State v. Greer
| Citation | 312 Neb. 351 |
| Decision Date | 02 September 2022 |
| Docket Number | S-21-601 |
| Parties | State of Nebraska, appellee, v. Christina M. Greer, appellant. |
| Court | Supreme Court of Nebraska |
1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the trial court.
2. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews the record de novo to determine whether a trial court has abdicated its gatekeeping function when admitting expert testimony.
3.___:___:___. When the trial court has not abdicated its gatekeeping function when admitting expert testimony, an appellate court reviews the trial court's decision to admit or exclude the evidence for an abuse of discretion.
4. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.
5. Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
6. Jury Instructions: Appeal and Error. Jury instructions are subject to harmless error review, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party.
7. Jury Instructions: Proof: Appeal and Error. In an appeal based upon a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.
8. Rules of Evidence: Expert Witnesses. Four preliminary questions must be answered in order to determine whether an expert's testimony is admissible: (1) whether the witness qualifies as an expert pursuant to Neb. Rev. Stat. § 27-702 (Reissue 2016); (2) whether the expert's testimony is relevant (3) whether the expert's testimony will assist the trier of fact to understand the evidence or determine a controverted factual issue; and (4) whether the expert's testimony, even though relevant and admissible, should be excluded in light of Neb. Rev. Stat. § 27-403 (Reissue 2016) because its probative value is substantially outweighed by the danger of unfair prejudice or other considerations.
9. Trial: Expert Witnesses. A trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion, and this gatekeeping function entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue.
10. ___: ___ . Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), does not create a special analysis for answering questions about the admissibility of all expert testimony. Not every attack on expert testimony amounts to a Daubert claim. If a witness is not offering opinion testimony, that witness' testimony is not subject to inquiry pursuant to Daubert.
11. Sentences: Appeal and Error. When sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering well-established factors and any applicable legal principles.
12. Judges: Words and Phrases. A judicial abuse of discretion exists only when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience reason, and evidence.
13. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.
14. ___ . The sentencing court is not limited to any mathematically applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing judge's observations of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.
15. ___ . It is within the discretion of the trial court to direct that sentences imposed for separate crimes be served consecutively. The test of whether consecutive sentences may be imposed under two or more counts charging separate offenses, arising out of the same transaction or the same chain of events, is whether the offense charged in one count involves any different elements than an offense charged in another count. The test is whether some additional evidence is required to prove one of the other offenses.
Appeal from the District Court for Sarpy County: George A. Thompson, Judge.
Thomas P. Strigenz, Sarpy County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
The defendant, Christina M. Greer, was charged with 13 counts in four separate cases, all relating to allegations of sexual assault of a child. Greer was convicted of 11 of those counts and sentenced to an aggregate sentence of 64 to 102 years' imprisonment. Greer appeals. We affirm.
Charges Against Greer.
Greer was charged in four separate cases. In the first case, she was originally charged with one count of first degree sexual assault of W.F. (also known as A.F.), a 13-year-old boy who was friends with Greer's 11-year-old daughter. That charge was later amended to one count of first degree sexual assault of a child and two counts of witness tampering.
In the second case, Greer was charged with three counts of first degree sexual assault of a child, J.H., a 13-year-old boy who was friends with Greer's 9-year-old son. In the third case, Greer was charged with six counts of intentional child abuse of A.F. and J.H.; of Greer's daughter; and of A.R., A.J., and C.P., identified as friends of Greer's daughter. In the fourth case, Greer was charged with child enticement of P.M., a 13-year-old boy who attended school with Greer's daughter.
These four cases were consolidated for trial on January 21. 2021.
Pretrial Motions.
Greer was first charged in March 2018, but did not come to trial until March 2, 2021. Since that time, Greer has had three attorneys: appointed counsel; retained counsel; and at trial, the Sarpy County public defender, who was appointed on April 2, 2020, and represents Greer in this appeal.
As relevant to this appeal, the primary reason for the delay in Greer's trial was various motions filed by the State under Neb. Rev. Stat. § 27-404 (Reissue 2016) (other bad acts) and Neb. Rev. Stat. § 27-414 (Reissue 2016) (prior sexual conduct). Generally, the State sought to introduce evidence that Greer (1) had engaged in uncharged sex acts with other children, (2) had engaged in uncharged sex acts with already identified victims, and (3) was "grooming" the children through the supplying of alcohol and marijuana edibles. In support of its contention that evidence relating to Greer's grooming of children who came to her home, the State offered the testimony of Colleen Brazil, the forensic interview program manager at a child advocacy center.
The first such motion regarding §§ 27-404 and 27-414 was filed on December 26, 2018. At a hearing on February 7, 2019, Brazil testified about the concept of "grooming" and the behaviors it encompasses. Greer's daughter and J.H. testified about Greer's conduct in the cases wherein each was a named victim. The State's motion was granted on March 1.
On August 6, 2019, Greer sought a motion in limine to prevent the State from mentioning or using the term "grooming" without the court's permission, as it was a "term of art that requires expert testimony." On August 7, the district court granted the State's motion to continue and noted that it would take up the motions in limine at a later hearing. The district court held a hearing on Greer's motions in limine on March 3, 2020, and denied the motions, noting that it had addressed the issue in various § 27-404 hearings.
Brazil's Testimony.
Trial began on March 2, 2021. On March 3, Greer filed a motion seeking an order to strike Brazil as an expert witness, as well as to strike her testimony regarding grooming, because such theories violated standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., [1] and Schafersman v. Agland Coop.[2]
The State called Brazil to testify on March 4, 2021. Greer objected when the State asked Brazil if she was familiar with the term "grooming." The district court initially indicated that "grooming" was not an appropriate topic for a Daubert hearing and that Brazil was an expert in the field of child advocacy. But the district court ultimately agreed to hold a Daubert hearing.
At that hearing, Brazil once again testified on the concept of grooming. Brazil also testified that she knew very little about the facts of Greer's case and that she would not offer an opinion as to whether Greer's alleged victims were, in fact, groomed by Greer. The State also offered three court opinions and an article about grooming.
In ruling for the State, the court indicated that it did not think Daubert should apply, but that the Nebraska Court of Appeals' opinion in State v Edwards[3] held that Daubert did apply. The district court explicitly noted it believed that the...
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