State v. Galvan, 011921 NECA, A-19-1018

Docket Nº:A-19-1018
Opinion Judge:RIEDMANN, JUDGE
Party Name:State of Nebraska, appellee, v. Phillip M. Galvan, Jr., also known as Phillip Galvin, appellant.
Attorney:Donald L. Schense, of Law Office of Donald L. Schense, for appellant. Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
Judge Panel:Riedmann, Bishop, and Welch, Judges.
Case Date:January 19, 2021
Court:Court of Appeals of Nebraska

State of Nebraska, appellee,

v.

Phillip M. Galvan, Jr., also known as Phillip Galvin, appellant.

No. A-19-1018

Court of Appeals of Nebraska

January 19, 2021

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Sarpy County: Nathan B. Cox, Judge. Affirmed.

Donald L. Schense, of Law Office of Donald L. Schense, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.

Riedmann, Bishop, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

RIEDMANN, JUDGE

INTRODUCTION

Phillip M. Galvan, Jr., also known as Phillip Galvin, appeals his conviction in the district court for Sarpy County of first degree sexual assault. On appeal, he challenges the sufficiency of the evidence to support the conviction, the district court's decision to allow the jury to rehear a recording during deliberations, and his sentence. We affirm.

BACKGROUND

In June 2018, Galvan was charged with the first degree sexual assault of J.S. A jury trial was held in June 2019, and the evidence established that on the evening of May 10, 2018, J.S. and a friend went to a bar in Omaha, Nebraska. While there, they began to play pool with Galvan and a friend of his; J.S. and Galvan did not previously know each other. J.S. left to take her friend home and then returned to the bar where she socialized with Galvan and his friend. Eventually, Galvan's friend left the bar, and according to J.S., Galvan asked her for a ride home. J.S. testified that she declined to give him a ride to his house because it was too far, but that she told him he could sleep on her couch and she would take him home in the morning.

After Galvan and J.S. arrived at J.S.' apartment, she got herself and Galvan each a beer, and they sat in her living room. J.S. drank some of her beer and then retrieved a pillow and blanket for Galvan, put it on the couch, and told him she was going to bed and would take him home in the morning. She then went into her bedroom, shut the door behind her, and went to sleep.

According to J.S., she later woke up to Galvan on top of her, pulling off her shorts and panties. She started yelling, and Galvan put his hand over her mouth. He then penetrated her with his penis. J.S. described that Galvan initially had one hand over her mouth and the other hand holding her wrists above her head. He then took his hand off of her mouth and put his penis in her mouth. She said she bit his penis, and he punched her in the back of the head. J.S. testified that she was screaming and kicked Galvan off of her, and then he left her apartment.

After Galvan left, J.S. called a man who is a father figure to her, who advised her to call the police. She then called 911. A recording of J.S.' 911 phone call was received into evidence at trial without objection from Galvan. The recording was played for the jury. The call lasted approximately 12 minutes, and it is clear that J.S. had difficulty speaking and answering questions, especially initially, because she was so upset. J.S. informed the 911 operator that she had just been "raped," and the operator asked her numerous questions, such as how the perpetrator got into her apartment, what he looked like, and whether he left on foot or in a vehicle. The operator remained on the line with J.S. until law enforcement arrived at her apartment.

The officer who responded to the 911 call described her interaction with J.S. at the apartment. She said that J.S. was visibly shaken up, crying, and hysterical, and her hands were shaking. J.S. told her what occurred, including that she had met Galvan at a bar and eventually offered to let him sleep on her couch. J.S. explained that she got herself and Galvan a beer before she went to her bedroom to go to sleep. The officer testified that J.S. told her that she was woken up by Galvan on top of her, holding her hands above her head, and having sex with her. J.S. told the officer that she tried to scream, so Galvan put his hand over her mouth, and that he then forced her to give him oral sex before she kicked him off of her. The officer stated that she asked J.S. whether she ever consented to vaginal or oral penetration with Galvan, and J.S. said she did not. Law enforcement searched J.S.' apartment and located a used condom in a bathroom trash can. The condom contained DNA from both Galvan and J.S.

After J.S. talked to law enforcement at her apartment, she went to a hospital for a sexual assault examination. The nurse who conducted the examination testified that J.S. told her that she had been "raped." The nurse described that J.S. was visibly very upset, very anxious, withdrawn toward herself, and crying. As J.S. described the assault to the nurse, she became significantly more distressed and upset and had "difficulties talking about everything." The nurse testified that J.S. told her that she had been awoken by Galvan holding her hands above her head and vaginally penetrating her. J.S. said that she told Galvan to get out of her room and was able to push him off, but he then forced her to perform oral sex on him before she was able to get him to leave.

Through cross-examination of the various witnesses, the defense pointed out numerous inconsistencies in J.S.' statements, including that she returned to the bar after taking her friend home so she could finish beer that remained in a pitcher she had bought when the video surveillance from the bar showed that the pitcher was empty when she left. The defense also highlighted the unlikelihood that Galvin entered J.S.' bedroom after she had gone to sleep and was able to locate a condom on a cooler behind her door in the dark when he had never been in the room before.

After the State rested its case at trial, Galvan moved to dismiss the charge against him, arguing that the State failed to meet its burden of proof. The district court denied the motion.

During deliberations, the jury asked the district court whether it could have equipment to listen to and/or watch the recorded exhibits. Galvan objected to allowing the jury to rehear the 911 call. He argued that allowing the jury to do so may be unfairly prejudicial and inflammatory in nature. The court overruled the objection, finding that the recording of the 911 call was not testimonial in nature and that therefore it would not be improper to allow the jury to review it. The court offered the following response to the jury: "You are provided with a computer to review the exhibits. The bailiff will remain with you -- with the jury while they view the exhibits and remove the computer when they are through."

The jury ultimately found Galvan guilty. He filed a motion for new trial, which was denied. Galvan was subsequently sentenced to 10 to 15 years' imprisonment. He appeals.

ASSIGNMENTS OF ERROR

Galvan assigns that (1) there was insufficient evidence to sustain the conviction, (2) the district court erred in denying his motion to dismiss at the close of the State's evidence, (3) the district court erred in allowing the jury to listen to the 911 call recording during deliberations, and (4) the district court erred in imposing an excessive sentence.

STANDARD OF REVIEW

In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court 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. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).

A trial court's decision to allow a jury during deliberations to rehear or review evidence, whether such evidence is testimonial or nontestimonial, is reviewed by an appellate court for an abuse of discretion. State v. Vandever, 287 Neb. 807, 844 N.W.2d 783 (2014).

When a trial court's sentence is within the statutory guidelines, the sentence will be disturbed by an appellate court only when an abuse of discretion is shown. State v. Spang, 302 Neb. 285, 923 N.W.2d 59...

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