State v. Evans

• Decision Date: 13 August 1982
• Docket Number: No. 81-807,81-807
• Citation: 212 Neb. 476,323 N.W.2d 106
• Parties: STATE of Nebraska, Appellee, v. Mervin D. EVANS, Appellant.
• Court: Nebraska Supreme Court

Page 106

323 N.W.2d 106

212 Neb. 476

STATE of Nebraska, Appellee, v. Mervin D. EVANS, Appellant.

No. 81-807.

Supreme Court of Nebraska.

Aug. 13, 1982.

Syllabus by the Court

1. Sexual Assault: Witnesses. Testimony of the prosecutrix alone, uncorroborated by any other evidence, is not sufficient to sustain a conviction for sexual assault.

2. Sexual Assault: Witnesses. In a prosecution for sexual assault, the prosecutrix may testify in chief on direct examination, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details, and others may likewise testify in chief to such fact and nature of the complaint, but not as to its details.

3. Sexual Assault: Witnesses. One to whom the complaining witness has complained may testify to the fact and nature of the complaint, if the complaint was made voluntarily and without unreasonable or inconsistent delay.

4. Sexual Assault: Witnesses. Although such complaint must be timely made, the effect of a delay in making such complaint may be alleviated by proof of a sufficient reason for the delay, such as intimidation or threats, or lack of opportunity.

5. Criminal Law: Prior Acts. As a general proposition, in a criminal prosecution evidence of crimes committed by the accused, other than that with which he is charged, is not admissible.

6. Sexual Assault: Intent: Prior Acts. However, where intent is an element of the crime charged, it is permissible to admit evidence of the defendant's prior crimes, wrongs, or acts in order to prove that the defendant possessed the requisite intent to be convicted on a charge of attempted first degree sexual assault.

7. Criminal Law: Appeal and Error. The only errors which require reversal of a cause are those prejudicial to the right of the accused, or which constitute the denial of a substantial legal right.

8. Criminal Law: Prior Acquittal. Although generally a verdict of acquittal in a former trial is not to be considered as determining the collateral question of the presence of a general plan or scheme or necessary intent for the purpose of a subsequent trial for a distinct offense, when so much of the evidence of the former trial is placed before the jury in the subsequent trial, justice requires that the evidence of the former verdict should be allowed in evidence.

9. Witnesses. In order to offer in evidence the testimony of a witness at a former trial, the proponent of such evidence must show that the declarant is now unavailable as a witness.

Paul E. Watts of Paul E. Watts & Associates, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Shanler D. Cronk, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

HASTINGS, Justice.

The defendant, Mervin D. Evans, was charged by information with attempted first degree sexual assault. Following the defendant's waiver of a jury trial, a trial was had to the court which resulted in a verdict of guilty. Defendant was sentenced to a term of not less than 3 nor more than 6 years' imprisonment. Defendant has appealed from that conviction and sentence, contending that the trial court erred in admitting certain corroborative testimony into evidence; that the trial court erred in refusing to admit into evidence the fact that defendant had been acquitted of a similar charge in a prior proceeding; and that the trial court erred in refusing to admit into evidence testimony regarding defendant's alleged sterility. We reverse.

The incident which gave rise to the information in this instance was the alleged attempted assault by the defendant of his adopted 14-year-old daughter on or about November 18, 1979. While it is not necessary to recount the details surrounding the attack, we must note that immediately following the alleged assault it was claimed that the defendant warned the prosecutrix not to tell her mother or she, the daughter, would "be in a lot of trouble." In any event, the prosecutrix did not report the incident to her mother until May 4, 1980, which was shortly after the defendant supposedly had threatened to assault her a second time. When asked why she had not reported the November 1979 incident earlier, the prosecutrix responded by saying that she was afraid that her father "would beat the heck out of me." Upon being told of the incident, the defendant's wife, the adoptive mother of prosecutrix, reported the assault to the police and defendant was taken into custody.

