State v. Nelson, 89-214

• Decision Date: 06 April 1990
• Docket Number: No. 89-214,89-214
• Citation: 235 Neb. 15,453 N.W.2d 454
• Parties: STATE of Nebraska, Appellee, v. Joseph L. NELSON, Appellant.
• Court: Nebraska Supreme Court

Page 454

453 N.W.2d 454

235 Neb. 15

STATE of Nebraska, Appellee, v. Joseph L. NELSON, Appellant.

No. 89-214.

Supreme Court of Nebraska.

April 6, 1990.

Syllabus by the Court

1. Trial: Pleadings: Evidence: Appeal and Error. When a court overrules a motion in limine to exclude evidence, the movant must object when the particular evidence, previously sought to be excluded by the motion, is offered during trial and cannot predicate error on the admission of evidence to which no objection was made when it was offered.

2. Pleadings: Appeal and Error. The denial of a motion in limine does not in itself constitute reversible error.

3. Trial: Mental Competency. The granting of a request for a psychiatric evaluation of the victim falls within the discretionary power of the trial court.

4. Sexual Assault: Mental Competency: Witnesses. The purpose of a psychiatric examination in a case involving a sex offense is to detect any mental or moral delusions or tendencies causing distortion of the imagination which would affect the probable credibility of the complaining witness.

5. Trial: Evidence: Appeal and Error. Generally, it is within the trial court's discretion to admit or exclude evidence on the basis of relevancy, and such rulings will be upheld on appeal absent an abuse of discretion.

6. Sentences: Appeal and Error. A sentence within statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.

7. Sentences. As a general rule, it is within the discretion of the trial court to direct that sentences imposed for separate crimes be served consecutively.

8. Sentences. The test of whether consecutive sentences may be imposed under two or more counts charging separate offenses, arising out of the same transaction or the same chain of events, is whether the offense charged in one count involves any different elements than an offense charged in another count.

9. Sentences. In imposing a sentence a trial court should consider inter alia the defendant's age, mentality, education, experience, and social or cultural background, as well as his past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence in the commission of the crime.

10. Sentences. The seriousness of the offense is an important factor in the setting of a sentence, and evidence as to a defendant's life, character, or previous conduct is highly relevant to the determination of a proper sentence.

Gerard A. Piccolo, Deputy Hall County Public Defender, for appellant.

Robert M. Spire, Atty. Gen., Jill Gradwohl Schroeder, Lincoln, and, on brief, Susan M. Ugai, North Platte, for appellee.

HASTINGS, C.J. and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

Following a jury trial in the district court, the defendant was found guilty of first degree sexual assault and kidnapping. After the trial court determined that he was not a mentally disordered sex offender, defendant was sentenced to imprisonment for 15 to 25 years for the sexual assault and to a consecutive term of 15 to 25 years for the kidnapping. Both of these crimes are Class II felonies, providing for sentences of 1 to 50 years.

The defendant assigns as error (1) the admission of evidence concerning a prior bad act of the defendant, (2) the denial of defendant's request for a psychiatric examination of the victim, (3) the exclusion of evidence of a specific instance of the victim's past sexual behavior, and (4) the excessiveness of the sentences. We affirm.

On March 6, 1988, defendant and several of his friends went to Max Magruder's, a restaurant and bar located in the Conestoga Mall in Grand Island. The defendant testified that two women customers, for whom he ordered several drinks throughout the evening, joined them at their table. He himself had approximately six drinks during the course of the evening. Later in the evening, he and one of the two women, who he said was definitely intoxicated, went for a walk in the mall area. When he came back to the table, he noticed that his keys were missing. A short time later, he and this same woman went to the restroom. He said he had his arm around her and then asked her if she had his keys. He said he grabbed her by the arm and said he would like to have his keys back. She started to cry, so, he said, he let her go. He denied that he ever took her into the men's restroom.

