State v. Sanchez-Lahora

• Decision Date: 09 February 2001
• Docket Number: No. S-99-1129.,S-99-1129.
• Parties: STATE of Nebraska, Appellee, v. Orestes SANCHEZ-LAHORA, Appellant.
• Court: Nebraska Supreme Court

622 N.W.2d 612

261 Neb. 192

STATE of Nebraska, Appellee, v. Orestes SANCHEZ-LAHORA, Appellant.

No. S-99-1129.

Supreme Court of Nebraska.

February 9, 2001.

Nicholas D. Valle, of Langvardt & Valle, P.C., Hastings, for appellant.

Don Stenberg, Attorney General, and Martin W. Swanson, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

Appellant, Orestes Sanchez-Lahora, was convicted of first degree sexual assault and terroristic threats. The Nebraska Court of Appeals reversed the judgment and remanded the cause for a new trial because the trial court excluded the evidence of the victim's alleged prior sexual conduct with Sanchez-Lahora. See State v. Sanchez-Lahora, 9 Neb.App. 621, 616 N.W.2d 810 (2000). We granted the State's petition for further review.

The issue presented by this case is the trial court's role under Neb.Rev.Stat. § 28-321 (Reissue 1995), Nebraska's rape shield statute, in determining the admissibility of evidence regarding the victim's alleged prior sexual conduct. The Court of Appeals held that a trial court is to determine only the relevance of the evidence at an in camera hearing under § 28-321 and should leave the issue of credibility for the jury. We agree and accordingly affirm.

ASSIGNMENTS OF ERROR

The State assigns that the Court of Appeals erred in determining that (1) at an in camera hearing, a trial court can determine only the relevance of the evidence presented to the issue of consent and cannot weigh the credibility of the evidence, and (2) evidence presented by Sanchez-Lahora at the in camera hearing was relevant to the issue of consent and tends to establish a pattern of conduct relevant to the issue of consent to the extent that the jury should have been allowed to consider it.

BACKGROUND

The full background of this case can be found in the Court of Appeals' opinion. See State v. Sanchez-Lahora, supra.

We granted Sanchez-Lahora's petition for further review on the sole issue of the admissibility of the victim's alleged prior sexual conduct with Sanchez-Lahora and, therefore, relate only the facts which are pertinent to that issue.

Sanchez-Lahora was convicted by a jury of first degree sexual assault and terroristic threats and was sentenced to consecutive sentences of 10 to 15 years' imprisonment and 1 to 3 years' imprisonment, respectively, for events occurring on or about November 6, 1998. Sanchez-Lahora asked for an in camera hearing and order allowing him to offer evidence at trial of specific instances of the victim's past sexual behavior with him.

At the in camera hearing and after a formal waiver of his right to remain silent, Sanchez-Lahora testified that he had known the victim for 3 to 4 months before November 6, 1998. He stated that during this time, the victim had sexual relations with him approximately eight to nine times at his home and three to four times at motels. He admitted to having sexual intercourse with the victim on November 6, but he claimed that she participated voluntarily.

On cross-examination, the State asked Sanchez-Lahora why he had denied knowing the victim when asked by the police and had admitted knowing the victim only after being informed that the police had obtained a videotape from a convenience store. Sanchez-Lahora spoke little English and explained that he knew the victim by a different version of her name other than the one used by the police investigator during the first interview. He had also asked to see the videotape, but it was not shown to him.

The State also inquired into Sanchez-Lahora's relationship with two witnesses, Scott Kinney and Jamie Sund. Sanchez-Lahora testified that these two men knew of his relationship with the victim. Sanchez-Lahora's counsel objected to the testimony as being beyond the scope of direct examination. The trial court overruled the objection upon the State's explanation that Kinney was "under" Sanchez-Lahora in the distribution of illicit drugs, a hierarchy which the State believed bore on Kinney's credibility and bias. The trial court also allowed the State to ask Sanchez-Lahora if he and Kinney were involved in the distribution of illegal drugs after the State agreed not to use the answer in a prosecution if he admitted to the activity. He then answered that he and Kinney were involved in the distribution of illegal drugs.

