Evidence of Other Crimes, Wrongs or Acts." At a hearing on the motion, the State disclosed its intention to use evidence of an alleged similar act that occurred on April 12, 1992, involving defendant and another mentally retarded individual. See Neb.Rev.Stat. § 27-404(2) (Reissue 1989). Defendant's counsel made an oral motion in limine regarding this evidence, which the court overruled. At trial, the State called DeOwn Roth to testify about the April 12 incident. Defendant objected to the court's allowing Roth to testify, and the court overruled the objection. Roth testified that he was a LOMR human service instructor at a group home at which defendant and the other victim stayed. Roth testified that on April 12, he heard the other victim yelling. Roth investigated and found the other victim in the bathroom seated on the toilet with his pants down. Roth testified that defendant was kneeling 2 to 2 feet away from the other victim, with his pants down. Roth also stated that defendant's penis was erect. Apparently, this incident was not reported to the police, and defendant was not charged with any wrongdoing regarding this incident.
psychological evaluation on him at the [2 Neb.App. 786] prosecutor's request. Dr. Carmer stated as his opinion that the victim could not understand the concept of sexuality and would not be able to understand what a sexual assault was. Dr. Carmer testified that his opinion was based in part upon the examination he performed at the prosecutor's request.
The jury found defendant guilty, and the court sentenced defendant to 45 days in jail. Defendant appealed to the district court for Lancaster County, which affirmed the conviction and sentence. Defendant thereafter timely appealed to this court.
Defendant has assigned four errors on this appeal. He contends that the district court erred in affirming the county court's judgment with regard to its denial of defendant's motion for an independent evaluation of the victim and in allowing the State to present evidence on the April 12 incident involving the other mentally retarded victim. In addition, defendant claims that the district court erred in finding that there was sufficient evidence to support the verdict and in finding that the county court did not abuse its discretion in denying defendant probation.
Defendant's Motion for Independent Evaluation.
Defendant claims that the trial court erred in denying his motion for an independent evaluation of the victim and in allowing the State to present expert testimony regarding the victim's ability to resist or appraise the nature of defendant's conduct. Defendant asserts that an independent evaluation was essential to his preparation of an adequate defense, because without an independent evaluation he was unable to rebut the testimony of the State's expert on the issue of the victim's ability to consent or resist.
The determination of whether to grant a defendant's request for a psychiatric evaluation of the victim is a matter of discretion for the trial court and will not be overturned absent an abuse of discretion. State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994); State v. Welch, 241 Neb. 699, 490 N.W.2d 216 (1992); State v. Nelson, 235 Neb. 15, 453 N.W.2d 454 (1990). The trial court may order a psychiatric examination of the victim only when the record establishes compelling reasons. Huebner, supra; Welch, supra; Nelson, supra. With regard to defense requests for psychiatric examinations, the Supreme Court has stated: " 'The purpose of a psychiatric examination in a case involving a sex offense is to detect any mental or moral delusions or tendencies causing distortion of the imagination which would affect the probable credibility of the complaining witness.' " Huebner, 245 Neb. at 346, 513 N.W.2d at 289. Accord, Welch, supra; State v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992); Nelson, supra.
Unlike in the above-cited cases, the purpose of the proposed psychiatric or psychological examination in this case was not to Other jurisdictions have addressed this issue in cases analogous to the one we presently face. In State v. Rhone, 566 So.2d 1367 (Fla.App.1990), the defendant was charged with sexual battery. The state sought to introduce expert testimony that the victim suffered from "Battered Spouse Syndrome," which rendered the victim incapable of consenting to sexual intercourse. The defendant moved for an independent psychological evaluation of the victim. In a pretrial order, the trial court ordered both sides to submit lists of psychologists, from which the court was to select an independent examining expert. The state petitioned for writ of certiorari, and the Florida District Court of Appeal denied the state's petition, stating:
determine the victim-witness' credibility. Rather, the purpose of the proposed examination in the present case was to rebut the State's expert testimony that the victim was incapable of understanding the concept of sexuality, i.e., whether he was mentally capable of appraising the nature of defendant's conduct. See § 28-320(1)(b). Therefore, we must determine whether this purpose establishes a compelling need on behalf of [2 Neb.App. 788] defendant and, if so, whether the trial court abused its discretion in denying defendant's requests for an independent examination.
"[W]hile we do not expressly reject the concept of the court possessing inherent power to require such an examination under the most compelling of circumstances where it is necessary to insure a just and orderly disposition of the cause, we would discourage...
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