State v. Harris

• Decision Date: 14 December 1990
• Docket Number: No. 89-1259,89-1259
• Citation: 463 N.W.2d 829,236 Neb. 783
• Parties: STATE of Nebraska, Appellee, v. Lawrence E. HARRIS, Appellant.
• Court: Nebraska Supreme Court

Page 829

463 N.W.2d 829

236 Neb. 783

STATE of Nebraska, Appellee, v. Lawrence E. HARRIS, Appellant.

No. 89-1259.

Supreme Court of Nebraska.

Dec. 14, 1990.

Syllabus by the Court

1. Due Process. A claim that one is being deprived of a liberty interest without due process of law is typically examined in three stages. The question in the first stage is whether there is a protected liberty interest at stake. If so, the analysis proceeds to the second stage, in which it is determined what procedural protections are required. Upon the resolution of that issue, the analysis moves on to the third and final stage, in which the facts of the case are examined to ascertain whether there was a denial of that process which was due.

2. Constitutional Law: Mentally Disordered Sex Offender. A liberty interest is at stake in the determination of whether a defendant is a mentally disordered sex offender under Nebraska's mentally disordered sex offender statutes.

3. Mentally Disordered Sex Offender: Sentences. Under Nebraska's mentally disordered sex offender statutes, a defendant must first be sentenced for the sexual offense of which he was convicted. It is only after a mentally disordered sex offender defendant has been sentenced that the court may commit him to a regional center for treatment.

4. Constitutional Law: Mentally Disordered Sex Offender: Sentences. The liberty interest a mentally disordered sex offender has, after being sentenced for the sexual crime he or she committed, is the same as that of a prisoner who is transferred from a prison to a mental hospital.

5. Prisoners: Mental Health: Due Process. The transfer of a prisoner from a prison to a mental hospital must be accompanied by appropriate procedural protections.

6. Mentally Disordered Sex Offender: Proof. For a court to commit a criminal defendant to a regional center under Nebraska's mentally disordered sex offender act, the State must prove by clear and convincing evidence (1) that the defendant is a mentally disordered sex offender, (2) that the defendant is treatable, and (3) that treatment is available in this state.

7. Mentally Disordered Sex Offender. Whether a defendant is a mentally disordered sex offender is a question of fact to be determined by the trial court. There is no statutory requirement that the opinion of the examiners be unanimous.

8. Sentences: Appeal and Error. An order imposing a sentence within statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.

Dean S. Forney, Box Butte County Public Defender, for appellant.

Robert M. Spire, Atty. Gen., and Steven J. Moeller, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

In this appeal, Lawrence E. Harris, age 54, in substance claims that the trial court erred (1) in basing its finding that he is a mentally disordered sex offender upon "clear and convincing" evidence, rather than upon evidence beyond a reasonable doubt; (2) in finding that he in fact is a mentally disordered sex offender; and (3) in imposing an excessive sentence.

We affirm the application by the district court for Box Butte County of a "clear and convincing evidence" standard in finding that Harris is a mentally disordered sex offender (MDSO) and the 20-month to 5-year sentence imposed upon him for sexually assaulting a child. The defendant was credited with 55 days on said sentence for time served.

Harris was initially charged with two crimes: (1) first degree sexual assault on his 7-year-old stepgranddaughter, a violation of Neb.Rev.Stat. § 28-319 (Reissue 1989), a Class II felony carrying a penalty of not less than 1 nor more than 50 years' imprisonment, Neb.Rev.Stat. § 28-105 (Reissue 1985), and (2) sexual assault of a child, in violation of Neb.Rev.Stat. § 28-320.01 (Reissue 1989), a Class IV felony carrying a penalty of up to 5 years' imprisonment, up to a $10,000 fine, or both, § 28-105.

First degree sexual assault involving a child requires "sexual penetration," which means "sexual intercourse in its ordinary meaning ... or any intrusion, however slight, of any part of the ... victim's body or any object manipulated by the actor into the genital ... [opening] of the victim's body...." Neb.Rev.Stat. § 28-318 (Reissue 1989). A person commits sexual assault of a child if he or she subjects another person 14 years of age or younger to sexual contact and the actor is at least 19 years of age or older. § 28-320.01. "Sexual contact" means the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts when the touching may reasonably be construed as being for the purpose of sexual arousal or gratification of either party. § 28-318.

