State v. Egger

Decision Date12 October 1999
Docket Number No. A-98-1120., No. A-98-1119
Citation8 Neb. App. 740,601 N.W.2d 785
PartiesSTATE of Nebraska, appellee, v. Ronald Lee EGGER, appellant.
CourtNebraska Court of Appeals

Gregory J. Beal, of Gregory J. Beal & Associates, P.C., for appellant.

Don Stenberg, Attorney General, and Donald J.B. Miller for appellee.

HANNON, MUES, and INBODY, Judges.

HANNON, Judge.

INTRODUCTION

In 1997, Ronald Lee Egger was separately charged with and convicted of first degree sexual assault on a minor and incest for acts committed against his minor stepdaughter. The charges were consolidated for trial and are heard together on appeal. Egger alleges the trial court erred in (1) admitting evidence of his physical abuse of the victim and her family, (2) refusing to admit testimony from Egger's therapist that Egger looked astonished when he related the sexual allegations to the therapist and that he denied the sexual abuse, (3) denying his motion for new trial based on newly discovered evidence, and (4) imposing an excessive sentence. Egger also alleges error in three other inconsequential matters which we discuss and reject below. We find that (1) the evidence of his physical violence was admissible as relevant to explain the victim's delay in reporting the sexual abuse, (2) the offered testimony of his therapist was inadmissible hearsay and improper character evidence, (3) the trial court did not abuse its discretion on denying the motion for a new trial because the motion was filed more than 10 days after the verdict and the offered newly discovered evidence was cumulative and related only to the credibility of witnesses, (4) the sentence was not excessive, and (5) the other assignments of error were improper and otherwise unavailing. Accordingly, we affirm.

FACTS

In reviewing a criminal conviction for prejudicial error, we view the facts most favorably for the State. See, e.g., State v. Hill, 254 Neb. 460, 577 N.W.2d 259 (1998). Further, we do not resolve jury questions such as contradictions in the evidence or credibility of the witnesses. Id. Our summary of the evidence is given with these rules in mind.

Egger married Melodie Egger in October 1992, and they lived in Kimball, Nebraska. Melodie Egger had three daughters from a prior marriage, M.D., the victim; D.D.; and T.D., who all lived with Melodie Egger and Egger. At the time of Melodie Egger's marriage to Egger, M.D., the oldest daughter, was in the sixth grade and 11 years old.

M.D. testified that Egger began sexually abusing her in May 1995 and continued doing so until she was placed with a foster family in January 1997. At trial, M.D. related graphic details of numerous instances of oral and vaginal intercourse. In our description of the facts, we avoid relating the specific details of Egge's sexual activities with M.D. We simply note that at trial, M.D. described many acts of sexual penetration between Egger and M.D. occurring in Cheyenne County as well as Kimball County and Iowa between May 1, 1995, and January 24, 1997. We also note that Egger did not object at trial to the admission of the acts occurring outside Cheyenne County.

The first act of intercourse occurred in M.D.'s bedroom in Kimball. While Melodie Egger was at work and D.D. and T.D. were asleep on another floor of the home, Egger came into M.D.'s room and talked about having sex with her. M.D. expressed worries about becoming pregnant, but Egger explained that he had been "fixed" and that "no one [could] have babies with [him]." He then undressed and had M.D. look at and feel the vasectomy scar on his scrotum. M.D. testified in detail about the scar and the fact that Egger was uncircumcised, accurately describing the scar's texture, position, and size. Her description matched the descriptions given by Egger's former wife and a physician who examined Egger. A few other instances of intercourse occurred between Egger and M.D. before the family moved from Kimball (in Kimball County) to Sydney, Nebraska (in Cheyenne County).

In December 1996, Egger took M.D. to see Egger's father in Iowa, near Council Bluffs. Along the way, they shopped in a mall in Council Bluffs, where both bought a pair of shoes and where Egger also bought a red "teddy" from a lingerie store. Rather than stay at Egger's father's house, the two stayed in a motel, where Egger had M.D. wear the lingerie and engage in sexual intercourse with him.

In total, Egger subjected M.D. to approximately 35 to 40 acts of sexual penetration between May 1, 1995, and January 24, 1997. The testimony at trial described most of the acts as occurring in Cheyenne County, such as in Egger's bedroom, in his home office, in his recliner, in M.D.'s bedroom, and in the family's camper parked near the house.

