State v. Lessley
| Decision Date | 15 October 1999 |
| Docket Number | No. S-98-1004.,S-98-1004. |
| Citation | 601 N.W.2d 521,257 Neb. 903 |
| Parties | STATE of Nebraska, appellee, v. Richard E. LESSLEY, appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, and Timothy F. Shanahan for appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson for appellee.
Richard E. Lessley appeals his conviction for first degree sexual assault. Lessley challenges an evidentiary ruling which excluded him from presenting evidence of the victim's sexual past, and he challenges his sentence as being excessive. On our own motion, we removed this matter to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. We reverse the judgment and remand the cause for a new trial.
Lessley was charged with first degree sexual assault as a result of an allegation by Lessley's coworker, M.B., that Lessley subjected her to anal intercourse, without her consent, on November 23, 1997. Lessley admitted to having sex with M.B., but alleged it was consensual.
Prior to trial, Lessley motioned to present evidence of M.B.'s past sexual conduct. The trial court overruled the motion. Lessley made an offer of proof that Joseph Eck, a coworker of M.B.'s and Lessley's, would testify M.B. told Eck that she has anal intercourse with males and does so to avoid becoming pregnant.
At trial, M.B. testified that on November 23, 1997, she was employed by Wells Fargo Guard Service as a security guard and was working the 8 a.m. to 4 p.m. shift at First National Bank in Omaha, Nebraska. M.B. testified that she had been a security guard at this location for about 3 weeks. At about 3:25 p.m., M.B. was on the ninth floor of the bank building and received a radio call to come down to the first floor. M.B. went to the first floor, where Lessley asked her to take him to the ninth floor because he wanted to watch a football game before his 4 p.m. shift as a security guard began. The ninth floor could be accessed only by the use of a keycard, which M.B. had because she was still on duty and Lessley did not have because he was not yet on duty. M.B. took Lessley to the ninth floor, where they watched a football game on television. Approximately 10 minutes later, Lessley wanted to go up to the 13th floor, which also could be accessed only by a keycard. M.B. and Lessley took the elevator to the 13th floor, and M.B. used the keycard to gain access to the floor. Lessley then led M.B. into one of the offices located on that floor. M.B. went over to a window and was looking out when Lessley approached her from behind and subjected her to anal intercourse without her consent.
During the State's opening statement, the State informed the jury that M.B. is a lesbian. M.B. was asked on direct examination whether she had gotten comfortable enough with her coworkers that she would discuss intimate personal matters with them, such as sex or sexual preferences. M.B. responded that she would never talk about any of her sexual ideas or sexual preferences with her coworkers. This exchange then followed:
M.B. further testified on direct examination that the wind was knocked out of her during the encounter and that she had "never, ever engaged in anything like that." In addition, M.B. was asked if she recalled whether Lessley ejaculated during the incident, and she responded "I would not know, sir, due to the fact I'm a lesbian and we don't do that."
On cross-examination of M.B., defense counsel asked M.B. if it was true that she told Eck she has anal intercourse with men. M.B. responded, "I do not." Defense counsel then asked, "[t]hat you do so so that you don't get pregnant?" and M.B. responded, "I did not say that." The State did not object to such questioning.
At the end of the State's case in chief, Lessley renewed his motion to present evidence of M.B.'s past sexual conduct, arguing that M.B.'s testimony that she is a lesbian shows a greater likelihood that the incident at issue was not consensual and that Lessley should be allowed to confront his accuser. Lessley also argued that because M.B. denied making any statements about prior anal intercourse with males, he should be allowed to impeach her on that statement. The trial court overruled the motion, finding that evidence of M.B.'s past sexual behavior is immaterial and irrelevant and barred by the rape shield law, Neb.Rev.Stat. § 28-321 (Reissue 1995).
During the defense's case in chief, Lessley again made an offer of proof that Eck would testify that M.B. told him she has anal intercourse with males and that she does so to avoid becoming pregnant. Lessley argued that he should be allowed to present this testimony due to the facts that M.B. testified she is a lesbian and that she denied making the statement to Eck about having anal intercourse with males. The trial court renewed its finding excluding any evidence of M.B.'s past sexual behavior. At the completion of Lessley's evidence, Lessley again renewed the motion to present evidence of M.B.'s past sexual behavior. The trial court again overruled the motion. After the State informed the trial court that it did not have any rebuttal evidence to offer, Lessley again renewed the motion, and it was again overruled.
