State v. Johnson
| Decision Date | 04 November 2003 |
| Docket Number | No. A-02-1503.,A-02-1503. |
| Citation | 12 Neb. App. 247,670 N.W.2d 802 |
| Parties | STATE of Nebraska, Appellee, v. Kenneth JOHNSON, Appellant. |
| Court | Nebraska Court of Appeals |
Brett McArthur, Lincoln, for appellant.
Jon Bruning, Attorney General, and Susan J. Gustafson for appellee.
Kenneth Johnson was tried in the district court for Lancaster County for first degree sexual assault on a child and incest, based on acts allegedly committed against his stepdaughter. He was acquitted of the first degree sexual assault charge but convicted of incest. Johnson appeals several issues concerning the correct definition of "minor" in a charge of incest for acts committed against a stepchild.
Johnson and his wife were married in 1991. At the time of the marriage, Johnson's wife had four children from previous relationships all of whom lived with the couple. Johnson had five children, two of whom lived periodically with the couple. At the time of the marriage, C.K., one of Johnson's wife's children, was around 10 years old.
According to Johnson's admissions to the police, when C.K. was around the age of 17, Johnson and C.K. had sexual contact, and they had sexual intercourse when C.K. was 18 years old. C.K. testified that the contact started at age 12 and that intercourse started a year later and continued until she contacted the police. Given the acquittal on the first degree sexual assault charge and the assignments of error Johnson advances, further factual details are unnecessary.
On November 30, 2001, Johnson was charged in the Lancaster County District Court with first degree sexual assault on a child (count I), in violation of Neb.Rev.Stat. § 28-319 (Reissue 1995), and incest (count II), in violation of Neb.Rev.Stat. § 28-703(1) (Reissue 1995). Thereafter, Johnson filed a motion to suppress statements he had made to officers of the Lincoln Police Department on or about October 3 or 4, 2001, which motion alleged that his Fifth Amendment rights were violated. Following a hearing, the district court denied the motion to suppress the videotape of the interview at the police department; however, the court sustained the motion to suppress the transcription of the videotape, since the transcription was not accurate.
Johnson then filed a motion in limine asking the district court to exclude the evidence of his statement made to police officers on October 4, 2001. Specifically, Johnson objected to any statement he made regarding sexual contact with the alleged victim when she was 16 years or older. At the hearing, Johnson argued that any sexual contact with the alleged victim when she was above the age of consent would not constitute incest and that the statement would be unfairly prejudicial. The district court rejected this argument and entered an order overruling the motion in limine.
The case proceeded to a jury trial about a month later. On the second day of trial, following the State's rest after its case in chief, Johnson moved for a directed verdict for the reason that the State had failed to make a prima facie showing of all the elements of its case. At that time, Johnson also raised the issue as to the lack of the word "minor" in count II of the information. Johnson argued that because of the lack of the word "minor," there was an insufficient allegation of a crime, and that the charge should therefore be dismissed. The State asked for leave to amend the information at that time. The district court then overruled all motions by both parties.
Later that day, prior to the afternoon trial session, there was apparently an off-the-record conversation with counsel regarding Johnson's motion on count II of the information. The trial judge stated on the record that the parties had agreed to continue with the evidentiary aspects and allow counsel the evening to research the issues. The record is somewhat unclear, but it seems that Johnson's motion for a directed verdict, made after the State's case in chief, was deemed unresolved, even though Johnson had proceeded with evidence. At the end of the second day, the defense rested and subsequently renewed its motion for a directed verdict for the same reasons as before. The jury was dismissed, and instructions were to be read on the third day.
On the third day of the trial, the district court received briefing from counsel regarding count II. Again, the State's counsel requested leave to amend the information to add the word "minor." The court heard arguments from both sides and consequently ruled that the State should have the right to amend by interlineation. Thus, following the amendment to the information, the district court overruled both of Johnson's motions for a directed verdict. The court also ruled that Johnson was not entitled to 24 hours' notice of the new information or to a new preliminary hearing. Johnson then moved for a new arraignment on the new information or, in the alternative, that he be allowed to withdraw his plea of not guilty so he could stand mute and file a motion to quash. The district court overruled that motion as well. Johnson also moved for a mistrial, which motion was overruled.
The district court then read the instructions. Johnson had previously objected to jury instruction No. 4. The court overruled the objection and denied Johnson's proposed jury instruction No. 4. The jury found Johnson not guilty of first degree sexual assault, but found him guilty of incest. This appeal followed.
Johnson asserts that the district court erred in (1) overruling Johnson's motion for directed verdict for the reason that the State failed to make a prima facie showing of all the elements of its case and because the statute upon which the charge was based is unconstitutionally vague, (2) allowing the State to amend the information, (3) overruling Johnson's motion for mistrial, (4) refusing to grant Johnson an arraignment and an opportunity to file a motion to quash, (5) overruling Johnson's objection to jury instruction No. 4, and (6) refusing to give Johnson's proposed jury instruction.
Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: 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 evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Segura, 265 Neb. 903, 660 N.W.2d 512 (2003).
The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Haltom, 264 Neb. 976, 653 N.W.2d 232 (2002).
Regarding questions of law presented by a motion to quash, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court. State v. Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003).
Whether jury instructions given by a trial court are correct is a question of law. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000). In an appeal based on the 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. State v. Brown, 258 Neb. 346, 603 N.W.2d 456 (1999).
To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. State v. Bao, 263 Neb. 439, 640 N.W.2d 405 (2002).
1. Motion for Directed Verdict and Alleged Unconstitutionality of § 28-703
The crux of Johnson's appeal is based upon count II of the original information, which did not allege that Johnson's stepdaughter was a "minor." Johnson alleges that the district court should have granted his motion for a directed verdict because without the word "minor," count II did not amount to a crime. The incest statute, § 28-703, provides that "any person who engages in sexual penetration with his or her minor stepchild commits incest," a Class III felony, but the statute does not define "minor." However, this argument largely evaporates if the court did not err in allowing the amendment, and as discussed later, we find no error in the amendment.
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, and a verdict may not be directed. State v. Segura, supra.
After the court allowed the State to add by interlineation to the information the word "minor," thereby alleging that C.K. was a minor, the motion for a directed verdict was overruled. The district court found that the State had presented sufficient evidence to sustain a conclusion that Johnson had committed incest with his stepdaughter, which finding is obviously correct given that C.K. testified to penetration at age 13. Johnson does not contend that a 13-year-old child is not a minor. Thus, while the trial judge, relying upon Neb.Rev.Stat. § 43-2101 (Reissue 1998), ruled that a minor stepchild for purposes of the incest statute is a person under the age of 19, we need not yet decide the age of minority to find that the motion for a directed verdict was properly overruled, since a...
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