State v. McCulloch

• Decision Date: 14 December 2007
• Docket Number: No. S-06-275.,S-06-275.
• Citation: 274 Neb. 636,742 N.W.2d 727
• Parties: STATE of Nebraska, Appellee, v. Robert D. McCULLOCH, Appellant.
• Court: Nebraska Supreme Court

742 N.W.2d 727

274 Neb. 636

STATE of Nebraska, Appellee, v. Robert D. McCULLOCH, Appellant.

No. S-06-275.

Supreme Court of Nebraska.

December 14, 2007.

Matthew M. Munderloh, of Johnson & Mock, Oakland, for appellant.

Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Robert D. McCulloch appealed his conviction for first degree sexual assault to the Nebraska Court of Appeals. The Court of Appeals determined that McCulloch had received ineffective assistance of counsel at trial and reversed his conviction. The Court of Appeals concluded that "all the evidence presented by the State" at trial was insufficient to support a conviction and remanded the cause to the district court for Burt County with directions to dismiss the charges against McCulloch. State v. McCulloch, 15 Neb. App. 616, 623, 733 N.W.2d 586, 592 (2007). We granted the State's petition for further review. We reverse the decision of the Court of Appeals and remand the cause to the Court of Appeals with instructions to affirm McCulloch's conviction and sentence.

STATEMENT OF FACTS

The State charged McCulloch with first degree sexual assault, alleging that he subjected his 13-year-old niece, P.M., to sexual penetration at a time when he was 19 years of age or older. See Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1995). McCulloch's age at the time of the alleged crime is an element under § 28-319(1)(c). A jury found McCulloch guilty, and the court sentenced him to 8 to 15 years' imprisonment. No direct appeal was taken. McCulloch filed a postconviction action alleging that counsel was ineffective for failing to take a direct appeal, and the court granted relief in the form of the right to file the present direct appeal.

On appeal to the Court of Appeals, McCulloch asserted, inter alia, that he had received ineffective assistance of counsel because defense counsel elicited the only evidence at trial that proved that he was 19 years of age or older at the time of the incident. The Court of Appeals initially rejected this assignment of error. State v. McCulloch, 15 Neb.App. 381, 727 N.W.2d 717 (2007) (McCulloch I). In McCulloch I, the Court of Appeals concluded that regardless of whether counsel's performance was deficient, McCulloch was not prejudiced by such performance because the State had adduced sufficient circumstantial evidence to allow the trier of fact to infer that McCulloch was at least 19 at the time of the crime. The Court of Appeals noted that McCulloch was present in court, was identified by witnesses, and testified in his own behalf and that therefore, his physical appearance was open to view by the jury. The Court of Appeals stated that a defendant's physical appearance may be considered by the jury in determining his or her age. The Court of Appeals noted that there was other circumstantial evidence of McCulloch's age, which in itself was insufficient to prove his age but which combined with the observation of his physical appearance allowed the jury to reasonably infer that he was at least 19. Such circumstantial evidence noted by the Court of Appeals in McCulloch I consisted of P.M.'s references to McCulloch as her father's brother or her uncle and evidence that McCulloch had a sexual relationship with P.M.'s mother 3 years prior to the incident with P.M.

After McCulloch I was released, McCulloch moved the Court of Appeals for rehearing. He argued, inter alia, that testimony regarding his sexual relationship with P.M.'s mother was elicited by his own counsel rather than by the State and that therefore, to the extent such evidence supported a finding that he was 19 or older, such fact did not support a finding of no prejudice but instead supported his claim that counsel was ineffective for putting on such evidence. The Court of Appeals granted a rehearing. On rehearing, the Court of Appeals withdrew its opinion in McCulloch I and concluded that trial counsel performed in a deficient manner by eliciting the only evidence of McCulloch's age. State v. McCulloch, 15 Neb.App. 616, 733 N.W.2d 586 (2007) (hereinafter McCulloch II).

