State v. Nash, A-18-252.

CourtCourt of Appeals of Nebraska
Docket NumberNo. A-18-252.,A-18-252.
Decision Date02 July 2019


No. A-18-252.


July 2, 2019

(Memorandum Web Opinion)


Appeal from the District Court for Lincoln County: DONALD E. ROWLANDS, Judge. Affirmed.

P. Stephen Potter for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.


BISHOP, Judge.


After a trial in the Lincoln County District Court, a jury found Dennis Nash, Jr., guilty of third degree sexual assault of a child. Nash was sentenced to 3 years' imprisonment and 18 months' postrelease supervision. Nash appeals his conviction, claiming the district court erred by denying an oral motion for a plea in abatement, refusing to order a change in venue due to pretrial publicity, and permitting a witness to testify as an expert. Nash also contends that his sentence is excessive and his trial counsel was ineffective. We affirm.

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In October 2016, the State filed a complaint in the county court for Lincoln County charging Nash with third degree sexual assault of a child, a Class IIIA felony, pursuant to Neb. Rev. Stat. § 28-320.01 (Reissue 2016). The State alleged that Nash, being a person 19 years of age or older, subjected a person 14 years of age or younger to sexual contact on August 2. After a preliminary hearing on November 10, the case was bound over to the district court, and an information was filed similarly charging Nash.

On December 13, 2016, Nash filed in the district court a plea in abatement to the information. Nash alleged there was "a defect in the record" in that the evidence presented at the preliminary hearing was insufficient as a matter of law to establish that the crime of third degree sexual assault of a child was committed and to establish probable cause that Nash committed the crime charged. After a hearing on January 9, 2017, the district court overruled Nash's plea in abatement in an order filed on January 20. Following several continuances, the district court set the matter for jury trial on January 9, 2018.

On January 3, 2018, the State filed a motion to qualify Anne Power as an expert witness regarding the generalities of child sexual abuse. At a hearing the next day, Nash's trial counsel objected to that motion. Power testified about her background; we will set forth those details when addressing Nash's assigned error related to this witness. The district court found that although Power did not have university training in psychology, her experience qualified her to testify as an expert witness "as to sexual abuse in generalities."

Also on January 4, 2018, Nash filed a motion in limine to prohibit the State from attempting to introduce in any manner (1) Nash's "video-taped statement" (he claimed the conversation contained irrelevant and immaterial discussions outside the facts of this case which would be highly prejudicial) and (2) evidence of Nash's prior criminal history beyond that statutorily allowed. At the hearing the same day, the district court took the motion in limine regarding the video under advisement (disposition not in record and video not offered at trial) and sustained the motion regarding Nash's criminal history. Nash then orally moved for a change of venue based on pretrial publicity. In overruling the motion, the district court said jury selection would be the best way to know if there was any extensive publicity that tainted the panel.

The jury was selected on January 9, 2018. Nash renewed his motion to change venue, and the district court again denied it. Nash made a separate oral motion asserting that: he was entitled to a jury of his peers, the jury panel did not include any minorities, and "there is nobody on that panel that may have a prospective [sic] as a minority." The district court noted several Hispanic or Latino individuals who were on the panel, and denied Nash's motion to "[q]uash" the jury as lacking anyone of African-American heritage. Nash orally moved to suppress DNA evidence, but the district court stated Nash did not have standing to assert that motion with reference to examination of "a pair of girl's underwear" and ultimately ruled that Nash was statutorily precluded from raising a later oral motion to suppress evidence at trial.

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Trial began on January 10, 2018. A summary of the evidence relevant to this appeal follows.

(a) State's Evidence
(i) D.D.

D.D. testified she was born in October 2001, and was 16 years old at the time of trial. She had known Nash since 2013, because Nash was dating her mother. D.D. "looked at [Nash] as [her] dad." In the summer of 2016, D.D. moved into a house with her mother, little sister, and Nash. Towards the end of July, Nash made D.D. "uncomfortable" when he "showed up" in her room late one evening and "asked if he could taste [her]"; D.D. thought this meant Nash was asking if he could "lick [her] vagina." D.D. told Nash "no." D.D. said Nash asked her not to tell anyone, she agreed not to tell, and he gave her $100 in exchange. D.D. "avoided" Nash after that.

