State v. Ewinger, A-18-470.
| Decision Date | 22 October 2019 |
| Docket Number | No. A-18-470.,A-18-470. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. KYLE T. EWINGER, APPELLANT. |
| Court | Court of Appeals of Nebraska |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge. Affirmed.
Joseph L. Howard, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.
Kyle T. Ewinger appeals his conviction of first degree sexual assault on a child and the sentence imposed thereon. Ewinger alleges numerous assignments of error. Having considered each of his assignments of error, Ewinger's conviction and sentence are affirmed.
In 2011, the victim, who was 8 years old, and his mother lived in Omaha, Nebraska. Late that year, the victim's mother and Ewinger met online. Ewinger, who was a school teacher and coached various sports, lived in Sioux City, Iowa. They had their first date in January 2012. According to the victim's mother, a close relationship quickly formed between her, Ewinger, and the victim. As Ewinger became more involved in the victim's life, he began to watch the victim overnights while the victim's mother worked overnight shifts as a nurse at a hospital.
Ewinger and the victim's mother's relationship continued to progress quickly and they became engaged in April 2012. During that summer, the victim went to Sioux City to stay with Ewinger while the victim's mother was working long hours and overtime at the hospital. The victim later alleged that, during this time period, Ewinger began to sexually assault him. The victim said that Ewinger made him have oral sex, that Ewinger would ejaculate into the victim's mouth, and that Ewinger would have the victim shower with him. The victim stated that sometimes Ewinger used a clear lubricant that came in a bottle. The victim did not tell anyone because he was scared of Ewinger.
In late July 2012, Ewinger moved in with the victim and his mother in Omaha. Ewinger took a job teaching at an elementary school in Iowa and the victim's mother continued working overnight shifts as a nurse at a hospital. In October, Ewinger and the victim's mother were married. According to the victim, Ewinger continued to sexually assault him in the same manner as in Sioux City except that Ewinger no longer showered with him and Ewinger began anally penetrating him. These sexual assaults always occurred at night when the victim's mother was at work. Ewinger threatened the victim not to tell anyone about the assaults, saying that no one would believe him and that "something could happen." The victim stated that he believed Ewinger's threats so the victim did not tell anyone and he continued acting normal.
The victim, his mother, and Ewinger continued living in Omaha until July 2013 when they moved to Sibley, Iowa, after Ewinger accepted a job teaching at a middle school and coaching high school sports. According to the victim, the sexual assaults stopped once they moved to Sibley, which coincided with the victim's mother no longer working overnight shifts. Also occurring upon the move to Sibley was the shift in sleeping arrangements between Ewinger and the victim's mother. Once the parties purchased their home in Sibley in October, Ewinger always slept in the basement on a sectional couch due to their deteriorating relationship.
A few years after moving to Sibley, in the summer of 2015, the family met C.A. at the local swimming pool. C.A. was about 2 years younger than the victim and had a difficult home life. The victim's mother and Ewinger took an interest in C.A., getting him involved in the youth football program, helping him with transportation to practices and games, and feeding him dinner and snacks. Then, when school started in the fall of 2015, C.A. was a student in Ewinger's social studies class. C.A. also started staying overnight at Ewinger's house sleeping in the basement with Ewinger on the sectional couch. Although the victim's mother tried to speak with Ewinger about the inappropriate nature of the sleeping arrangements, Ewinger refused to discuss the issue.
