State v. Gardner, A-91-619
| Decision Date | 26 January 1993 |
| Docket Number | No. A-91-619,A-91-619 |
| Citation | 1 Neb.App. 450,498 N.W.2d 605 |
| Parties | STATE of Nebraska, Appellee, v. Dennis J. GARDNER, Appellant. |
| Court | Nebraska Court of Appeals |
Thomas M. Kenney, Douglas County Public Defender, and Cheryl M. Kessell, Omaha, for appellant.
Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.
This appeal arises from the conviction of appellant, Dennis J. Gardner, for first degree sexual assault on a child. While Gardner admitted there was evidence that the victim had been molested, he sought to persuade the jury that the victim's father, rather than Gardner, was the perpetrator. In support of this contention, Gardner wanted to introduce testimony concerning a prior bad act by the victim's father. Gardner also wanted to introduce testimony from two of his nieces that on the occasions on which they had stayed with Gardner, he never molested them.
The State filed a motion in limine to exclude the testimony concerning the prior bad act and the testimony of the two nieces. The motion was sustained. Gardner assigns as error the trial court's refusal to admit either type of testimony. Gardner also argues that his sentence is excessive. We affirm.
The victim, Monica W., born December 24, 1981, is the daughter of Sherri W. and Gene S. Monica lives with her mother and two younger brothers. While she was in the second grade, during the 1989-90 school year, Monica occasionally spent the night with her father, who does not live with Monica and her mother. Sometimes Monica stayed with her maternal grandmother. Almost every weekend during the 1989-90 school year, Monica stayed overnight with Gardner and his girl friend, Chris "Tracy" Wilsey, who were friends of Monica's mother.
In June or July 1990, Monica told her mother that Gardner "was doing things that she wasn't sure was [sic] right." From then on, Monica's mother no longer allowed Monica to stay overnight with Gardner and his girl friend, but she did not make a report to the police.
During a school-sponsored workshop on prevention of sexual abuse held in September 1990, Monica became upset after a video presentation that dealt with improper touching between adults and children. Monica told the instructor of the workshop that she had been molested by Gardner. The police commenced an investigation. Monica was placed in foster care after she told police that her mother had ignored several reports by Monica that she had been sexually abused. Gardner was arrested October 13, 1990.
Upon physical examination of Monica, Dr. Mark D. Horton of the pediatrics department of the Creighton University Medical Center found abnormalities for a girl Monica's age in her hymen. According to Dr. Horton, the opening of the hymen into the vagina was unusually large, the hymen itself was worn down to an unusually small amount of tissue, and there was scar tissue in the posterior part of the hymen. Dr. Horton concluded that the best explanation for the abnormal condition of the hymen was repeated penetration of the hymenal orifice by a blunt object, very likely an adult finger, as Monica had described to Dr. Horton during the examination.
In chambers before trial, the State submitted a motion in limine asking the court to prevent Gardner from introducing testimony of Glen Gladden concerning an incident involving Monica's father, who is Gladden's cousin. Monica's father was not a witness in the case. Gladden would have testified that 10 or 12 years before the trial in this case he was present when Monica's father, then 15 or 16 years of age, french kissed Gladden's 3-year-old sister. Gardner admitted there was evidence that Monica had been molested; he wanted to introduce Gladden's testimony to convince the jury that Monica's father was the perpetrator.
The State's motion also sought to block testimony by Nina and Kesha Montoval, Gardner's 14- and 12-year-old nieces, who would have testified that Gardner had never molested them on the occasions on which they stayed overnight with him. The trial court granted the State's motion in full, excluding the proposed testimony of Gladden and the two nieces.
At trial, Monica testified that, on more than one occasion, Gardner had french kissed her; touched her chest and the area between her legs; put his finger in her "private"; and put his "private" into her "private," which resulted at least once in Monica getting "slime" on her "private" from Gardner's penis.
Gardner denied all allegations of inappropriate sexual contact between himself and Monica. Gardner insisted that there had never been any type of physical contact, not even playful or casual, between himself and Monica.
Gardner was convicted of first degree sexual assault on a child and sentenced to a prison term of 5 to 10 years.
