State v. Hibler

• Decision Date: 01 March 2019
• Docket Number: No. S-18-005.,S-18-005.
• Citation: 923 N.W.2d 398,302 Neb. 325
• Parties: STATE of Nebraska, Appellee, v. David J. HIBLER, Jr., Appellant.
• Court: Nebraska Supreme Court

302 Neb. 325

923 N.W.2d 398

STATE of Nebraska, Appellee,

v.David J. HIBLER, Jr., Appellant.

No. S-18-005.

Supreme Court of Nebraska.

Filed March 1, 2019.

I. NATURE OF CASE

David J. Hibler, Jr., appeals his convictions and sentences in the district court for Lancaster County, following a jury trial, for first degree sexual assault of a child, incest with a person under 18 years of age, and third degree sexual assault of a child. On appeal, Hibler argues that first degree sexual assault of a child under Neb. Rev. Stat. § 28-319.01(1)(a) and (2) (Reissue 2016) is unconstitutional, because the statute subjects the defendant to a mandatory minimum sentence based solely on the ages of the victim and perpetrator. We conclude that the age classifications defining sexual assault of a child in § 28-319.01(1)(a) and associated mandatory sentence in § 28-319.01(2) are not unconstitutional. We also determine that the district court did not abuse its discretion when it made various evidentiary rulings and that the evidence was sufficient to support Hibler’s convictions. We reject several of Hibler’s claims of ineffectiveness of trial counsel but do not reach the merits of various other ineffectiveness claims. For the reasons explained below, we affirm.

II. STATEMENT OF FACTS

The State charged Hibler by information with one count of first degree sexual assault of a child, § 28-319.01(2) ; one count of incest with a person under 18 years of age, Neb. Rev. Stat. § 28-703 (Reissue 2016) ; and one count of third degree sexual assault of a child, Neb. Rev. Stat. § 28-320.01(3) (Reissue 2016). Before trial, Hibler filed a motion to quash based on his claim that the provisions of § 28-319.01(2)"violate [Hibler’s] constitutional rights under the Fifth, Fourteenth and Eighth Amendment[s] to the United States Constitution and the correlative provisions of the Nebraska Constitution." At a hearing on the motion to quash, Hibler’s counsel noted the motion was being filed pursuant to State v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017), which states that to preserve a constitutional challenge to the mandatory minimum sentence which could be imposed, a motion to quash must be filed. The motion was overruled.

1. TRIAL

(a) Testimony of J.H.

J.H., the victim, was 13 years old when she testified as the State’s first witness. J.H. is the oldest of the three biological children of Hibler and his former wife, A.H. J.H. testified that she was 11 years old during the events alleged in the information. She testified that her parents were still married in 2015, but she thought they were now divorced.

J.H. testified that Hibler began giving her massages when she was 11 years old, following a Soap Box Derby win in 2015. Hibler would massage her when they would run and bike together. Initially, Hibler touched only J.H.’s back and legs when he massaged her.

J.H. stated that one night when she was 11 years old, Hibler began to massage her "butt" during a massage in A.H. and Hibler’s bedroom. J.H. testified that beginning in October 2015 and continuing through January 2016, Hibler touched her inappropriately more than one time, but less than 10 times. J.H. believed the inappropriate touching occurred about four or five times. J.H. testified specifically that one incident occurred at her grandfather’s home, one incident occurred in J.H.’s bedroom, and the other incidents were in the bedroom Hibler shared with A.H., J.H.’s mother.

The evidence showed that one of J.H.’s brothers has cancer and that A.H. would take him out of state once a month for treatment. J.H. stated A.H. and her brother were out of town when Hibler massaged her backside. J.H. was lying on her stomach on Hibler’s bed, and she was not wearing any clothes, but had a towel over her body.

J.H. testified that another incident occurred during the morning in J.H.’s room. J.H. had a pain in her chest and Hibler told her to let him give her a massage. He told her to remove her bra so he could massage her chest. J.H. indicated that she stated no but that Hibler stated it "would make it better," so J.H. removed her bra. Hibler then massaged her breasts for possibly 5 or 10 minutes. J.H. was sitting on her bed, and Hibler was sitting next to her.