After a jury instruction conference, Lessley once again renewed the motion to present evidence of past sexual behavior and again made an offer of proof in support of the motion, which was overruled.
A jury found Lessley guilty of first degree sexual assault. After a presentence investigation, Lessley was sentenced to 7 to 10 years' incarceration, with credit for 270 days previously served.
In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in determining admissibility. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999). Where, as here, the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. Id.
Lessley assigns that (1) the trial court erred in overruling his motion to present evidence of the victim's past sexual behavior and (2) the sentence imposed by the trial court was excessive.
Nebraska's rape shield law, § 28-321(2), provides in part that evidence of a sexual assault victim's past sexual behavior shall not be admissible unless such evidence is:
(a) Evidence of past sexual behavior with persons other than the defendant, offered by the defendant upon the issue whether the defendant was or was not, with respect to the victim, the source of any physical evidence, including but not limited to, semen, injury, blood, saliva, and hair; or (b) evidence of past sexual behavior with the defendant when such evidence is offered by the defendant on the issue of whether the victim consented to the sexual behavior upon which the sexual assault is alleged if it is first established to the court that such activity shows such a relation to the conduct involved in the case and tends to establish a pattern of conduct or behavior on the part of the victim as to be relevant to the issue of consent.
Stated briefly, the statutory purpose was to protect rape victims from grueling cross-examination concerning their previous sexual behavior, which often elicited evidence of questionable relevance to the case being tried. State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997); State v. Schenck, 222 Neb. 523, 384 N.W.2d 642 (1986). Under the rape shield law, evidence of a complainant's prior sexual behavior is inadmissable unless it tends to prove one of the two explicitly stated exceptions, i.e., source of physical evidence or consent. State v. Sanchez, supra; State v. Earl, supra.
It is clear that the evidence Lessley sought to present at trial does not fit within either of the two exceptions found in the statute. Although the proffered evidence did relate to past sexual behavior with persons other than Lessley, it was not offered to prove the source of any physical evidence. The second exception under the rape shield law deals with evidence of past sexual behavior with Lessley. This exception does not apply to the proffered testimony of Eck. Lessley does not argue that the evidence fits within one of these exceptions, but, rather, contends that the evidence is admissible because its exclusion would violate his right to confrontation under the Sixth Amendment to the U.S. Constitution. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor...."
Lessley argues that M.B.'s past sexual history was not an issue raised by him, but, rather, the State raised the issue of M.B.'s homosexuality during its direct examination of M.B., thereby "opening the door." Lessley asserts that the State's reason for eliciting this testimony is clear; if the jury hears that M.B. has sexual relationships only with women, the possibility that she would consent to sex with Lessley becomes less likely. Lessley argues that once M.B. testified she is a lesbian, the State should not have been allowed to hide behind § 28-321 and claim that any rebuttal evidence is barred by that statute. Lessley argues that once the door is opened in relation to M.B.'s sexual orientation, Lessley must have an...
To continue reading
Request your trial
-
State v. Quintana
...at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (1999). In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibil......
-
Sturzenegger v. Father Flanagan's Boys Home
...§ 27-103(1)(b) (Reissue 1995). 14. Talle v. Nebraska Dept. of Soc. Servs., 253 Neb. 823, 572 N.W.2d 790 (1998). 15. State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (1999); State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999). 16. Id. 17. Id. 18. See Temple, supra note 12. 19. See, e.g., Uni......
-
State v. Thomas
...at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (1999). We find no abuse of discretion by the trial court as to this evidentiary Next, Thomas asserts that the court erred in a......
-
State v. Cody
...Art. 1, §11 of the Nebraska Constitution. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct.480, 102 L.Ed.2d 513 (1988); State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (1999). Following a hearing governing Cody's motion and a companion motion in limine filed by the State, the district court ent......