Despite opportunities to do so, M.D. did not report the sexual abuse until after January 27, 1997, when she was put into foster care. Throughout the time Egger was abusing her, he told M.D. that she should not disclose their sexual activities and that she had "better watch out" if she ever did. The evidence would support a finding that M.D.'s fear of Egger was real, based on the testimony that M.D. observed Egger physically abuse her and her family. For example, Egger had thrown a hammer at M.D., hit her with his hand, and kicked her. He also hit D.D. and T.D. and beat Melodie Egger to the point where she needed hospitalization. In January 1997, Egger was arrested and subsequently pled guilty to assault for hitting T.D. in the face with his fist after he had upset the kitchen table while the family was eating dinner. M.D. testified that she was afraid of Egger for herself and her sisters.

After Egger's sexual abuse was reported, M.D. underwent a vaginal exam in July 1997, but no physical evidence of trauma was found. However, the State's medical expert testified that physical signs are not seen in abuse cases approximately 70 percent of the time, particularly after time has passed between the exam and the last incident. Egger produced medical testimony that a vaginal exam would be expected to show some physical evidence of abuse as described by M.D.

Egger denied having any sexual contact with M.D. and attacked her credibility at trial, claiming she had fabricated her testimony. The jury found Egger guilty of sexual assault in the first degree, pursuant to Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1995), and incest, pursuant to Neb.Rev. Stat. § 28-703(1) (Reissue 1995), and the trial court sentenced him to concurrent sentences of 25 to 40 years' and 15 to 20 years' imprisonment respectively. Egger unsuccessfully moved for a new trial, and he now appeals his convictions and sentences.

ASSIGNMENTS OF ERROR

Egger assigns six errors, which we have reordered as follows: The trial court erred in (1) overruling Egger's motion in limine regarding his physical abuse of the family, (2) making various rulings on the reception of evidence and in overruling Egger's objections to evidence, (3) denying Egger's motion for a new trial based on newly discovered evidence, (4) imposing excessive sentences, (5) committing any plain error on the record, and (6) coaching the prosecutor on how to offer hearsay evidence. Further, Egger argues but did not assign error on the sufficiency of the evidence to support the verdict and on refusing to admit testimony from his therapist that Egger looked astonished and that he denied the sexual abuse.

STANDARD OF REVIEW

With respect to Egger's appeal regarding the admission of his violent acts against the family and the exclusion of his therapist's statements, we note: "In all proceedings where the Nebraska Evidence Rules apply,admissibility of evidence is controlled by the rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in the admissibility of evidence." State v. Carter, 255 Neb. 591, 596-97, 586 N.W.2d 818, 825 (1998). With respect to Egger's motion for new trial, "[t]he standard of review for the denial of a motion for new trial is whether there was an abuse of discretion by the trial court." State v. Krutilek, 5 Neb.App. 853, 865, 567 N.W.2d 797, 805 (1997). In regard to his claim of excessive sentences, "[a] sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court." State v. Pattno, 254 Neb. 733, 734, 579 N.W.2d 503, 505 (1998), cert. denied ___ U.S. ___, 119 S.Ct. 796, 142 L.Ed.2d 659 (1999).

"A judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition." Cedars Corp. v. Sun Valley Dev. Co., 253 Neb. 999, 1004, 573 N.W.2d 467, 471 (1998).

ANALYSIS

Motion in Limine.

Egger made a motion in limine and objected throughout trial to any testimony regarding his physical abuse of M.D., D.D., T.D., and Melodie Egger. The State offered the testimony for the purpose of explaining why M.D. did not report the sexual abuse when she had the opportunity—because Egger had threatened her and she witnessed his violent tendencies against her and her family, making her fear real. The trial court admitted the evidence at trial. Egger argues its admission constituted error.

Specifically, Egger made a continuing objection to testimony from several witnesses regarding his physical violence toward other family members. The evidence included an instance when Egger threw a hammer at M.D. and hit her in the leg, an instance when Egger pushed and kicked M.D. before school, another instance when he struck T.D. with his fist, yet another instance when he beat Melodie Egger to the point where she needed hospitalization, and several instances that M.D. testified to that "[h]e just hit us all the time."

[B]ecause overruling a motion in limine is not a final ruling on admissibility of evidence and, therefore, does not present a question for appellate review, a question
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