State v. Morris

• Decision Date: 25 October 1996
• Docket Number: No. S-94-1197,S-94-1197
• Citation: 554 N.W.2d 627,251 Neb. 23
• Parties: STATE of Nebraska, Appellee, v. Louise MORRIS, Appellant.
• Court: Nebraska Supreme Court

Page 627

554 N.W.2d 627

251 Neb. 23

STATE of Nebraska, Appellee, v. Louise MORRIS, Appellant.

No. S-94-1197.

Supreme Court of Nebraska.

Oct. 25, 1996.

Syllabus by the Court

1. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by those rules, not by judicial discretion, except in those instances in which the rules make judicial discretion a factor.

2. Rules of Evidence: Hearsay. Neb.Evid.R. 801(4)(a)(ii) permits the introduction of a declarant's consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive.

3. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

4. Criminal Law: Trial: Juries: Appeal and Error. Harmless error exists in a jury trial of a criminal case when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in a verdict adverse to the substantial right of the defendant.

5. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harmless error and does not require reversal if the evidence erroneously admitted is cumulative and other relevant evidence properly admitted, or admitted without objection, supports the finding of the trier of fact.

6. Evidence. Cumulative evidence means evidence tending to prove the same point to which other evidence has been offered.

7. Trial: Evidence: Appeal and Error. If other evidence in the record clearly establishes the facts supported by inadmissible evidence, the court neither abused its discretion nor prejudiced the defendant by receiving inadmissible evidence.

Peter K. Blakeslee, Lincoln, for appellant.

Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

WRIGHT, Justice.

Louise Morris was convicted by a jury of one count of first degree sexual assault on a child and two counts of sexual assault of a child. She appealed to the Nebraska Court of Appeals, which affirmed the convictions and sentences. Morris petitioned for further review, which we granted.

SCOPE OF REVIEW

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by those rules, not by judicial discretion, except in those instances in which the rules make judicial discretion a factor. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996); State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994).

FACTS

In November 1993, Morris was charged with one count of first degree sexual assault on a child and one count of sexual assault of a child for assaults on her daughter, Nicole T., and one count of sexual assault of a child for assaults on her son, Jason T. These assaults allegedly occurred from January 1983 to December 1988, when Nicole was between 4 and 10 years of age and when Jason was between 1 and 7 years of age.

Morris and Gene T. were married in 1978. The family lived in a trailer home near Seward and later moved to a house in Seward After Jenny B., the stepmother, moved in, the father and stepmother began to have problems with Jason. He became violent, had nightmares, and wet the bed. About the same time, Nicole began losing weight. Both children were taken to Pioneer treatment center for evaluation. In July 1992, Jason was taken to Lincoln General Hospital, where he stayed for approximately 3 months. It was determined that he required additional treatment, and he was admitted to Epworth Village, a residential treatment center for children.

on Eighth Street. Morris left the family in March 1989 and moved to Grand Island, where she remarried. The children remained in the father's home, and in January 1990, he was awarded custody in the final divorce decree. The father remarried in November 1990.

In October 1992, the father and stepmother visited Jason at Epworth Village. It was during this visit that Jason told them he had been sexually abused by Morris. Jason also told them that Nicole knew about the abuse. When the father and stepmother questioned Nicole about the abuse, she ran upstairs and started beating her head on the floor, saying that she wanted to die.

Jason was 12 at the time he testified at trial. He stated that he did not tell anyone about the assaults at the time they happened because Morris told him not to tell. Jason testified that Morris touched his penis. He testified that he touched Morris' private parts because she told him to do so and that this happened both at the trailer and at the house on Eighth Street. He stated that Sandra Kroeker, a clinical social worker, was the first person he told about the abuse.

Nicole was 15 at the time she testified. She had lived with Morris in the trailer, and she testified that while they lived there, Morris would touch her breasts and vagina as often as twice a week. These incidents allegedly happened from about the time Nicole was 4 until she was 10. This alleged touching continued after the family moved to the house on Eighth Street, but was not as frequent. Nicole testified that she had seen her mother have sexual contact with Jason since he was 1 or 2 years old and that Morris threatened to hurt her or her father if she told anyone about the assaults. Nicole did not tell anyone until after Jason told Kroeker about the assaults.

Kroeker testified that during her first session with Jason on October 29, 1992, he told her he had been sexually abused by his mother. Kroeker was told by Jason that his mother would pick him up from school, bring him home, take his pants off, and rub his penis. Jason also watched his mother engage in sexual intercourse with different men. On November 5, Jason told Kroeker that his mother frequently engaged him in sexual contact with her. She would rub his penis and would have him touch her breasts and vagina. Morris also had Jason dress as a girl and then masturbate his sister while Morris watched. On January 15, 1993, Jason completed an anatomical drawing to help identify the parts of his body that were touched and to focus in on what had happened. He continued to relate the sexual abuse at each session Kroeker had with him, and his statements to her regarding the abuse were consistent throughout his reporting. Kroeker testified that it is common for children to delay reporting abuse by a family member.

The children's stepmother testified that Jason told her in October 1992 that Kroeker was counseling him and that he had been sexually assaulted by Morris.

Dr. Kathryn Benes, a psychologist who evaluated Jason at Lincoln General Hospital prior to his counseling with Kroeker, testified that Jason suffered from depression and posttraumatic stress disorder. Benes specifically asked Jason if anyone had touched him in a way that made him feel uncomfortable, and he said no. Benes testified that it is not unusual for a child to not report the abuse to an adult because children who have been sexually abused by adults often do not trust other adults.

Sherry Lave, the police officer who was assigned to interview Nicole at the time the abuse was reported, testified that during her interview with Nicole, she was told that Morris had touched Nicole inappropriately on numerous occasions and that the abuse began At trial, during cross-examination of the children, it was suggested by the defense that the children had fabricated the allegations and that the children had been subjected to improper influence by the father, the stepmother, Kroeker, and Lave. Morris argues that the alleged improper influence first occurred on October 29, 1992, when Jason first met with Kroeker. The children's statements to these witnesses were all made after Jason was interviewed by Kroeker on October 29 and were consistent with the initial reporting of abuse.

when Nicole was 4 or 5 years old. Lave stated that Nicole said she had been touched all over on her breasts, that Morris had inserted her fingers into Nicole's vaginal area, and that Morris had instructed Nicole on various occasions to touch Jason's penis. Nicole indicated to Lave that some of Morris' male acquaintances had sexually assaulted Nicole and that Morris was present when this occurred.

Four witnesses testified at trial over Morris' continuing hearsay objection to what Nicole and Jason had told them. The witnesses were Eunice Williams, the director of therapeutic services and a psychotherapist at Epworth Village; Gordon Hall, the director of life skills training at Epworth Village, who provided weekly individual therapy for Jason during his 6-month stay at Epworth Village; Christy Weber, a registered nurse employed at Epworth Village as the director of health care services and admissions coordinator; and Karl Hoehler, a deputy sheriff of Seward County who was involved in the investigation of Jason's allegations.

Williams, Hall, Weber, and Hoehler each testified that during the course of his or her respective professional duties, Jason told him or her that he had been sexually abused by Morris. Williams testified that both Nicole and Jason told her that they had been sexually abused by Morris. Hall testified that Jason had told him that Jason had been sexually abused by Morris. Weber testified that after Jason had reported the sexual abuse to Kroeker, he told Weber about the sexual abuse. Hoehler testified that Jason made detailed statements to him about the sexual abuse during his investigation.

Morris was convicted on all three counts. The Court of Appeals affirmed the convictions and sentences. The court stated that if Tome v. U.S., 513 U.S. 150, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995), controlled ...