A short time later, the defendant saw the victim, who was a waitress at Magruder's, walk out the door. According to his testimony, he followed her out and was going to ask her for a ride. The defendant claims that he got into her car on the passenger's side, that they started kissing and petting, and that she told him she knew a place in the country where they could park. His testimony indicates that the two of them engaged in sexual relations which were voluntary on the part of both of them and that the victim then drove the defendant back to town. Shortly thereafter, he was confronted by a police officer.

According to the victim, as she was getting into her car she saw the defendant running toward her car. She got in the car, and eventually the defendant forced his way into the driver's side of her automobile and commenced to drive off. She tried to escape once by opening the passenger door, but the defendant reached over and pulled her back. He forcibly held onto her with one hand. During the time that they were driving, the defendant forced the victim to perform several sexual acts. He did this by threatening to "bash in [her] brains."

The victim testified that when they arrived at a spot in the country where there was a driveway, the defendant proceeded to assault her with his fingers, his mouth, and his penis. The defendant then told the victim to put her clothes back on, and he drove them back to town, he got out of her car, and the victim drove home.

Both of the victim's parents testified that she told them she had been raped. The police were called, and the victim's mother went with her to the hospital.

The woman for whom the defendant had been buying drinks earlier in the evening, and with whom the defendant said he walked around the mall and later toward the restrooms, testified. She told how during the course of this evening on which the alleged assault took place, she was followed to the restroom by the defendant. According to her, the defendant grabbed her hand, took her into the men's restroom and held her while he used the toilet. He then unzipped her jeans, but when she continued crying he let her go.

The physician director of the St. Francis Medical Center emergency department testified. He related the history given him by the victim, which agreed generally with her testimony. As a result of his examination, he found scratches on the back of her left calf and on her back and an abraded area on the perineum from which serum was seeping. He was unable to find any evidence of sperm in the vagina.

The victim's personal physician examined her on March 7, 1988. He testified over objection that the victim told him that she "had been raped the night before." The physician's examination revealed a tender bruised area on the left shoulder near the neck and a bruised area over the right perineal region, the right side of the crotch. He continued to testify that other than the fact that she was somewhat upset, other findings were negative, although she complained of a sore tailbone. The doctor testified that he could not tell when the trauma occurred that caused the bruising, but did say that his impression was that it was not more than 2 days earlier.

The basis for defendant's request for a psychiatric examination of the victim, which was denied, was an affidavit that a coworker of the victim's would testify that within a week after the alleged assault the victim had told her that following the incident, the victim was left out in the country and her car was found in town. Defendant's counsel argued that this is inconsistent with prior statements of the victim to law enforcement officials and her deposition and preliminary hearing testimony and that based on these inconsistent stories, he believes the victim has emotional problems and disorders and that she had fabricated her entire story.

The issue as to the victim's prior sexual activity arose as the result of a deposition of one of the victim's examining physicians. During that examination, she admitted having had sexual intercourse 3 days prior to the alleged assault. Because neither of the examining physicians could determine exactly when the victim's injuries occurred, it is defendant's position that the injuries could have resulted from the admitted sexual intercourse and that the assault did not happen.

Prior to trial, the defendant filed a motion pursuant to Neb.Rev.Stat. § 28-321 (Reissue 1989) to introduce evidence of this past sexual behavior. This motion was denied. During the course of the trial, defendant requested permission to make an offer of proof with regard to his earlier motion concerning the relevancy of the prior sexual acts of the alleged victim. The offer of proof was denied.

Defendant's complaints concerning the admission of evidence of a prior bad act by him related to his experience with the woman in or near the restrooms when, she testified, he unzipped her jeans. However, we do not reach that assignment of error because of the failure of the defendant's counsel to interpose an objection when the evidence was offered.

When a court overrules a motion in limine to exclude evidence, the movant must object when the particular evidence, previously sought to be excluded by the motion, is offered during trial and cannot predicate error on the admission of evidence to which no objection was made when it was offered. State v. Cox, 231 Neb. 495, 437 N.W.2d 134 (1989). As stated by this court in State v. Tomrdle, 214 Neb. 580, 585, 335 N.W.2d 279, 283...