Pursuant to a plea agreement, Harris entered a plea of guilty to the charge of sexual assault of a child, and the charge of first degree sexual assault was dismissed. The bill of exceptions filed with this court contains only the sentencing hearing and not the hearing in which the defendant entered his guilty plea. The presentence investigation reveals that Harris' wife, who had been doing housework, went into a bedroom of the couple's home about 9 p.m. on May 31, 1989. There she found her husband and his 7-year-old stepgranddaughter sitting on a bed. The child was dressed in her nightgown and underpants. Mrs. Harris observed that her husband was kissing his stepgranddaughter on the neck in a "passionate manner."

While her husband fell asleep, Mrs. Harris questioned the child, who reported that Harris had touched her genitals with his hand, in addition to kissing her on the neck. The child also said this had occurred at other times in the past. When asked whether Harris had ever put anything inside her, the child said he had used his finger. The child told a police officer that Harris had touched her private parts 19 to 20 times previously, and would on occasion put his tongue in her mouth while kissing her.

When Harris was interviewed by an Alliance police officer, he admitted rubbing the victim's crotch area with his fingers, but denied reaching inside the victim's panties to fondle her genital area on the night in question. Harris did admit that on an earlier occasion he had reached inside the child's shorts and rubbed her genital area. Throughout the interview, the defendant maintained that he was in a drunken state and really did not remember what happened the night of May 31. Harris accused the 7-year-old of being "sexually promiscuous."

Upon acceptance of Harris' guilty plea, the trial court, as required by Neb.Rev.Stat. § 29-2912 (Reissue 1989) and State v. Klappal, 218 Neb. 374, 355 N.W.2d 221 (1984), ordered an evaluation to determine whether the defendant was an MDSO. A "mentally disordered sex offender" means any person who has a mental disorder and who, because of the mental disorder, has been determined to be disposed to repeated commission of sexual offenses which are likely to cause substantial injury to the health of others. Neb.Rev.Stat. § 29-2911(2) (Reissue 1989).

The two psychiatrists who examined Harris came to different conclusions. Their reports were received in evidence without objection at the MDSO hearing. Dr. John Baldwin diagnosed the defendant as being a chronic alcoholic, as opposed to being an MDSO. Harris told both doctors that he normally drank 8 beers per day, but on the night of May 31 he had drunk 22 beers. Dr. Baldwin thought that the offense in question did not arise out of any kind of mental disorder other than "characterologic poor self-control." He predicted that if Harris was sufficiently punished, Harris would not repeat a sexual offense. "He has an inclination to act out sexually when he gets drunk, and I think if he were sufficiently punished for this, this would not be likely to occur," Dr. Baldwin wrote. Conversely, Dr. Y. Scott Moore diagnosed the defendant to be an MDSO and his mental disorder to be pedophilia. Dr. Moore found that Harris had committed a sexual offense in a repeated fashion "which is likely to cause harm to the victim." The psychiatrist found that treatment was available at the sexual offender's program at the Lincoln Regional Center and predicted that treatment would be ineffective unless it lasted 3 1/2 to 4 years.

As was its prerogative as a fact finder, the trial court obviously rejected Dr. Baldwin's diagnosis and accepted Dr. Moore's diagnosis. See State v. Todd, 223 Neb. 462, 390 N.W.2d 528 (1986). The court found that the evidence was clear and convincing that Harris was an MDSO and that he could benefit from treatment. A maximum confinement sentence was imposed upon Harris.

In defendant's first assignment of error, he claims only that the proper standard of proof in determining whether a defendant is an MDSO is proof beyond a reasonable doubt and that any lesser standard of proof falls short of providing the level of due process required by the Nebraska and U.S. Constitutions.

A claim that one is being deprived of a liberty interest without due process of law is typically examined in three stages. The question in the first stage is whether there is a protected liberty interest at stake. If so, the analysis proceeds to the second stage, in which it is determined what procedural protections are required. Upon the resolution of that issue, the analysis moves on to the third and final stage, in which the facts of the case are examined to ascertain whether there was a denial of that process which was due. State v. Cook, 236 Neb. 636, 463 N.W.2d 573 (1990). See, e.g., Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990).

Without question, a liberty interest is at stake in the determination of whether a defendant is an MDSO under Nebraska's MDSO statutes. If a person is found to be a treatable MDSO and there is treatment available, he or sh...