In McCulloch II, the Court of Appeals referred to State v. Lauritsen, 199 Neb. 816, 261 N.W.2d 755 (1978), in which this court held that a jury may consider the defendant's physical appearance to determine his or her age if there is other circumstantial evidence to support an inference that the defendant is of sufficient age. The Court of Appeals again determined that McCulloch's physical appearance was open to view by the jury, because he was present in court and P.M. pointed him out during her testimony. However, the Court of Appeals concluded that the State had not adduced sufficient evidence in addition to physical appearance from which the jury could infer that McCulloch was at least 19 years old. The Court of Appeals noted that the only evidence adduced by the State arguably relevant to McCulloch's age was P.M.'s testimony that McCulloch was her uncle. The Court of Appeals contrasted this evidence to evidence in Lauritsen where the defendant had bought alcohol. The Court of Appeals noted that in Lauritsen, based on evidence that the defendant bought alcohol, a jury could reasonably have inferred that the defendant was of legal age to buy alcohol and therefore was of sufficient age under the statute then at issue, Neb.Rev.Stat. § 28-408.03(1)(c) (Reissue 1975). In contrast, in the present case, the Court of Appeals determined that evidence that McCulloch was the 13-year-old victim's uncle did not give rise to a logical inference that he was necessarily at least 19 years old.

The Court of Appeals stated in McCulloch II that the State adduced no further circumstantial or other evidence of McCulloch's age and that the only other evidence from which the jury could have inferred that he was at least 19 was adduced by defense counsel. The Court of Appeals noted that during cross-examination of a witness in the State's case in chief, defense counsel elicited testimony that McCulloch had had a sexual relationship with P.M.'s mother 3 years prior to the incident with P.M. and that P.M.'s mother was older than 19 at the time of that relationship. Later in the trial during the case presented by McCulloch, defense counsel elicited testimony during the direct examination of McCulloch's sister that McCulloch was 6 years older than the witness and that the witness had children who were 12 and 13 years old at the time of trial. Because such evidence elicited by defense counsel was the only circumstantial evidence which, when combined with an observation of McCulloch's physical appearance, could have allowed the jury to determine that McCulloch was at least 19 years old, the Court of Appeals determined that defense counsel performed in a deficient manner. The Court of Appeals concluded that because such deficient performance prejudiced McCulloch, he had received ineffective assistance of counsel.

The Court of Appeals further concluded that "all the evidence presented by the State" was insufficient to support a conviction and that therefore, under Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), the Double Jeopardy Clause forbade retrial. McCulloch II, 15 Neb.App. at 623, 733 N.W.2d at 592. The Court of Appeals reversed McCulloch's conviction and remanded the cause with directions to dismiss.

We granted the State's petition for further review of McCulloch II.

ASSIGNMENT OF ERROR

On further review, the State asserts that the Court of Appeals erred in concluding that McCulloch received ineffective assistance of counsel.

STANDARD OF REVIEW

On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. State v. Tompkins, 272 Neb. 547, 723 N.W.2d 344 (2006).

ANALYSIS

The Record Is Not Sufficient for the Court of Appeals to Determine That McCulloch Received Ineffective Assistance of Counsel.

The State asserts on further review that the Court of Appeals erred in concluding that McCulloch received ineffective assistance of counsel. The State argues that the Court of Appeals' reasoning was based on a hindsight review of the trial and that the Court of Appeals' analysis presumes that in formulating trial strategy, defense counsel should have been required to assume that the State would fail to prove the age element of the crime. We conclude that the record on direct appeal was not sufficient to determine whether McCulloch received ineffective assistance of counsel and that therefore, the Court of Appeals erred in concluding that he did.

The Court of Appeals determined that McCulloch received ineffective assistance of counsel because defense counsel elicited the only evidence which, when combined with observation of his physical appearance, would have allowed the jury to determine that he was over 19 years old at the time of the incident with P.M. The Court of Appeals cited State v. Lauritsen, 199 Neb. 816, 261 N.W.2d 755 (1978). Under Lauritsen, the defendant's physical appearance alone is not sufficient to prove the defendant is of a certain age, but it may be considered as evidence of age when combined with other circumstantial evidence to support an inference that the defendant is of a sufficient age. The Court of Appeals noted that the circumstantial evidence in the present case included: (1) testimony presented by the State that McCulloch was the 13-year-old victim's uncle; (2) testimony adduced by defense counsel on cross-examination during the State's case in chief that McCulloch had a sexual relationship with the victim's mother 3 years prior to the incident with the victim; and (3) testimony adduced by defense counsel during presentation of the defense's case that McCulloch was 6 years older than his sister and that the sister had children who were 12 and 13 years old at...