State v. James
| Citation | 655 N.W.2d 891,265 Neb. 243 |
| Decision Date | 31 January 2003 |
| Docket Number | No. S-02-420.,S-02-420. |
| Parties | STATE of Nebraska, Appellee, v. Daniel G. JAMES, Appellant. |
| Court | Supreme Court of Nebraska |
Patrick J. Boylan, of Hascall, Jungers & Garvey, Bellevue, for appellant.
Don Stenberg, Attorney General, and Martin W. Swanson, Lincoln, for appellee.
Daniel G. James appeals from his conviction for attempted first degree sexual assault on a child.
A trial court's findings in a criminal case have the effect of a jury verdict, and a conviction in a bench trial will be sustained if the properly admitted trial evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Abbink, 260 Neb. 211, 616 N.W.2d 8 (2000).
James waived his right to a jury trial, and following a bench trial, he was found guilty of attempted first degree sexual assault on a child, a Class III felony.
The victim testified that while she was talking with James on the telephone on July 16, 2001, he said he was going to come to her house. He arrived around midnight or 12:30 a.m., and they went outside to talk.
The victim stated that at the time of the first incident, she was sitting on a cement step located near the side of her house and that she was wearing boxer shorts and a shirt, with underwear and a bra underneath. As they were talking, James asked the victim if she would have sex with him, and she refused. The victim testified that James then tried to penetrate her and that she continued to say "no." The victim said James attempted to penetrate her for approximately 5 minutes. When he was unsuccessful, James became angry and left. After he left, the victim went inside and went to bed without telling anyone about the incident.
The victim testified that on July 23, 2001, James called and asked if he could come to her house, and she told him it was too late. Nevertheless, James appeared at the victim's home with one of her friends. About 10 minutes later, James took the friend home and returned around midnight or 12:30 a.m. James and the victim then went outside to the same location they had a week earlier. The victim said James again asked her to have sex. She said that when she refused, James tried to penetrate her. She said that he was partially successful, but she did not respond, so James became angry and left. The victim said she went inside and went to bed, again without telling anyone.
On August 2, 2001, James came to the victim's house around 10 or 10:30 p.m., and they went to her sister's bedroom after the victim introduced James to her mother. The victim and James sat on the bed and watched television. After about an hour, James asked the victim to have sex with him. The victim said that James tried to penetrate her and again was only partially successful. When she did not respond, James became angry and left.
On August 4, 2001, the victim's pastor learned of the incidents and called the police, who interviewed the victim.
At trial, the victim testified that she was born on February 23, 1986; that she was a freshman in high school; that she met James through her church during the summer of 2001; and that James told her he was 20 years old. The victim admitted she originally told the police that the first two incidents occurred on the lawn rather than on the cement step outside her home. She also admitted that she had previously accused someone else of sexual assault.
Det. Ivan Crespo of the Bellevue Police Department testified that he contacted James on August 22, 2001, in the course of investigating an alleged sexual assault. Crespo said James presented a Nebraska driver's license which indicated his date of birth as October 19, 1980.
After the State rested, James moved for a directed verdict, which motion was overruled. We note that the proper motion would have been a motion to dismiss, and we treat the motion accordingly. The trial court subsequently found James guilty of attempted first degree sexual assault on a child, which it determined was a lesser-included offense of the charge set forth in the information.
James moved for a new trial, alleging that the State had failed to prove his age, which is an element of the offense of first degree sexual assault on a child. In overruling the motion, the trial court concluded there was sufficient evidence to demonstrate that James was over the age of 19 at the time of the alleged offense, as required by § 28-319(1)(c). The victim testified that James had told her he was 20, and Crespo testified that James' driver's license indicated his date of birth was October 19, 1980.
The trial court also concluded that attempted first degree sexual assault on a child is a lesser-included offense of first degree sexual assault on a child and that the lesser charge was properly submitted for the court's consideration even in the absence of a request by James. The court noted that certain testimony and circumstances precluded a finding beyond a reasonable doubt that penetration had occurred. However, the court found that the evidence was more than sufficient to find beyond a reasonable doubt that James intended to have sex with the victim and made at least one overt act, if not more, toward that end.
James was sentenced to 2 years of intensive supervised probation, and he timely appealed.
James makes the following assignments of error: (1) The trial court erred in finding that attempted first degree sexual assault on a child is a lesser-included offense of first degree sexual assault on a child and (2) the court erred in overruling his motion for new trial.
James was charged by information with first degree sexual assault on a child, in violation of § 28-319(1), which prohibits "sexual penetration ... (c) when the actor is nineteen years of age or older and the victim is less than sixteen years of age." He was convicted of attempted first degree sexual assault on a child. Neb. Rev.Stat. § 28-201(1) (Cum.Supp.2002) provides that a person is guilty of an attempt to commit a crime if her or she:
James asserts that the trial court erred in finding that attempted first degree sexual assault on a child is a lesser-included offense of first degree sexual assault on a child. He claims that attempted first degree sexual assault on a child is not a crime in Nebraska. James relies upon State v. George, 264 Neb. 26, 645 N.W.2d 777 (2002), a case in which this court denied postconviction relief. On direct appeal, the Nebraska Court of Appeals reversed a conviction for attempted manslaughter. The Court of Appeals stated: "A person cannot perform the same act intentionally and unintentionally at the same time." State v. George, 3 Neb.App. 354, 358, 527 N.W.2d 638, 642 (1995). James argues that a person cannot intentionally take a substantial step toward the commission of an unintentional crime and that, therefore, attempted first degree sexual assault on a child is not a crime. We disagree.
To obtain a conviction for first degree sexual assault on a child, the State must prove only that the defendant subjected the victim to sexual penetration at a time when the defendant was over the age of 19 and the victim was under the age of 16. Pursuant to § 28-201(1)(b), a person is guilty of criminal attempt if he "[i]ntentionally engages in conduct which ... constitutes a substantial step in a course of conduct intended to culminate in his ... commission of the crime."
As the trial court correctly noted, a person can intentionally attempt an act that does not require criminal intent to complete. The evidence clearly shows that James demonstrated an intent to attempt to commit the crime of first degree sexual assault on a child. The victim described three occasions during which James demonstrated an intent to sexually penetrate her, and he took substantial steps to accomplish penetration. The trial court did not err in finding James guilty of attempted first degree sexual assault on a child as a lesser-included offense.
James also assigns as error that the trial court abused its discretion by not sustaining his motion for new trial. He claims that he was convicted of a crime that does not exist in Nebraska. We find this argument to be without merit. In State v. Shockley, 231 Neb. 247, 435 N.W.2d 903 (1989), this court affirmed a criminal conviction for attempted first degree sexual assault on a child, which is a crime in Nebraska.
James also seems to argue that the trial court, which served as the finder of fact in this case, should not have found him guilty of the lesser-included offense of attempted first degree sexual assault on a child when James did not request such a finding. This argument has no merit, but we address it because it was considered by the court in ruling on the motion for new trial.
Normally, the defendant must raise the issue of lesser-included offenses at trial. In a bench trial, the defendant must timely object to the trial court's consideration of...
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