State v. Lierman

CourtSupreme Court of Nebraska
Citation305 Neb. 289,940 N.W.2d 529
Docket NumberNo. S-18-402.,S-18-402.
Parties STATE of Nebraska, appellee, v. Darryl LIERMAN, appellant.
Decision Date20 March 2020
I. INTRODUCTION

Darryl Lierman was convicted of multiple counts of sexual assault of a child and child abuse and was sentenced to a total term of 70 to 140 years’ imprisonment, with credit for 272 days’ time served. The child in question was B.L., Lierman’s adopted daughter, who was born in January 2000. Lierman’s primary argument on appeal is that the district court erred in admitting evidence of prior sexual assault alleged to have been committed by Lierman against another adopted daughter, A.L., because Lierman was acquitted in that case. We affirm.

II. BACKGROUND

Lierman was charged by information with three counts of first degree sexual assault of a child, three counts of third degree sexual assault of a child, and four counts of child abuse. Though further details of these charges will be discussed in more detail below, it is sufficient to note here that B.L. alleged this sexual abuse began in approximately 2010. At that time, Lierman was on bond awaiting trial on charges that he sexually abused B.L.’s biological sister, A.L., who was another of Lierman’s adopted daughters. Lierman was eventually acquitted by a jury of the charges involving A.L.

B.L.’s allegations first came to light on or about February 12, 2015. On February 7, B.L. ingested an unknown number of pills in an attempted suicide and was taken to a hospital in Kearney, Nebraska. During a counseling session on February 12, B.L. made statements suggesting that Lierman had been sexually abusing her. An interview at a child advocacy center was scheduled, at which time B.L. made further allegations against Lierman, including that he would make her model bras for him and that he would watch her while she was showering. B.L. was placed in foster care while the matter was investigated.

In July 2015, B.L. disclosed that from the ages of 12 to 14, she was subject to digital and penile penetration by Lierman on more than one occasion, primarily while at the family’s home in Neligh, Nebraska. Lierman was ultimately charged with the allegations set forth above. Various pretrial hearings were held, details of which will be noted below as relevant. After a jury trial, Lierman was found guilty of all charges. He appeals.

III. ASSIGNMENTS OF ERROR

On appeal, Lierman assigns that the district court erred in (1) allowing the State to present evidence of prior sexual assaults, where that evidence was in support of charges of sexual assault for which Lierman was ultimately acquitted, or where at least some of those assaults were alleged to have been committed by Lierman in other jurisdictions; (2) not admitting evidence that prior to her suicide attempt, B.L. was unhappy at home and at school and was using the home computer to access adult dating sites; (3) finding the evidence sufficient to convict Lierman; (4) not recusing itself; (5) imposing excessive sentences; and (6) not permitting Lierman to issue subpoenas duces tecum in order to obtain records through depositions. Lierman additionally assigns that his counsel was ineffective by not (1) calling certain witnesses, (2) utilizing evidence of Lierman’s driving logs to form an alibi defense, (3) filing a motion in limine regarding the evidence to be sought about B.L.’s difficulties at school and general unhappiness, (4) objecting to the order in which the State presented its evidence, and (5) objecting to the State’s use of B.L.’s suicide attempts and ideations.

IV. ANALYSIS
1. ADMISSIBILITY OF EVIDENCE
(a) Standard of Review

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.1 Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.2

(b) Background

Prior to trial, the State filed a motion for a hearing to determine the admissibility of prior sexual assault evidence and an intent to offer additional evidence pursuant to Neb. Rev. Stat. §§ 27-404 and 27-414 (Reissue 2016). The State averred that it wished to use evidence that had previously been presented against Lierman in the case involving A.L.’s allegations.

At this hearing, the State introduced evidence generally comprising three categories: (1) evidence that had been offered against Lierman during A.L.’s trial in Antelope County, Nebraska, for which Lierman was acquitted; (2) evidence that was not offered in Antelope County either for reasons not clear from the record or because the events in question did not occur in Antelope County, but instead in Madison County, Nebraska, or while Lierman was on the road with A.L.; and (3) evidence of allegations by B.L. that did not occur in Antelope County, but instead in Madison County, or while Lierman was on the road with B.L.

