State v. Lee

• Decision Date: 23 December 1994
• Docket Number: No. S-93-1096,S-93-1096
• Citation: 247 Neb. 83,525 N.W.2d 179
• Parties: STATE of Nebraska, Appellee, v. Robert M. LEE, Appellant.
• Court: Nebraska Supreme Court

Page 179

525 N.W.2d 179

247 Neb. 83

STATE of Nebraska, Appellee, v. Robert M. LEE, Appellant.

No. S-93-1096.

Supreme Court of Nebraska.

Dec. 23, 1994.

Syllabus by the Court

1. Trial: Evidence: Waiver. Normally, an objection to inadmissible evidence is waived if the objecting party later introduces similar evidence.

2. Trial: Evidence: Rebuttal Evidence. The introduction of similar evidence solely for the purpose of meeting the adversary's case by explaining or rebutting the original evidence does not waive an objection to the original evidence.

3. Rules of Evidence. Only relevant evidence is admissible.

4. Rules of Evidence: Words and Phrases. Relevant evidence is that evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.

5. Trial: Rules of Evidence. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

6. Rules of Evidence. Only evidence tending to suggest a decision on an improper basis is unfairly prejudicial.

7. Sexual Assault: Evidence. In a sexual assault case, evidence of the plan or scheme through which one seeks to entice another into sexual congress does not tend to suggest a decision on an improper basis.

8. Trial. It is not error to overrule an objection which is in part valid and in part invalid.

9. Trial: Evidence. An objection to an exhibit as a whole is properly overruled where a part of the exhibit is admissible.

10. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, irrespective of whether an error in admitting or excluding evidence reaches a constitutional dimension, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

11. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In determining whether error in admitting evidence was harmless, an appellate court bases its decision on the entire record in determining whether the evidence materially influenced the jury in a verdict adverse to the defendant.

12. Trial: Evidence: Convictions: Appeal and Error. The improper admission of evidence is harmless error and does not require reversal if the evidence is cumulative and there is other competent evidence to support the conviction.

Thomas M. Kenney, Douglas County Public Defender, and Marcena M. Hendrix, for appellant.

Don Stenberg, Atty. Gen., and Delores Coe-Barbee, for appellee.

HASTINGS, C.J., WHITE, CAPORALE, LANPHIER, and WRIGHT, JJ., and GRANT, J., Retired.

CAPORALE, Justice.

I. STATEMENT OF CASE

Pursuant to verdict, the defendant-appellant, Robert M. Lee, was adjudged guilty of two counts of first degree sexual assault, in violation of Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1989), which prohibits one 19 years of age or older from sexually penetrating, including through fellatio, another who is less than 16 years of age, Neb.Rev.Stat. § 28-318(6) (Reissue 1989). Lee appealed to the Nebraska Court of Appeals, assigning a variety of errors, including that the trial court erred in admitting certain evidence over his objections. Concluding that by making use of the evidence in question Lee had waived his objections, the Court of Appeals, in a memorandum opinion dated August 2, 1994, affirmed the judgment of the trial court. Lee thereupon sought further review by this court, asserting only that the Court of Appeals erred in concluding that he had waived his evidential objections. Although the Court of Appeals did so err, its judgment of affirmance was nonetheless correct; accordingly, we affirm.

II. SCOPE OF REVIEW

In proceedings where the statutes embodying the rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility. State v. Anderson, 245 Neb. 237, 512 N.W.2d 367 (1994); State v. Baker, 245 Neb. 153, 511 N.W.2d 757 (1994); State v. Wood, 245 Neb. 63, 511 N.W.2d 90 (1994).

III. FACTS

Overruling Lee's objections that the evidence was not relevant and that, in any event, its probative value was outweighed by its unfairly prejudicial nature, the trial court received, during the plaintiff-appellee State's case in chief, a variety of sexually explicit items which police had seized from the residence Lee shared with his wife. These items were identified as trial exhibits 12, 13, 15, and 17.

Exhibit 12 appears to be a double page removed from a magazine. It consists largely of photographs depicting an adult male and adult female engaged in sexual play, including the suggestion of fellatio.

Exhibit 13 is a book dealing primarily with adult heterosexual conduct, including fellatio, and some adult female homosexual activity.

