State v. Eldred

• Decision Date: 04 February 1997
• Docket Number: No. A-96-361,A-96-361
• Citation: 559 N.W.2d 519,5 Neb.App. 424
• Parties: STATE of Nebraska, Appellee, v. James ELDRED, Appellant.
• Court: Nebraska Court of Appeals

Page 519

559 N.W.2d 519

5 Neb.App. 424

STATE of Nebraska, Appellee, v. James ELDRED, Appellant.

No. A-96-361.

Court of Appeals of Nebraska.

Feb. 4, 1997.

Syllabus by the Court

1. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, except in those instances under the Nebraska Evidence Rules where judicial discretion is a factor involved in the admissibility of evidence.

2. Rules of Evidence: Appeal and Error. Neb.Evid.R. 103, Neb.Rev.Stat. § 27-103 (Reissue 1995), provides that error may not be predicated upon a ruling excluding evidence unless a substantial right of the party is affected and unless the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.

3. Rules of Evidence: Proof: Appeal and Error. Neb.Evid.R. 103, Neb.Rev.Stat. § 27-103 (Reissue 1995), has not changed the general rule that where evidence is excluded, an offer of proof is generally a prerequisite to review on appeal.

4. Rules of Evidence: Witnesses. Neb.Evid.R. 608, Neb.Rev.Stat. § 27-608 (Reissue 1995), allows the credibility of a witness to be attacked or supported by evidence in the form of reputation or opinion, but such evidence may refer only to character for truthfulness or untruthfulness.

5. Trial: Witnesses: Proof. The reputation of a witness for truthfulness or untruthfulness must be proved by a witness qualified by an opportunity to obtain knowledge of it.

6. Rules of Evidence: Witnesses. It is improper to permit any evidence that a witness is truthful except under the provisions of Neb.Evid.R. 608, Neb.Rev.Stat. § 27-608 (Reissue 1995), which permits testimony, under certain conditions, concerning the character of a witness for truthfulness.

7. Trial: Evidence: Witnesses: Impeachment. In deciding whether to admit an opinion as to a witness' credibility, a court may consider how well the witness knew the witness to be impeached and under what circumstances the witness giving the opinion knew the witness to be impeached.

8. Rules of Evidence: Hearsay. Under Neb.Evid.R. 801(4), Neb.Rev.Stat. § 27-801(4) (Reissue 1995), a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is consistent with his or her testimony and is offered to rebut an express or implied charge against him or her of recent fabrication or improper influence or motive.

9. Rules of Evidence: Hearsay. Neb.Evid.R. 801(4)(a)(ii), Neb.Rev.Stat. § 27-801(4)(a)(ii) (Reissue 1995), permits the introduction of a declarant's consistent out-of-court statements to rebut a charge of recent 10. Evidence: Appeal and Error. Generally, any error in excluding evidence that is cumulative is not prejudicial.

fabrication only when those statements were made before the charged recent fabrication or improper influence or motive.

11. Sentences: Appeal and Error. Unless the sentencing court has abused its discretion in imposing a sentence within the statutory limits, such sentence will not be disturbed upon appeal.

Anthony S. Troia, Omaha, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein for appellee.

MILLER-LERMAN, C.J., and IRWIN and SIEVERS, JJ.

SIEVERS, Judge.

The defendant, James Eldred, was charged in August 1995 with two counts of first degree sexual assault under Neb.Rev.Stat. § 28-319(1)(a) (Cum.Supp.1994), Class II felonies. The charges specified that Eldred had subjected his daughter Christine to sexual penetration during the month of May 1994 in count I and during the month of August 1994 in count II. After a jury trial in late January 1996 in the Sarpy County District Court, Eldred was convicted of both counts and sentenced to not less than 5 nor more than 15 years' imprisonment on each count, with the sentences to run concurrently. Eldred now appeals to this court.

FACTUAL BACKGROUND

James Eldred and Judy Eldred had six children. Those children included two biological daughters, Robin and Rae, and two foster daughters, Penny and Christine (Chrissy), who were adopted before they were both age 3. We mention the victim's older sisters because their testimony is significantly involved in this appeal.

The incident charged in count I allegedly occurred in May 1994 at a time when only Eldred, Judy, and Chrissy were residing in the family home. On this day in May, the last day of school, Chrissy apparently had a baseball cap stolen from her, which caused some sort of dispute between her and her father. That dispute evolved into whether she was appropriately cleaning her room. Chrissy testified that her father became angry with her, punched her in the face, then pushed her down on a bed and pulled up her shirt, pulled down her pants, and had sexual intercourse with her.