A.L. testified that Lierman began sexually abusing her when she was approximately 10 years old, when the family lived in both Neligh and Tilden, Nebraska. A.L. testified that Lierman had, for the 2 or 3 years prior, sought "hip rubs" from A.L. and asked her to walk on his back. (There was testimony at trial that "hip rubs" and the children’s walking on Lierman’s back were a common occurrence for all of the children in the household and were apparently performed to relieve pain that Lierman suffered as a result of his over-the-road trucking job. The record shows that Lierman was obese, weighing approximately 500 pounds.)

The first sexual abuse occurred when A.L. was sleeping with Lierman and Lierman’s wife, Julie Lierman (the mother of the adopted children), in the couple’s bed. Early in the morning of this first occasion, A.L. was giving Lierman a hip rub and accidently rubbed his penis over his clothing. A.L. was told to stop and was sent to her own bed. But the next night, A.L. was again sleeping with Lierman and Julie in their bed, when Lierman told her to "do what [you] did last night." At first A.L. thought Lierman meant a hip rub, but subsequently began rubbing his penis over his clothes, and Lierman did not tell her to stop.

Lierman eventually introduced A.L. to the "cowlick," which involved Lierman’s licking A.L.’s vagina. A.L. testified that at the time, she and Lierman were watching television in the couple’s bedroom and Julie was not at home. The "cowlick" began after the family moved to Tilden.

A.L. also testified that Lierman began taking her on his multiday trucking routes and would engage in sexual activity with her in the sleeper portion of the semi-truck. On one such occasion in the truck, A.L. and Lierman were watching a movie and Lierman told A.L. to rub his penis, which A.L. did over his clothing. Lierman then directed her to rub his penis under his clothing. In a second incident, A.L. was walking on Lierman’s back, when he rolled over and she accidentally hit his groin area, causing him pain. He then grabbed her, took off her pajamas, got on top of her, and penetrated her vagina with his penis. A.L. cried out that it hurt and screamed at him to stop, but Lierman placed a pillow over her head to muffle the screams. A.L. further testified that almost every time she went with Lierman in the truck, some type of sexual activity occurred, and that she was often asked to model underwear that he had brought along.

A.L. testified that after the family moved from Tilden to Neligh, she shared a room with another sister. The house was being remodeled, so Lierman and Julie’s bed was in the living room, and as a result, no sexual abuse took place during that time. But as soon as the remodel was finished, the sexual abuse resumed. The abuse usually began with a request that A.L. give Lierman a hip rub or back rub, and it occurred most evenings when Lierman was not on the road. A.L. also testified that she performed oral sex on Lierman and that Lierman used a purple sex toy on her on at least two occasions.

A.L. disclosed some of these events to Neligh school authorities on September 17, 2010, after speaking with the counselor about her concern that Lierman may have impregnated her. A search of the family’s home revealed bedding and a purple sex toy. DNA that included Lierman and A.L., but excluded Julie, was found on both items. (The DNA evidence was apparently either not available or not offered at the time of Lierman’s trial on A.L.’s allegations.)

Evidence of non-Antelope County incidents involving B.L. and Lierman was also offered. B.L.’s therapist testified that B.L. revealed to her that Lierman began sexually abusing her when she was approximately 10 years old, when the family lived in Meadow Grove, Nebraska, and while Lierman was out on bond for the charges he faced involving A.L. Similar to A.L., the abuse began with Lierman’s asking B.L. to massage his penis. B.L. reported that Lierman assaulted her while she was with him on the road and that Lierman was " ‘not right down there,’ " meaning something was wrong with his penis. B.L. also reported that Lierman penetrated her with his penis and that it hurt.

Following this hearing, the court found that (1) the State was not barred by principles of collateral estoppel from introducing evidence regarding A.L., despite the fact that Lierman had been acquitted of those charges; (2) A.L.’s allegations were inextricably intertwined with B.L.’s allegations; and (3) the evidence the State sought to admit as to both A.L. and B.L. was conditionally admissible under §§ 27-404 and 27-414, subject to confirmation of factual similarities deemed relevant at trial.

(c) Analysis

In his first assignment of error, Lierman assigns that the district court erred in admitting A.L.’s allegations, because he was acquitted of those charges at trial. He contends that the principles of collateral...

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