State v. Hirsch
| Decision Date | 28 January 1994 |
| Docket Number | No. S-92-611,S-92-611 |
| Citation | 511 N.W.2d 69,245 Neb. 31 |
| Parties | STATE of Nebraska, Appellee, v. Daniel Orlin HIRSCH, Sr., Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Legislature: Limitations of Actions. The Legislature has the authority to change statutes prescribing the period of limitations to actions.
2. Criminal Law: Limitations of Actions. Once an offense becomes barred, a later statute extending the period of limitations cannot revive the offense.
3. Constitutional Law: Criminal Law: Statutes. An ex post facto law is one which alters the situation to the disadvantage of an accused.
4. Constitutional Law: Criminal Law: Limitations of Actions. Application of a statute of limitations to revive a barred prosecution would disadvantage the accused who has acquired a vested right to be free from suit and, therefore, violates the constitutional prohibition against ex post facto legislation.
5. Constitutional Law: Criminal Law: Limitations of Actions. Extending a statute of limitations which has not yet run does not violate the ex post facto clauses.
6. Time. The period of time within which an act is to be done in any action or proceeding is to be computed by excluding the day of the act, event, or default after which the designated time begins to run.
7. Time: Words and Phrases. The word "year" means calendar year.
8. Limitations of Actions. An amendment to a statute of limitations enlarging the unexpired period of time within which an action can be brought is not retroactive legislation, but, rather, is prospective in its operation.
9. Statutes. Retrospective laws are those laws which take away or impair a right acquired under existing laws or create a new obligation, impose a new duty, or attach a new disability with respect to transactions or considerations already past.
10. Limitations of Actions. A statute of limitations does not impair existing substantive rights but merely affects the procedure by which such rights may be enforced.
11. Limitations of Actions. Statutes of limitations generally apply to all proceedings commenced after the statute becomes effective, whether rights accrued before or after such date.
12. Criminal Law: Limitations of Actions. Statutes of limitations are to be liberally construed in favor of the defendant in a criminal case.
13. Limitations of Actions. One has no vested right in the running of a statute of limitations unless it has completely run and barred the action before the new limitation becomes effective.
14. Criminal Law: Directed Verdict. In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.
15. Directed Verdict. A directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, where an issue should be decided as a matter of law.
16. Directed Verdict. If there is any evidence which will sustain a finding for the party against whom a motion for directed verdict is made, the case may not be decided as a matter of law.
17. Convictions: Appeal and Error. In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.
18. Directed Verdict: Waiver: Convictions: Appeal and Error. A defendant who moves for a directed verdict at the close of the State's case and proceeds with trial waives any error in the ruling on that motion, but may challenge the sufficiency of the evidence for the defendant's conviction.
19. Criminal Law: Directed Verdict: Appeal and Error. When a criminal defendant makes a motion at the close of the State's case in chief and again at the conclusion of all the evidence, it is proper to assign as error that the defendant's motion for directed verdict made at the conclusion of all the evidence should have been sustained.
20. Sexual Assault: Proof: Words and Phrases. The slightest intrusion into the genital opening is sufficient to constitute penetration in a prosecution for first degree sexual assault, and such element may be proved by either direct or circumstantial evidence.
21. Sexual Assault: Words and Phrases. In order for sexual penetration to have occurred, it is not necessary that the vagina be entered or that the hymen be ruptured; the entry of the vulva or labia is sufficient.
22. Motions for New Trial: Appeal and Error. A motion for new trial on the basis of newly discovered evidence is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed on appeal.
23. Evidence. In order to qualify as newly discovered, the evidence may not be something which could have been uncovered and produced at trial with reasonable diligence.
24. Motions for New Trial: Evidence: Proof. One moving for a new trial on the ground of newly discovered evidence must show that the evidence was uncovered since the trial, that the evidence was not equally available before the trial, and that the evidence was not simply discovered by the exercise of belated diligence.
25. Evidence. Evidence is not newly discovered if diligence before the trial would have produced notice or knowledge of the alleged recently uncovered evidence.
26. New Trial: Evidence. Forgetfulness is inconsistent with the diligence required in presenting the evidence during the trial, and such lack of due diligence does not warrant a new trial on the basis of newly discovered evidence.
Glenn A. Shapiro, of Gallup, Schaefer, Riha, Dornan, Jabenis & Shapiro, Omaha, for appellant.
Don Stenberg, Atty. Gen., and Kenneth W. Payne, Lincoln, for appellee.
Following the overruling of the demurrer filed by the defendant-appellant, Daniel Orlin Hirsch, Sr., on the ground that the charge was time barred, the district court, pursuant to verdict, adjudged Hirsch guilty of committing first degree sexual assault on his daughter, in violation of Neb.Rev.Stat. § 28-319 (Reissue 1989). Hirsch appealed to the Nebraska Court of Appeals and assigned as errors the district court's failure to (1) sustain his demurrer, (2) grant his motion for a directed verdict, and (3) order a new trial because of the discovery of new evidence. The Court of Appeals determined that the district court had indeed erred in failing to sustain Hirsch's demurrer, vacated the judgment of the district court, and remanded the cause with the direction that it be dismissed. 4 Neb.C.A. 486, 510 N.W.2d 534. The plaintiff-appellee State then successfully petitioned this court for further review. We reverse the judgment of the Court of Appeals and remand the cause with the direction that the judgment of the district court be reinstated.
Hirsch, who was born on February 27, 1948, married in 1973. The marriage produced two children, a son and a daughter who was born August 27, 1977. At his wife's request, Hirsch left the family home prior to the time of the alleged assaults and was living with a friend. The wife petitioned for dissolution of the marriage, and the court granted Hirsch overnight visitations, which took place at Hirsch's residence. Although Hirsch testified that he, his son, and his daughter all slept in separate rooms, the daughter testified that the son slept in Hirsch's room and that she and Hirsch slept in the guest room. The son testified that sometimes Hirsch and the daughter would sleep in the same room, one of them on the air mattress and the other in the bed.
The daughter testified that during one of her overnight visits, just before she entered Lutheran General Hospital in July 1986, she was lying on the air mattress, and Hirsch asked her if she wanted to come sleep with him. When she refused, Hirsch told her "to take off all [her] clothes and get into bed with him." She testified that she got into bed with Hirsch because he had told her that if she did not, "he'd spank [her], and if [she] ever told anybody what he had [her] do that he'd kill [her]," her mother, or her brother. She stated that Hirsch touched her vagina with his finger and it started to hurt a little bit.
Dr. Roger Parolini admitted the daughter to the hospital for suicidal tendencies on July 28, 1986, and concluded she was having an adjustment disorder with a depressed mood. In the history prepared for the daughter's hospitalization, Parolini referred to a previous episode of suicidal ideation the daughter had suffered approximately a year earlier.
According to the daughter, a second incident of abuse occurred just before she was hospitalized a second time, on November 26, 1986. Again, Hirsch asked her if she wanted to sleep with him and she refused. Hirsch then told her to sleep with him and take off all her clothes. The daughter testified that the same thing that had happened the first time happened again. Hirsch started touching her with his finger and then got on top of her with his legs around her. She started to feel a "really bad pain" that was "up inside [her]," in her vagina. The daughter described an "egg yolk feeling" that she felt between her legs. Hirsch again threatened that if she ever told anybody, he would kill her or her mother or brother.
The daughter testified that around Christmas, Hirsch again asked her if she wanted to sleep with him. When she refused, he told her to come sleep with him and take off all her clothes, threatening to spank her if ...
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