The incident charged in count II allegedly occurred in August 1994 on a night when Penny was to pick up Chrissy and take her to a dance. Penny related that she arrived a few minutes early and saw her father coming up from the basement, where a bedroom was located, zipping up his pants. Penny testified that Eldred told her that "if I got into it that the same thing would happen to me." Penny related that Chrissy's makeup was smeared all over her face, her dress was torn, and she was crying. Penny testified that Chrissy said that her father had forced her to have sex with him. At this time, Eldred was in his sixties and Chrissy was 15. Chrissy testified that on the day of the incident she had gotten in a fight with her father because he did not want her going to the dance with Penny and that he had been drinking. After a jury trial, Eldred was convicted of both counts of sexual assault.

Because evidentiary rulings during the testimony of the other daughters are assigned as error, we withhold further detailing of that evidence until discussion of those individual assignments of error. However, at the outset, it may be of benefit to state that the case has a certain overtone to it. Summarized and simplified, it is that an adopted daughter's (Chrissy's) claim of sexual molestation by her father is supported by Penny, another adopted child of the defendant. The defendant father attempted to bolster his denial of such conduct by attacking the credibility of Chrissy and Penny with testimony from his two biological daughters, Robin and Rae.

ASSIGNMENTS OF ERROR

Eldred alleges that the district court erred when (1) it refused to allow Robin to testify to an inconsistent statement made by her sister Penny, (2) it refused the testimony of

Robin and Rae regarding the reputation for truthfulness of their sister Penny, (3) it refused the testimony of Robin and Rae regarding the reputation for truthfulness of Chrissy, (4) it allowed Penny to testify as to what Chrissy told her about the August sexual assault the night the incident occurred, (5) it refused to allow Eldred to testify that he had filed a complaint against Chrissy in juvenile court, and (6) it imposed excessive sentences.

STANDARD OF REVIEW

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, except in those instances under the Nebraska Evidence Rules where judicial discretion is a factor involved in the admissibility of evidence. State v. Anderson, 245 Neb. 237, 512 N.W.2d 367 (1994). Where discretion is involved in the admission of evidence, the appellate court reviews rulings on evidence for an abuse of discretion. State v. Eona, 248 Neb. 318, 534 N.W.2d 323 (1995).

ANALYSIS

Robin's Testimony About Penny's Allegedly Inconsistent Statement.

Eldred alleges that the trial court erred when it did not allow him to question Robin about whether Penny had stated to Robin that Penny had made up the allegation that Eldred sexually assaulted Chrissy. However, the record of the trial does not support Eldred's claim that Eldred attempted to elicit this testimony.

In addition to her testimony of her observations regarding the August 1994 incident and the statement Chrissy made to her that Eldred sexually assaulted her, Penny testified at trial that she did not really have a relationship with her father while growing up because he was always drunk. She testified that she moved out of the home, but maintained a relationship with Chrissy, who remained in the home. Penny stated that there were times when she would be on the phone with Chrissy and Chrissy would have locked herself in her bedroom while Eldred would yell and scream in the background. On cross-examination, Eldred's trial counsel asked:

Q It's your testimony that Mr. Eldred was drunk all the time, most of the time was mean; is that correct?

A Yes, it is.

Q Was physically abusive. Did he hit your mom?

A Yes, he did.

Q No one was ever called on that, no police were ever called?

A There were police at our house several times.

Q Was it for Mr. Eldred abusing anybody or was it for people being uncontrollable, if you recall? You haven't been there in seven years; correct?

A Correct.

Q You are just hearing that police have been called, but you don't know why they were called.

A Yes.

Q Did you ever tell your sisters that you made up these stories just to get your dad in trouble?

A No, I did not.

Q When they come in and testify they are lying?

A Yes, they are.

(Emphasis supplied.)

Eldred claims in his brief on appeal that the question emphasized above referred to Penny making up the story of Eldred's sexual assault of Chrissy. Even taken in context, the question is simply too vague to know to what the phrase "these stories" refers. "[T]hese stories" could refer to the drinking, the physical abuse of Penny's mother, the yelling and screaming, the police being called, or something else. Thus, at the outset, the imprecision of the preliminary question is clearly a significant problem.

Eldred then claims in his...