State v. Roenfeldt, S-91-340

• Decision Date: 10 July 1992
• Docket Number: No. S-91-340,S-91-340
• Citation: 241 Neb. 30,486 N.W.2d 197
• Parties: STATE of Nebraska, Appellee, v. Bradley S. ROENFELDT, Appellant.
• Court: Nebraska Supreme Court

Page 197

486 N.W.2d 197

241 Neb. 30

STATE of Nebraska, Appellee, v. Bradley S. ROENFELDT, Appellant.

No. S-91-340.

Supreme Court of Nebraska.

July 10, 1992.

Syllabus by the Court

1. Trial: Pretrial Procedure: Appeal and Error. Unless granted as a matter of right under the Constitution or other law, discovery is within the discretion of a trial court, whose ruling will be upheld on appeal unless the trial court has abused its discretion in the discovery ruling.

2. Trial: Minors: Witnesses. While no certain age has been deemed to be the age at which a child becomes competent to testify in a court of law, the court generally takes into consideration whether she is able to receive correct impressions by the senses, to recollect accurately, and to appreciate the moral duty to tell the truth.

3. Trial: Minors: Witnesses: Appeal and Error. The question of competency of a child witness lies within the discretion of the trial court, and that determination will not be disturbed in the absence of an abuse of discretion.

4. Trial: Expert Witnesses: Sexual Misconduct: Minors: Jurors. An expert may testify about sexual abuse in generalities, without being familiar with the alleged victim, because few jurors have sufficient familiarity with child sexual abuse to understand the dynamics of a sexually abusive relationship, and the behavior exhibited by sexually abused children is often contrary to what most adults would expect.

Mark A. Johnson of The Law Offices of Mark A. Johnson, Norfolk, for appellant.

Don Stenberg, Atty. Gen., William L. Howland, Lincoln, and, on brief, Mark L. Ells, for appellee.

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

STATEMENT OF THE CASE

WHITE, Justice.

Bradley S. Roenfeldt appeals his jury conviction of one count of first degree sexual assault, a Class II felony in violation of Neb.Rev.Stat. § 28-319 (Reissue 1989), and the resulting sentence of 10 to 25 years' imprisonment. First degree sexual assault is punishable by 1 to 50 years' imprisonment.

FACTS

B.W., a 10-year-old female, made complaint of inappropriate sexual contact to a police officer on July 31, 1990, and to her family physician on August 2. The person alleged to have committed the improper acts was the appellant, Roenfeldt. Roenfeldt was questioned by the police officer and, while admitting a number of inappropriate sexual experiences with B.W., claimed that he did not remember the claimed incidents of first degree sexual assault.

B.W. told the physician and Detective Steven Hecker of a number of incidents of fellatio (oral stimulation of the penis), at least one of which was of recent origin. On November 3, 1990, B.W. was deposed by Roenfeldt's counsel. A number of statements were made by her relating to the approximate time of the last incident, and a number of collateral matters were not consistent with her testimony at trial or her conversation with Hecker and her physician, Dr. Richard Votta.

At trial, B.W. testified that the last assault came after she was released from the University of Nebraska Hospital about a week prior to Detective Hecker's interview. She testified that this occurred after completing her fourth grade education. At the deposition, B.W. testified that the last incident occurred in her third grade year. In the physical exam, redness of the labia and vagina were noted, indicating sexual touching but not indicating sexual penetration of the vagina or anus.

In an attempt to rehabilitate B.W.'s testimony, Hecker was asked to recite the substance of the entire conversation with B.W. Over objection, Hecker testified that B.W. told him that while she was performing fellatio on Roenfeldt he told her "not to use her teeth too much," and that "there were times that he would have his penis in my mouth" so far she would gag.

Appellant questions, but presented no evidence on, B.W.'s ability to accurately testify, because one doctor had labeled her as having borderline intellectual function and because the child had seen adult videotapes and had seen her mother and appellant engage in sexual activity. The trial court overruled appellant's motion for a court-compelled psychiatric examination of B.W.

Appellant also sought to depose a school principal regarding an incident surrounding a missing watch; however, the court held it to be a collateral issue and improper to attack a witness' credibility with specific instances of dishonesty.

