State v. Red Kettle, 90-432

• Decision Date: 25 October 1991
• Docket Number: No. 90-432,90-432
• Citation: 476 N.W.2d 220,239 Neb. 317
• Parties: STATE of Nebraska, Appellee, v. Byron K. RED KETTLE, Appellant.
• Court: Nebraska Supreme Court

Page 220

476 N.W.2d 220

239 Neb. 317

STATE of Nebraska, Appellee, v. Byron K. RED KETTLE, Appellant.

No. 90-432.

Supreme Court of Nebraska.

Oct. 25, 1991.

Syllabus by the Court

1. Venue: Appeal and Error. A motion to change venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed unless there has been an abuse of that discretion.

2. Venue. The factors to be evaluated in determining whether a change of venue is required because of pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in selection of the jury, the number of challenges exercised during the voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn.

3. Trial: Waiver. Failure to assert a timely objection at the time of trial constitutes a waiver of the objection.

4. Appeal and Error: Words and Phrases. Plain error is error which was not preserved at trial, but is plainly evident from the record, which prejudicially affects a litigant's substantial right and is of such a nature that to leave it uncorrected would cause a miscarriage of justice.

5. Trial: Judges. A judge should not initiate, invite, or consider an ex parte communication concerning a pending case.

6. Convictions: Appeal and Error. A conviction will not be set aside in the absence of a showing that an error prejudiced the defendant.

7. Appeal and Error. A defendant cannot complain of error which he invited the court to commit.

8. Trial: Due Process. The general rule is that an accused has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.

9. Trial: Evidence: Photographs: Appeal and Error. Photographs are admissible in evidence if shown to be true and correct representations of the places or subjects they purport to represent at times pertinent to the inquiry. Their admission is largely within the discretion of the trial court, and unless an abuse of discretion is shown, error may not be predicated thereon.

10. Trial: Courts. Trial courts should refrain from commenting on evidence or making remarks prejudicial to a litigant or calculated to influence the minds of the jury.

11. Criminal Law: Jurisdiction. When some requisite elements of a crime are committed outside Nebraska, but an essential element of the crime is committed or occurs in Nebraska, a Nebraska court has subject matter jurisdiction for prosecution of a defendant charged with the crime.

12. Sexual Assault: Proof. In a sexual assault case, where resistance would obviously be useless, futile, or foolhardy, it is wholly unrealistic to require affirmative direct demonstration of the utmost physical resistance as proof of the victim's opposition and lack of consent.

13. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal unless there is an abuse of discretion.

14. Sentences. It is within the discretion of the district court to direct that sentences imposed for separate crimes be served consecutively.

James R. Wefso, of Crites, Shaffer, Connealy, Watson & Wefso, for appellant.

Robert M. Spire, Atty. Gen., Sharon M. Lindgren, and, on brief, Steven J. Moeller, for appellee.

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

GRANT, Justice.

In Sheridan County, Nebraska, defendant Byron K. Red Kettle was charged with the following felonies: count I, first degree sexual assault; count II, operating a motor vehicle to avoid arrest; and count III, receiving or retaining stolen property. After a jury trial, defendant was convicted on all three counts. It was determined that defendant was not a mentally disordered sex offender, and he was sentenced on count I to "not less than 15 years nor more than 25 years, to be served consecutively with any Federal or South Dakota State sentence now being served," and on counts II and III to 1 to 3 years each, consecutive to count I and concurrent with each other. Defendant timely appealed.

In this court, defendant assigns as error the actions of the trial court in (1) denying defendant's motion for change of venue, (2) talking privately with defendant off the record before the trial, (3) allowing defendant to waive his own presence at trial, (4) allowing a witness to identify defendant without the defendant's being present at trial, (5) participating in questioning of the State's primary witness, (6) allowing into evidence acts of defendant which occurred outside Nebraska, (7) determining that the evidence was sufficient to support convictions on counts I and III, and (8) imposing excessive sentences. We affirm.

In our review we are obligated to view the evidence in the light most favorable to the prevailing party, which in this case is the State. See State v. Walker, 225 Neb. 794, 408 N.W.2d 294 (1987). So viewed, the evidence established the following facts: On September 30, 1987, defendant entered a ConoMart convenience store near Box Elder, South Dakota, at approximately 3 a.m. He held a knife to the throat of the victim, who was a clerk at the store; took money from the cash register; and then took the victim with him and drove away in her car. He drove through Pennington County, South Dakota, where, at some point, defendant pulled off the road and told the victim to take her sweater off. She refused, and he grabbed her by the jawbone and squeezed; he then told her if she did not cooperate it would not bother him to kill her. She complied. Defendant then grabbed the front of her bra and tore it in two. No further testimony was received regarding events in South Dakota.

Defendant drove across the Pine Ridge Indian Reservation and headed further south, into Sheridan County, Nebraska, where he eventually stopped at a grove of trees near a country road. At this point, the victim did not know where they were. Defendant and the victim got out of the car, walked around, and returned to the car. Defendant opened the trunk, took out a mat, and laid it on the ground. He told the victim to take her clothes off, which she did, and defendant had sexual intercourse with her.

At some point later, the victim asked defendant if she could "go to the bathroom." She then ran away to a nearby farmhouse. No one was at the house and the victim entered. She contacted the county sheriff's office by telephone. The sheriff was sent in the general direction of the farm, as determined by the telephone number, since the victim did not know her location. The dispatchers determined the location of the farmhouse and radioed the sheriff, who drove to the farmhouse and picked up the victim. As the sheriff was driving out of the farmyard, defendant drove up in the victim's car. Defendant then drove away at a high rate of speed, pursued by several officers, and was eventually taken into custody in northern Sheridan County after defendant drove through a roadblock and blew out a tire on the car he was driving.

Defendant first contends that the trial court erred in failing to grant his motion for change of venue, filed November 28, 1989. As stated above, the incidents forming the basis for the information occurred on September 30, 1987, and the information was filed on November 6, 1989. Defendant's motion was argued to the court on March 27, 1990. One exhibit was submitted by defendant at this hearing. That exhibit consisted of 12 newspaper articles from the Rapid City (South Dakota) Journal. Two of the articles appeared in the newspaper shortly after the incident, six appeared in October 1987, and four appeared in 1988, with the most recent article appearing in September 1988.

No evidence as to the circulation of the Rapid City Journal in Sheridan County was presented, nor was any evidence presented that any person in Sheridan County read the Rapid City Journal.

The trial court did not rule on the motion immediately, but stated,

We will wait until jury selection, and see if we can get an impartial jury. If the panel has been tainted by the newspaper publicity, or in any other way, then we won't be able to select a fair and impartial jury and the Motion for Change of Venue will be granted.

On April 9, 1990, a jury panel of 27 was passed for cause, after 4 prospective jurors were excused because they stated they had formed an opinion on the case. The trial court permitted individual voir dire of the members of the panel, and a jury was selected. Defendant renewed his motion for change of venue and that motion was denied. The trial was on April 11, 1990, and the guilty verdicts were returned that same day.

The law with regard to changes of venue is well settled. A motion to change venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed unless there has been an abuse of that discretion. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987); State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987).

In Bird Head, supra, 225 Neb. at 830-31, 408 N.W.2d at 316, we stated:

The factors to be evaluated in determining whether a change of venue is required because of pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in selection of the jury, the number of challenges exercised during the voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn.

No...