Exhibit 15 consists of 10 paperback books found in a box which deal with a variety of sexual activity. Seven of these include depictions of pedophilic conduct. Of these, one describes homosexual acts between a middle-aged man and a reluctant 14-year-old boy servant. Several of the others concern the attraction of adult females to young boys, and one deals with incest.

Exhibit 17 is an advertisement for male homosexual videotapes. Although nothing explicitly states that underage sexual activity is portrayed, some of the males pictured appear as if they could be underage, and a few of the titles include innuendo about underage sexual activity.

Lee and his wife both babysat and otherwise visited with the younger male victim from the time he was about 2 1/2 years old to the time he was about 5 1/2. According to this victim, Lee had the victim perform fellatio on Lee.

Lee babysat the older male victim from the time the latter was 8 years old until he was about 15 years old. According to this reluctant witness, during these occasions Lee performed fellatio upon him. He recognized exhibit 13 and one of the nonpedophilic books in exhibit 15 from snooping in Lee's dresser.

A then-21-year-old male witness testified, without objection, that he had seen exhibit 13 in Lee's possession, as well as two of the pedophilic books from exhibit 15. This witness said that he would go to Lee's home, and Lee would show these to the witness in the company of the older victim and another boy. According to this witness, this was done "in the attempt to get us aroused." While these books were being perused, they would discuss the homosexual activities described in the books. This witness also testified, again without objection, that although he never actually had sex with Lee, one time when he was 17 years old, Lee shoved the witness' head into Lee's crotch in an unsuccessful attempt to get the witness to perform fellatio.

The police officer who searched the Lee residence testified, without objection, that in the course of the search Lee admitted that there had been one occasion when the younger of the victims performed fellatio on Lee and that the older victim and Lee performed fellatio on each other. Lee also admitted that he and an adult male coworker had performed fellatio on each other.

After the State rested, the defense put on its case, and both Lee and his wife testified about the sexual material.

The wife testified that exhibit 13 had been given to her by an old friend before she married Lee. When asked about exhibit 15, she testified that one of the books belonged to someone else, another was given by a friend, and a third was one that she and Lee had had since the two had been going together. The others were from Lee's place of employment. In a seeming contradiction, she testified further that the books had been in the house for only a week and that Lee was going to take them back to his place of employment. She also explained that exhibit 17 kept coming in the mail even though they had written and asked that it be stopped.

Lee testified that he had picked up some of the books constituting exhibit 15 around work and that some of them were given to him at work. He kept them in his dresser until he had read them, after which they were placed in a box. He also explained that he had ordered some pornographic information for the male coworker with whom the police officer claimed Lee had admitted engaging in fellatio. As the coworker still lived with his mother, he did not want it delivered there. As a result, Lee ended up on a mailing list and in possession of exhibit 17.

Lee denied having said he and the coworker had had sexual congress and testified that on the occasion the officer described involving the younger victim, the victim had grabbed Lee's penis and attempted to put it into the victim's mouth, but that Lee prevented that. According to Lee, the victim dominated the situation. Lee explained that the victim said he had participated in such activity with an uncle. However, Lee also testified that he had told the officer that there had been 10 to 12 occasions where the older victim had at least attempted to perform fellatio on Lee.

IV. ANALYSIS

As part I foreshadows, we must review not only the Court of Appeals' determination that Lee waived his objections, but must consider as well the admissibility of the evidence in question and the consequences of any erroneous ruling in that regard.

1. Nonwaiver of Objections

It is true that normally, an objection to inadmissible evidence is waived if the objecting party later introduces similar evidence. See, State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989); State v. Harper, 218 Neb. 870, 359 N.W.2d 806 (1984); Tyrrell v. State, 173 Neb. 859, 115 N.W.2d 459 (1962); Johnson v. Airport Authority, 173 Neb. 801, 115 N.W.2d 426 (1962); Sump v. Omaha Public Power Dist., 168 Neb. 120, 95 N.W.2d 209 (1959); Johnson v. State, 112 Neb. 530, 199 N.W. 808 (1924); Dawson v. State, 96 Neb. 777, 148 N.W. 957 (1914). But the rule does not apply where the...