Sanchez-Lahora also testified that he told two other witnesses about his sexual relationship with the victim; however, he could not provide information on their whereabouts. He further stated that his neighbor knew of his relationship with the victim, but the neighbor did not testify at the in camera hearing. Kinney testified that he knew Sanchez-Lahora and the victim, but he refused to answer further questions based on his Fifth Amendment right against self-incrimination.

The State requested that Sanchez-Lahora's motion to introduce evidence of his alleged relationship with the victim be denied. The State argued that under State v. Hopkins, 221 Neb. 367, 377 N.W.2d 110 (1985), Sanchez-Lahora had failed to meet his burden in adducing evidence other than his allegation. The court agreed this was the standard and also informed Sanchez Lahora's counsel that if the court found that he had met his burden under Hopkins, then the State would be given an opportunity to present further evidence. The court then ruled in the State's favor, finding that the "defendant did not meet the standard set out in Neb.Rev.Stat. § 28-321(2)(b)." Sanchez-Lahora filed a motion for reconsideration and included an accompanying motion for a grant of immunity to Kinney. A hearing was held on May 21, 1999. In support of his requests, affidavits of Sanchez-Lahora and his counsel were admitted into evidence over the State's objection. His counsel's affidavit stated that he had interviewed Kinney and that Kinney had admitted seeing the victim at Sanchez-Lahora's home on several occasions prior to November 6, 1998, and had observed the victim perform a "striptease" for Sanchez-Lahora. Kinney also stated that the victim was known to exchange sexual favors for controlled substances. Sanchez-Lahora's affidavit stated that he had had sexual relations with the victim, with her consent, before and on November 6. He also stated that before November 6, the victim had requested the same type of sex as that which had occurred on November 6.

The court acknowledged that Sanchez-Lahora's theory of consensual sex permitted the court to admit evidence of the victim's past sexual conduct with him under § 28-321. The court noted, however, that Sanchez-Lahora's affidavit stated only that the consensual relations were similar in nature, without specifying what type of sex was involved. Based upon this finding, the court determined that Sanchez-Lahora had failed to demonstrate that the past activity showed a relation to the conduct involved in the case and tended to establish a pattern of conduct or behavior on the part of the victim as to be relevant to the issue of consent. The court denied both Sanchez-Lahora's motion for witness immunity and his motion to introduce evidence of the victim's past sexual behavior with him.

STANDARD OF REVIEW

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by such rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in the admissibility of evidence. State v. Silvers, 260 Neb. 831, 620 N.W.2d 73 (2000); State v.. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000).

When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000); State v. Hansen, 259 Neb. 764, 612 N.W.2d 477 (2000).

ANALYSIS

Nebraska's rape shield statute, § 28-321(2), governs the admissibility of a victim's past sexual conduct:

Upon motion to the court by either party in a prosecution in a case of sexual assault, an in camera hearing shall be conducted in the presence of the judge, under guidelines established by the judge, to determine the relevance of evidence of the victim's or the defendant's past sexual behavior. Evidence of a victim's past sexual behavior shall not be admissible unless such evidence is: ... (b) evidence of past sexual behavior with the defendant when such evidence is offered by the defendant on the issue of whether the victim consented to the sexual behavior upon which the sexual assault is alleged if it is first established to the court that such activity shows such a relation to the conduct involved in the case and tends to establish a pattern of conduct or behavior on the part of the victim as to be relevant to the issue of consent.

The Court of Appeals stated that the only issue on the admissibility of the claimed prior sexual conduct was whether the evidence tended to establish a pattern of conduct or behavior of the victim relevant to the issue of consent. State v. Sanchez-Lahora, 9 Neb.App. 621, 616 N.W.2d 810 (2000). The court then concluded that any evidence of the victim's past consensual sexual relations with Sanchez-Lahora, if believed, would be relevant. The court framed the issue as whether the trial court can weigh the credibility of evidence presented at the in camera hearing or is limited to determining the relevance of the evidence to the issue of consent. Id.

In State v. Hopkins, 221 Neb. 367, 377 N.W.2d 110 (1985), we set out the general guidelines for admitting evidence of the victim's past sexual conduct under § 28-321 when the defendant's affirmative defense is the victim's consent to the prosecuted act. The trial court must make three determinations before admitting the evidence of past sexual relations: (1) whether the proffered evidence tends to prove the defendant's claim that the victim consented to the sexual act...