Shortly thereafter, on August 1, 2016, D.D.'s mother was going to a friend's house that night. D.D. asked her mother to take her with her or for her mother to stay home because D.D. did not want to stay home with Nash. D.D. went with her mother to the friend's house and returned home around 1 a.m. D.D. had been home for about 30 minutes and was in her pajamas (black T-shirt, pink fuzzy pants, and purple and yellow underwear) when Nash came into her room "and acted like he was drinking a little bit." Nash asked D.D. if she wanted to have what he was having and then procured a drink for her. The drink was yellow and tasted like "Sunny D," but with a "stronger taste." She drank the entire glass. Nash wanted to watch a movie in D.D.'s room, to which she responded, "Whatever." Nash put a movie in and D.D. went to sleep. The next thing D.D. remembered was waking up and Nash's head was "moving" between her legs and his tongue was touching her vagina. She did not have on her pants or underwear. D.D. felt "[c]onfused and dizzy" and she "passed out." The next thing she remembered was waking up on the floor with her blanket wrapped around her. Nash was "messing with something on the bed" and told D.D. she needed to put her "'pants back on.'" D.D. was confused and told Nash to leave her room. D.D. got into her bed and "passed out" again. When she woke up, D.D. noticed she did not have any pants or underwear on. She "was confused, and everything started . . . coming back to [her]," and she realized what Nash had done to her. She could not find her underwear, but Nash's underwear was on her floor; she put his underwear in his closet because she "didn't want them in [her] room." D.D. did not tell her mother about the incident right away because she "wanted to be moved out of the house" when she told her mother; D.D., her mother, and her sister were planning on moving out of the home in early August 2016.

D.D. stated that Nash came into her room in the morning and "started talking about [her] permit because [she] was supposed to be turning fifteen." D.D. ignored Nash and he realized she was upset and he "dropped on his knees and told [her] not to tell anyone and told [her] that if [she] was going to tell someone to tell him now because he would just go out and kill himself"; D.D. agreed not to tell anyone. Nash went through D.D.'s computer to make sure she had not told her mother. He noticed that the day before, D.D. had asked her mother for a cat and he said he would buy D.D. a cat; D.D. said "okay." Nash told D.D. that he would go out and get her a cat, but that

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she had to take a shower first; she went ahead and took a shower and then they went to the shelter and got the cat. "Right after" they got the cat, D.D. went to her friend's house and told her friend what had happened to her, and asked her friend not to tell anyone. D.D. stayed at her friend's house until D.D.'s mother got off work. After her mother got home from work and found out about the cat, she agreed that D.D. could keep the cat, but that it would stay at Nash's house while they moved. Nash offered to have a room for D.D. at his house so D.D. could see her sister and the cat.

D.D. testified that on August 4, 2016, the day they were moving out of the home they shared with Nash, she was at her friend's house and texted her mother and told her about Nash's assault and "about everything that happened." Her mother immediately picked her up and they went to the police station and talked with a police officer before going to the Bridge of Hope Child Advocacy Center (Bridge of Hope). At Bridge of Hope they took pictures of D.D., did vaginal swabs, and collected samples of her blood and hair. The sexual assault nurse examiner (SANE) who performed the exam of D.D. at Bridge of Hope testified about the exam. Law enforcement officers gave chain-of-custody testimony regarding the SANE evidence kit. Other law enforcement officers and personnel testified about the sexual assault investigation, including evidence collection; chain-of-custody testimony was also provided by the law enforcement officers and personnel, as well as personnel from the Nebraska State Patrol Crime Lab.

(ii) D.D.'s Mother

D.D.'s mother was asked about the night of August 1, 2016, and the early morning hours of the next day. She acknowledged she went to a friend's house with D.D. and watched a movie. When she and D.D. returned home, D.D.'s mother told Nash she was going to bed; she could tell Nash had been drinking. D.D. went to her room. In the morning, D.D.'s mother saw a text message from D.D. that said "[c]an you help" (D.D.'s mother identified an exhibit as a photograph of that text message...

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