At the ensuing trial, the prosecutrix took the stand during the State's case-in-chief and described the alleged assault in detail. She also was allowed, over objection of defense counsel, to describe prior sexual contact between her father and herself which dated back to the time she was 6 years of age and which had culminated in sexual intercourse by the time the prosecutrix was 10 years old. Finally, also over counsel's objection, the prosecutrix was allowed to describe the events surrounding her decision to inform her mother on May 4, 1980, of the November 18, 1979, assault. These events included a threat of further sexual assaults on her by the defendant, and conversation which the prosecutrix had had with her twin sister who had also been adopted by the defendant and his wife. This conversation related to the fact that her sister had also been subjected to the defendant's sexual advances and indeed feared that she may have been made pregnant by the defendant at that time.

In what was purported to be an attempt to corroborate the testimony of prosecutrix, the prosecutor called her mother and sister to the stand. The mother confirmed the fact that the prosecutrix had reported the assault to her on the evening of May 4, 1980, and that she had in turn reported the incident to the police. The sister, however, was allowed to testify in greater detail. She reiterated the fact that she had told the prosecutrix on May 4, 1980, that the defendant had also had sexual contact with her and, in response to a direct question from the prosecutor, that she had told the prosecutrix she thought she was pregnant and that the defendant was the baby's father. Furthermore, the sister of prosecutrix was allowed, over the objections of the defense counsel, to testify to the fact that the defendant had made initial sexual advances toward her when she was around 10 years old and had engaged in sexual intercourse with her when she was 11 or 12 years of age. Such activities would occur 2 or 3 times monthly, both inside and outside of the home. Finally, the sister testified during direct examination that she had indeed had a child and that she had not engaged in intercourse with anyone other than the defendant prior to the birth of the child.

It was revealed for the first time during this action, in the course of the cross-examination of the sister of prosecutrix, that the defendant had been charged and tried on an earlier occasion on an allegation similar to the present charge. This earlier trial resulted from an incident allegedly involving the defendant and the sister of prosecutrix. Defense counsel was prohibited by the court, however, from introducing any direct evidence of the verdict in that earlier action, either through the testimony of the prosecutrix's sister or through the introduction of the journal entry of the verdict. An inadvertent comment about the verdict was made by the defendant's wife during her testimony for the defense, although an objection to the response was sustained. However, there was no motion to strike the response, so that the response regarding the defendant's acquittal remains in the record before this court.

Finally, we must note that the defense counsel was also stymied in his attempt to introduce evidence concerning the defendant's sterility in order to impeach the testimony of the prosecutrix's sister regarding her belief that the defendant had fathered her child. The trial court rejected any such evidence, which was offered in the form of transcripts of the testimony of several witnesses taken from the earlier trial, on the basis that such evidence was irrelevant, hearsay, and that there was not sufficient foundation to support its admittance.

The defendant's initial assignment of error is a broad attack on the corroborative evidence offered by the prosecution in support of the testimony of the prosecutrix. "The rule is that the testimony of the prosecutrix alone, uncorroborated by any other evidence, is not sufficient to sustain a conviction for sexual assault. [Citation omitted.]" State v. Aby, 205 Neb. 267, 269, 287 N.W.2d 68, 70 (1980). In this instance, there can be no doubt that corroborative evidence does exist. However, we must determine whether it was properly admitted in the several forms in which it was offered.

The initial form of corroborative evidence of the testimony of the prosecutrix offered by the prosecution was the testimony of her mother and her sister regarding the details of the prosecutrix's May 4, 1980, complaint of the alleged assault. "The rule is well established in this state that in a prosecution for sexual assault, the prosecutrix may testify in chief on direct examination, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details; and that others may likewise testify in chief to such fact and nature of the complaint, but not as to its details. State v Chaney, 184 Neb. 734, 171 N.W.2d 787 (1969); Sherrick v. State, 157 Neb. 623, 61 N.W.2d 358 (1953).

"This court has also stated that one to whom the complaining witness has complained may testify to the fact and nature of the complaint if the complaint was made voluntarily and without unreasonable or inconsistent delay. See, State v. Deardurff, 186 Neb. 92, 180 N.W.2d 890...