Finally, appellant filed an amended motion in limine, seeking to prohibit several witnesses from testifying as to B.W.'s comments to them regarding "a particular matter." The court found that at least some of the proposed testimony was corroborative and that the statements by B.W. had been for the purpose of a medical history and, accordingly, overruled the motion in its entirety.

ASSIGNMENTS OF ERROR

Summarily, Roenfeldt alleges that the district court erred in (1) denying appellant's motion to have the alleged victim examined by a court-appointed psychiatrist in order to determine her mental competency, in violation of his right to due process under the state and federal Constitutions; (2) determining that the alleged victim was a competent witness to testify at trial in this matter; (3) overruling appellant's hearsay objection and allowing a detective to testify on direct examination as to what the alleged victim had said to him in his interview with her; (4) allowing the alleged victim's examining doctor to testify as to what she may have told him during the examination, as not falling within the hearsay exception; (5) allowing evidence of the alleged victim's discharge summary date from the University of Nebraska Hospital as a Neb.Rev.Stat. § 27-803(3) (Reissue 1989) exception; (6) overruling appellant's hearsay objection and allowing testimony of a third party as to what the alleged victim had related to her regarding appellant's assaults on her; (7) failing to allow appellant to depose the principal of the alleged victim's grade school and failing to allow discovery of documents of an exculpatory nature regarding the alleged victim; (8) allowing an expert witness' testimony regarding exhibited symptoms of children who have been sexually abused; and (9) imposing an excessive sentence.

DISCUSSION

In determining whether evidence is sufficient to sustain a conviction in a jury trial, the Supreme Court does not resolve conflicts in the evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury, which are within the jury's province for disposition. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. State v. Brown, 225 Neb. 418, 405 N.W.2d 600 (1987); State v. Zitterkopf, 236 Neb. 743, 463 N.W.2d 616 (1990); State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

On a claim of insufficiency of evidence, the Supreme Court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may the Supreme Court set aside a guilty verdict as unsupported by the evidence beyond a reasonable doubt. State v. Robertson, 223 Neb. 825, 394 N.W.2d 635 (1986); State v. Zitterkopf, supra; State v. Reynolds, supra.

FAILURE TO COMPEL VICTIM'S PSYCHIATRIC EXAMINATION

A defendant in a criminal proceeding has no general due process right to discovery. State v. Tuttle, 238 Neb. 827, 472 N.W.2d 712 (1991); Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); State v. Blair, 230 Neb. 775, 433 N.W.2d 518 (1988). Unless granted as a matter of right under the Constitution or other law, discovery is within the discretion of a trial court, whose ruling will be upheld on appeal unless the trial court has abused its discretion in the discovery ruling. See, State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Blair, supra; State v. Tuttle, supra.

The granting of a request for a psychiatric evaluation of the victim falls within the discretionary power of the trial court. State v. Nelson, 235 Neb. 15, 453 N.W.2d 454 (1990). The purpose of a psychiatric examination in a case involving a sexual 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. Id. If the victim in this case were of a more mature age, compelling a psychiatric examination, though still discretionary, would have been appropriate. The tender years and limitations of B.W., in conjunction with her previous examinations by medical and psychological professionals, and her courtroom testimony all were deemed sufficient by the trial judge for the jury to assess the child's credibility as a witness. We agree. The assignment is without merit.

DETERMINATION OF VICTIM'S COMPETENCY TO TESTIFY

While no certain age has been deemed to be the age at which a child becomes competent to testify in a court of law, the court generally takes into consideration whether she is able to receive correct impressions by the senses, to recollect accurately, and to appreciate the moral duty to tell the truth. See, In re Interest of M.L.S., 234 Neb. 570, 452 N.W.2d 39 (1990); State v. Guy, 227 Neb. 610, 419 N.W.2d 152 (1988). The question of competency of a child witness lies within the discretion of the trial court, and that determination will not be disturbed in the absence of an abuse of discretion. In re Interest of M.L.S., supra; State v. Guy supra; State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).

We find no abuse of discretion in the court's determination that the child was a competent witness. The record is clear that B.W. was able to receive correct sensory impressions, recollect accurately, and appreciate the moral duty to tell the truth.

While the effect of the alleged assault on her mental...