State v. Freeman
| Citation | 571 N.W.2d 276,253 Neb. 385 |
| Decision Date | 05 December 1997 |
| Docket Number | No. S-95-1027,S-95-1027 |
| Parties | STATE of Nebraska, Appellee, v. Thomas FREEMAN, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.
2. Convictions: Appeal and Error. On review, a criminal conviction must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. In determining whether the evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented to the jury, which are within the jury's province for disposition.
3. Convictions: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact; a conviction will be affirmed in the absence of prejudicial error if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.
4. Trial: Joinder: Appeal and Error. A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion.
5. Rules of Evidence: Other Acts: Appeal and Error. Because the exercise of judicial discretion is implicit in Neb. Evid. R. 401, it is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 404(2) and 403, and the trial court's decision will not be reversed absent an abuse of that discretion.
6. Trial: Joinder: Proof: Appeal and Error. A defendant opposing joinder of charges has the burden of proving that joinder will be prejudicial to the defendant.
7. Trial: Joinder: Proof. A defendant has no constitutional right to a separate trial. The right is statutory and depends upon a showing that prejudice will result from a joint trial.
8. Trial: Joinder: Evidence: Appeal and Error. A defendant is not prejudiced by the joinder of charges where the evidence relating to both offenses would be admissible in a trial of either offense separately.
9. Rules of Evidence: Other Acts. The evidence of other crimes need not be identical to the act charged to be admissible under Neb. Evid. R. 404(2). The evidence will be admitted if it is similar to and reasonably related to the offending conduct and is presented in a manner in which the prejudice does not outweigh its probative value.
10. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2) is a rule of inclusion, rather than exclusion, and it permits the use of evidence of prior activity except to prove the character of a person in order to prove that the person acted in conformity with that character.
11. Rules of Evidence: Other Acts: Appeal and Error. An appellate court reviews the admission of other acts under Neb. Evid. R. 404(2) by considering (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.
12. Sexual Assault: Evidence: Other Acts. Sexual crimes are of a nature that evidence of other similar sexual conduct has independent relevance, and such evidence may be admissible against a defendant irrespective of whether that conduct involved the complaining witness or third parties.
13. Rules of Evidence: Jury Instructions. Where the evidence intended to be offered has qualified under the first two prongs of the test for admission under Neb. Evid. R. 404(2), i.e., relevance and proper purpose, the determination of whether the evidence is unfairly prejudicial depends upon whether the trial court properly instructed the jury on the limited purpose of the admission of that evidence.
14. Evidence. There is nothing controversial about the theory underlying DNA typing, for there is a general scientific acceptance of the theory underlying DNA identification.
15. Evidence. Prior to the admission of DNA evidence, the trial court should hold a Frye hearing, see Frye v. United States, 293 F. 1013 (D.C.Cir.1923), outside the presence of the jury to consider a six-part test for admission, to wit: (1) whether the witnesses on the DNA issue are experts in the relevant scientific fields, (2) whether DNA profile testing used in the case under consideration is generally accepted by the relevant scientific community, (3) whether the method of testing used in the case under consideration is generally accepted as reliable if performed properly, (4) whether the tests conducted properly follow the method, (5) whether DNA analysis evidence is more probative than prejudicial under Neb. Evid. R. 403, and (6) whether statistical probability evidence interpreting DNA analysis results is more probative than prejudicial.
Thomas M. Kenney, Douglas County Public Defender, and Gary D. Olson, Omaha, for appellant.
Don Stenberg, Attorney General; James S. Jansen, Douglas County Attorney and Donald W. Kleine, Chief Deputy County Attorney and Special Assistant Attorney General, for appellee.
Thomas Freeman was convicted of eight counts of first degree sexual assault and four counts of use of a weapon to commit a felony. The Nebraska Court of Appeals affirmed the convictions and sentences, and we granted Freeman's request for further review.
A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Ready, 252 Neb. 816, 565 N.W.2d 728 (1997); State v. McCleery, 251 Neb. 940, 560 N.W.2d 789 (1997); State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996).
On review, a criminal conviction must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. In determining whether the evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented to the jury, which are within the jury's province for disposition. State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).
Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact; a conviction will be affirmed in the absence of prejudicial error if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996); State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996).
A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion. State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995).
Because the exercise of judicial discretion is implicit in Neb. Evid. R. 401, it is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 404(2) and 403, and the trial court's decision will not be reversed absent an abuse of that discretion. State v. Eona, 248 Neb. 318, 534 N.W.2d 323 (1995); State v. Williams, 247 Neb. 878, 530 N.W.2d 904 (1995).
Following is a factual summary of the eight sexual assaults which are the subject of this appeal. The assaults occurred in Omaha, Nebraska, between March 31 and August 24, 1993.
At 11:30 p.m. on March 31, 1993, Victim 1 was entering her apartment building in the 2400 block of North 94th Plaza. She was grabbed from behind by a man who covered her face with his hand and carried her around the building. Victim 1 was threatened a number of times and told not to make any noise or she would be killed. She was placed on the ground, and her jacket was pulled over her head so that she could not see. During the assault, the assailant attempted vaginal penetration, but apparently, he did not have an erection. During the assault, the man tried to kiss her and said, "Give me some tongue."
Victim 1 did not see the man's face, but saw his neck and described his skin as being black. Also, from the sound of his voice, the victim believed the assailant to be an African-American man. Freeman was subsequently charged with sexual assault in the first degree (count I).
On April 4, 1993, while driving...
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