State v. Edwards
| Citation | 28 Neb.App. 893,949 N.W.2d 799 |
| Decision Date | 29 September 2020 |
| Docket Number | No. A-19-383.,A-19-383. |
| Parties | STATE of Nebraska, appellee, v. Robert E. EDWARDS, Sr., appellant. |
| Court | Court of Appeals of Nebraska |
Brandon J. Dugan, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.
Robert E. Edwards, Sr., appeals from his conviction and sentence in the district court for Custer County for one count of first degree sexual assault of a child. The court sentenced him to 25 to 30 years’ imprisonment. On appeal, Edwards assigns error to various evidentiary rulings by the court and its denial of his motion to suppress, challenges the sufficiency of the evidence to convict him, and asserts that the court imposed an excessive sentence. We find that the district court erred in fulfilling its gatekeeping function required under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop , 262 Neb. 215, 631 N.W.2d 862 (2001) ( Daubert / Schafersman ), with respect to the admission of evidence regarding grooming in child sexual assault cases. Therefore, we reverse the conviction and remand the cause for a new trial.
On June 24, 2017, Deputy Sheriff Rachel Davis met with J.E.’s parents regarding an alleged sexual assault of J.E. by her grandfather, Edwards, which took place on June 19. At the time of the alleged assault, J.E. was 4 years old and Edwards was 70 years old. After meeting with J.E.’s parents, Davis scheduled a forensic interview of J.E. for June 27 at the Family Advocacy Network (FAN) in Kearney, Nebraska. During that interview, J.E. said that while she was at the local public swimming pool with Edwards, he put his fingers in her "pee-pee," which she identified as her vaginal area, and that it "very, very hurt." The accompanying medical examination at the FAN revealed internal vaginal injuries consistent with digital penetration. On June 29, when Davis interviewed Edwards at his home, he denied doing anything to J.E. Edwards was subsequently arrested.
On September 19, 2017, the State filed an information in the district court, charging Edwards with first degree sexual assault of a child in violation of Neb. Rev. Stat. § 28-319.01 (Reissue 2016), a Class IB felony. The State alleged that on or about June 19, Edwards, a person 19 years of age or older, subjected J.E., a person less than 12 years of age, to sexual penetration.
On September 17, 2018, the State filed a motion pursuant to Neb. Rev. Stat. § 27-414 (Reissue 2016) to introduce evidence through the testimony of J.E.’s sister of Edwards’ prior bad acts.
On September 19, 2018, Edwards filed a motion in limine, seeking to exclude certain evidence at trial. As relevant to the present appeal, Edwards sought to exclude (1) evidence of "any of the prior bad acts alleged in the State's Motion for 414 evidence," along with any other bad acts evidence pursuant to Neb. Rev. Stat. § 27-404 (Reissue 2016) or § 27-414 ; (2) hearsay testimony of any and all witnesses as to J.E.’s statements; (3) any testimony by Dr. Susan Greenwald, the doctor who conducted the medical examination of J.E. at the FAN, or any other witness as to the " ‘grooming’ technique as disclosed in [Greenwald's] deposition" for reasons including that it did not meet the standard of Daubert / Schafersman ; and (4) "any expert testimony of any witness or reports thereof not specifically authorized by the Court prior to being offered" ( testimony of forensic interviewer Kori Peters as to any " ‘grooming’ technique").
At the hearings on Edwards’ motion in limine and the State's motion regarding prior bad acts evidence, the district court heard testimony from witnesses, including J.E.’s mother and sister. The court also received evidence concerning statements made by J.E. and Greenwald's anticipated testimony, including the depositions of J.E., her mother, Greenwald, and Peters and certain statements in the deposition of J.E.’s sister.
With respect to the alleged prior bad acts by Edwards, J.E.’s mother testified regarding two prior incidents, one involving Edwards and J.E.’s cousin and one involving Edwards and herself. The first incident described by J.E.’s mother occurred about 6 or 7 years before the hearing. According to the mother, Edwards was watching her "playing around" with J.E.’s cousin, who was 17 or 18 years old. After the mother and cousin went into another room and sat on the couch, Edwards followed, said something, and grabbed the cousin's breast. The mother stated that she said to Edwards, "what the hell are you doing," but that he simply turned around and left the room. She acknowledged that while she and the cousin were "playing around," the cousin had "grabbed [the mother's] breast." The mother indicated that the second incident occurred around 2000 or 2001. She stated that she was on her hands and knees cleaning up a spill on the floor when Edwards came up from behind her, held her down on the floor, and would not let her get up.