Gardner assigns as error the trial court's exclusion of the testimony of Gladden and the exclusion of the testimony of Gardner's nieces. Gardner also argues that the sentence imposed by the trial court was excessive.
Admissibility of evidence of other wrongs or acts is a matter within the discretion of the trial court, and the trial court's decision will be upheld absent abuse of discretion. State v. Christian, 237 Neb. 294, 465 N.W.2d 756 (1991).
Because exercise of judicial discretion is implicit in Neb.Rev.Stat. § 27-401 (Reissue 1989), relevancy of evidence is a matter within the discretion of the trial court, and the trial court's decision will be upheld absent abuse of discretion. State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991).
A sentence imposed by the trial court that is within the statutory limits will not be disturbed on appeal absent abuse of discretion. State v. Miller, 240 Neb. 297, 481 N.W.2d 580 (1992).
"Judicial abuse of discretion" means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. State v. Thomas, 238 Neb. 4, 468 N.W.2d 607 (1991); State v. Armstrong, 1 Neb.C.A. 101, 485 N.W.2d 341 (1992).
First, we consider the State's argument that Gardner failed to preserve error based on the granting of the State's motion in limine because he did not challenge the ruling at trial.
In order to preserve error, the party opposing a motion in limine which was granted must make an offer of proof outside the presence of the jury. McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990). When error is predicated on exclusion of evidence, the substance of the evidence must have been made known to the judge by offer outside the hearing of the jury. Neb.Rev.Stat. § 27-103 (Reissue 1989).
On the morning of the trial, but before the trial began, the trial judge heard argument in chambers regarding the State's motion in limine to exclude the testimony of Gladden and the two nieces. In chambers, Gardner opposed the State's motion in limine by offering the substance of the evidence at issue and arguing for its relevancy. The judge sustained the motion with regard to the testimony of the two nieces and reserved ruling on Gladden's testimony "until we start the evidence." Later in the day, during the State's case, the judge informed Gardner that "[b]oth paragraphs" of the State's motion in limine would be sustained, which meant that Gladden, as well as the nieces, would be barred from testifying.
Although Gardner informed the judge in detail of the substance of the proposed evidence, and did so outside the hearing of the jury, the State argues that Gardner had to re-offer in the afternoon, during trial, the same argument opposing the motion that he had offered in chambers that morning. The question, then, is whether Gardner preserved error even though he did not make a formal offer of proof during trial.
While there is no Nebraska case law directly addressing this variation on § 27-103, the U.S. Court of Appeals for the Fifth Circuit has addressed the same question regarding Fed.R.Evid. 103, which is identical to § 27-103.
In McQuaig v. McCoy, 806 F.2d 1298 (5th Cir.1987), the court found that the requirements of Fed.R.Evid. 103 were satisfied by a party who, while arguing unsuccessfully in a pretrial conference for admission of evidence, articulated the purposes for which the evidence was to be offered. Though the party did not contest the pretrial ruling in the course of the trial, the court held that "where the party has gone into such detail ... as to the substance of the evidence and why it should be admitted ... the issue has been properly preserved for appeal." McQuaig, 806 F.2d at 1301-02.
In Garner v. Santoro, 865 F.2d 629 (5th Cir.1989), the court held that to preserve error a party need not make a specific offer of evidence at trial when the evidence has already been ruled inadmissible during pretrial argument. " '[T]he court's ruling relates forward to all possible offers of such evidence and renders them needless.' " Id. at 636 ().
In the case at bar, during the pretrial argument over the State's motion in limine, the trial judge was fully informed of the substance of the proposed evidence and of Gardner's justification for admissibility. The judge indicated that he understood, but disagreed with, Gardner's arguments for the admissibility of the evidence at issue. There was no purpose or need for Gardner to raise the issue again at trial. The record already contained the evidentiary colloquy on which Gardner would base his assignment of error concerning exclusion of the testimony of Gladden and the two nieces.
The State cites Frerichs v. Nebraska Harvestore Sys., 226 Neb. 220, 410 N.W.2d 487 (1987), for the proposition that this court should not even consider Gardner's assignments of...
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