Sometime in late September or early October 2015, the victim's mother saw homosexual pornography on Ewinger's cell phone that involved "[m]en made to look younger with men who appeared to be older." The victim's mother confronted Ewinger who did not deny looking at the pornography, but answered that she did not "understand how hard it was for a man to have a problem with erectile dysfunction, and that he was just trying to find anything that would work to be able to give him an erection." The victim's mother installed a monitoring application on Ewinger's cell phone that allowed her to see Ewinger's web history and text messages on her cell phone. After installing this app, the victim's mother was able to see that Ewinger searched for websites using search terms such as "free man and boy sex stories," "gay sex," "game offornication," and "boy and man sex stories." After discovering these searches, the victim's mother again confronted Ewinger and asked him if he had ever done anything to the victim, which Ewinger denied. At that point, the victim's mother informed Ewinger that the searches were not going to help their marriage and she wanted him to leave. This happened on a Monday night; Ewinger did not leave that night, but he did not come home from work the following day. On Wednesday, Ewinger stopped by the house to talk with the victim's mother, who removed the monitoring application from his cell phone at Ewinger's request, and Ewinger told her that he was staying at the school. According to C.A., that Friday night, Ewinger attempted to drop C.A. off at C.A.'s mother's and grandmother's homes but nobody answered at either residence. Ewinger took C.A. back to the school with him. Ewinger had an air mattress to sleep on in his classroom and the two slept on that air mattress together. C.A. alleged that during the night, Ewinger touched C.A.'s "privates," moving his hand "up and down" and that Ewinger told C.A. not to tell anyone or C.A. would get in trouble.
At around 6 a.m. the following morning, the school superintendent, Wilbur Boer, went to the school because he had heard that Ewinger had been sleeping there. After looking in a few different places in the school, Boer went to Ewinger's classroom. Using his master key, Boer unlocked the classroom door, flipped on the lights, and saw a shirtless Ewinger and C.A. laying on an air mattress with a "red blanket overtop." Boer immediately shut the light off, closed the door, and left to speak with a school board member. Later that day, Boer went back to Ewinger's classroom and did a quick search, then returned the following day and searched Ewinger's desk, where he found a bottle of Viagra and a container of Equate personal lubricant. Following this incident, there was a "level one investigation" by the school authorities which included an interview of C.A. who said that nothing inappropriate had occurred. In mid-October, 2015, a public school board meeting was held, after which Ewinger was fired "for sleeping at the school with a student."
At some point that fall, Ewinger resumed staying at the home with the victim and the victim's mother. However, in January 2016, the victim called the police after an altercation between Ewinger and the victim's mother. That altercation effectively ended the relationship between Ewinger and the victim's mother; however, there still was communication between the two parties after that time.
In April 2016, C.A. told his mother that Ewinger had sexually assaulted him that night at the school in October 2015.
In May 2016, the victim tearfully disclosed to his mother that Ewinger had previously sexually assaulted him. This disclosure led the victim's mother to contact law enforcement who set up a forensic interview for the victim at Project Harmony. Thereafter, Ewinger was arrested and charged with first degree sexual assault of a child, a Class IB felony, with the date of the offense charged from July 1, 2012 through July 31, 2013. See Neb. Rev. Stat. § 28-319.01 (Reissue 2016).
Prior to trial, the State filed a motion notifying Ewinger that it intended to offer prior bad acts evidence pursuant to Neb. Evid. R. 404(2), Neb. Rev. Stat § 27-404(2) (Reissue 2016), and Neb. Evid. R. 414, Neb. Rev. Stat. § 27-414 (Reissue 2016), regarding an alleged sexual assaultby Ewinger of a different minor child, C.A., in October 2015. The parties agreed that the depositions of the victim, the victim's mother, and C.A. would be used as evidence on the State's motion in lieu of live testimony. The district court granted the State's motion pursuant to rule 414 ruling that C.A. would be allowed to testify at trial but also noted that the court's ruling was "subject to change after evidence has been presented at trial." The court noted that, although the State's motion included rule 404(2), neither party presented any argument or caselaw on that statute; therefore, the court did not analyze the admissibility of the prior bad acts evidence pursuant to rule 404(2). Additionally, the court's order stated that
During jury selection, a prospective juror made certain comments in response to the State's inquiries regarding the effect of the presumption of innocence that Ewinger contends contaminated the jury pool. The entire exchange between the prospective juror and the State is set forth later...
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