J.E.’s sister was 23 years old at the time of her testimony about prior incidents involving Edwards, occurring when she lived in Maryland. The sister has various "developmental delays," including being "[b]orderline handicapped," and she has "hearing impairment, memory loss, and seizures." The sister testified that when she was about 7 years old, Edwards would sit in a rocking chair, put her on his lap, and rock her "back and forth." While doing this, he would "put his hand up [her] shirt and he would grab for the breast area, and then after that he would put his hand over down to [her] private area." According to the sister, when she was about that same age, she would be with Edwards in his semi-truck and he would "try to unzip [her] pants." According to the sister, these incidents happened on more than one occasion. The sister testified that during the same period, Edwards regularly and publicly referred to her as his "girlfriend" or "wife"; she indicated that Edwards has referred to J.E. by those terms as well.
According to Greenwald's deposition testimony, she had previously testified as an expert witness in various civil, criminal, and juvenile court proceedings. According to her curriculum vitae, she has been a child forensic examiner since 1986 and an independent contractor for the FAN since 2001. She also had a general pediatric practice from 1986 to 2015.
Greenwald has had formal training on the issue of grooming and has had experience conducting "hundreds" of examinations of molested children in seeing "how their molesters have gained access" to them. Greenwald has not published any works of her own or peer-reviewed articles on the concept of grooming, because she is a clinician and not a researcher.
Greenwald testified about her examination of J.E., which she described as being "abnormal" both due to the redness and swelling in J.E.’s vaginal area and because J.E. was "basically too cooperative." Greenwald testified that 4-year-old children do not normally "just lay down and spread their legs for you," which J.E. did. Greenwald indicated that J.E. "held perfectly still" for the examination, which was also unusual, and that she was "very cooperative, very docile." Greenwald testified that this was significant because in her experience children who have been "coached or groomed" by a sexual molester are much more docile during an examination than children who have not.
Greenwald provided further testimony regarding grooming, which she described as a "clinical term," involving gaining a child's trust through things such as buying them gifts and doing fun activities like playing games with them. She said grooming will often include pornography. She testified that grooming might start by having the child sit on the person's lap "and then just gradually working up to sexual activity." Greenwald indicated that a perpetrator could use such normal activities as a way of "desensitizing the child" to progressively more sexual kinds of touching. She testified that while there are many ways to groom a child, they all involve gaining the child's trust and "basically teaching them to be sexual creatures." According to Greenwald, grooming is "very common" in child abuse cases and is usually done by someone the child trusts, such as a family member or someone close to the family. Greenwald has seen perpetrators who engage in grooming "switch victims."
Greenwald testified that in her experience, she felt that J.E. was exhibiting behaviors of someone who had been groomed. She was not asked and did not provide any testimony as to whether any particular actions by Edwards constituted grooming.
In Peters’ deposition, she testified about her forensic interview of J.E. at the FAN on June 27, 2017. She did not testify regarding grooming.
The district court subsequently entered orders ruling on the State's motion to admit evidence of prior bad acts and Edwards’ motion in limine. With respect to the evidence of the alleged prior incidents involving J.E.’s cousin and sister, the court found clear and convincing evidence that Edwards committed sexual offenses against them and determined that the evidence was admissible under § 27-414. As to J.E.’s statements, the court assumed Edwards was objecting to statements made by J.E. to her parents regarding the alleged sexual assault. The court denied Edwards’ motion with respect to those statements, finding that the circumstances surrounding them satisfied the excited utterance exception to the hearsay rule. Finally, the court determined that the "combination of Dr. Greenwald's education, experience, and training in the area of child sexual abuse was sufficient to admit her testimony regarding grooming patterns and behavior." The court stated that such testimony "is useful for the jury to evaluate the...
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...made by the victim under the stress of the event. We hold that it does not. A similar argument was made in State v. Edwards, supra. In Edwards, a child reported to mother that her "pee-pee" hurt because her "papa put his fingers in there" the evening following the alleged incident. This cou......
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