J.H. also testified that Hibler touched her genitals multiple times. Sometime in 2015, J.H. and Hibler were spending the night at her grandfather’s home in Omaha, Nebraska; J.H. believed A.H. and her brother were not at the home. J.H. stated that she was lying on her side while Hibler was massaging her from behind and that at some point, he put his hand in her underwear "and started touching [her] vagina." J.H. described that it felt like a "swiping motion" and compared it to "when a girl goes to the bathroom and she takes the toilet paper, she wipes. She doesn’t like stick it up her vagina, doesn’t like just ... pat it. She swipes it and then puts it in the toilet." J.H. testified that she could feel his fingers "moving up and down [her] vagina" and that it lasted a long time. She testified that she did not tell anyone, because she was scared.

J.H. testified that Hibler also touched her genitals with the "swiping motion" at the family home in Lincoln, Nebraska. J.H. thought that it occurred about three times and that it happened when A.H. and her brothers were out of town for her brother’s treatment. J.H. described the swiping episodes as follows: she would be half asleep but still aware of her surroundings, then Hibler would put his hand under her underwear and start touching her vagina in a swiping motion.

J.H. described an incident which occurred with Hibler in his bedroom during which Hibler asked J.H. to wear a pair of A.H.’s purple underwear, which tied on the sides. According to J.H., Hibler was massaging her and then had her put on the underwear that tied and began massaging her legs. At one point, Hibler untied the sides of the underwear and massaged her legs right next to her vagina. Hibler looked at her vagina, though he did not touch her vagina at that time. J.H. testified that when Hibler told her to put the underwear on, he had stated something about them making it "easier."

J.H. also testified about another incident which occurred in Hibler’s bedroom in the early morning. J.H. believed that just she and Hibler were home and that A.H. and her brothers were probably out of state. During this incident, J.H. was asleep when Hibler began to massage her. When Hibler touched her, he performed the swiping motion and also put his hand over her vagina "like as if his hand were a bowl and he were putting it over [her] vagina." J.H. testified that Hibler "touched [her] vagina" and did so "more towards the top of [her] vagina where there is this thing." J.H. stated that during the previous episodes when Hibler was swiping, he would touch the labia, but "this time it was more towards the top of that" area but that she did not know the name of the area. When it was just the swiping motion, J.H. usually could feel just Hibler’s fingers, but "this time [she] felt his whole hand." He "touched the top of [her] vagina" with "maybe two or three fingers," and "[h]is fingers were moving." This continued for between 15 to 30 minutes. J.H. stated that her eyes were closed but that she was not asleep. J.H. stated that this was the last incident and that it occurred around December or January. She knew that the incident did not happen in February.

J.H. testified that, initially, she did not tell anyone about this last incident, because she was scared and did not know what would happen to her and her family. However, after her friends realized something was wrong, she met them at the school playground and told them in February. J.H. asked her friends not to tell anybody, but the mother of one of her friends learned of the alleged assaults and called the school. The principal asked J.H. to come to the office and asked her some questions. J.H. did not tell A.H. prior to when the police became involved, because she stated, "I wasn’t sure if she would believe me or—I actually wanted to wait until we got a new house, because then I thought at the time, I thought it would be easier...." She stated that she "tried to tell [A.H.] There were times, you know, that I would say, let’s go for a ride, and I would want to tell her. Then I would chicken out because it is not something that you can walk up to somebody and say this happened."

(b) Testimony of A.H.

A.H. testified that Hibler was born in November 1980. A.H. married Hibler in 2002 and had three biological children with him. A.H. testified that there were times she went with her son for his treatments out of state between October 2015 and March 2016. The day visits occurred about once a month and often on Fridays. In addition, A.H. recalled that there were two or three other times when she took her son out of state for treatment and that they spent the night out of state. On those occasions, Hibler stayed home with J.H. and their other son.

A.H. testified that J.H. "loved to give pedicures" and that she liked to give massages and receive them. A.H. testified it would not have been unusual for Hibler to massage J.H. after running or stretching. A.H. stated that before the police came to her workplace on March 31, 2016, to tell her that J.H. had been interviewed, J.H. had not told her anything regarding Hibler’s actions.

A.H. testified that she spoke with Hibler in person on several occasions about J.H.’s accusations. They also discussed the trouble in their marriage. According to A.H., Hibler wanted A.H. to convey to J.H. that Hibler believed J.H.’s recollection was a misunderstanding of what had occurred. According to A.H., Hibler initially admitted touching J.H. on just one occasion. A.H. testified that Hibler stated this event occurred when he took J.H. home one night; she was asleep, and he did not want to carry J.H. up the stairs, so he took J.H. to A.H. and Hibler’s bed. Hibler told A.H. that "he took some melatonin and rolled over and...