State v. Schenck
| Decision Date | 11 April 1986 |
| Docket Number | No. 85-603,85-603 |
| Citation | 384 N.W.2d 642,222 Neb. 523 |
| Parties | STATE of Nebraska, Appellee, v. Daniel J. SCHENCK, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Sexual Assault: Evidence. Nebraska's rape shield law, Neb.Rev.Stat. § 28-321 (Cum.Supp.1984), which generally excludes evidence in the form of details of the victim's prior sexual conduct, does not prevent defendants from presenting relevant evidence in their own defense. It merely denies a defendant the opportunity to harass and humiliate the complainant at trial and divert the attention of the jury to issues not relevant to the controversy. A defendant has no constitutional right to inquire into irrelevant matters.
2. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.
3. Criminal Law: Prior Statements. Although prior contradictory statements made by the prosecutrix may cause the jury to doubt the account of facts testified to by her at trial, generally such prior statements do not negate, erase, or eradicate the evidence that a certain fact exists.
4. Criminal Law: Verdicts: Appeal and Error. After a jury has considered all of the evidence and returned a verdict of guilty, that verdict may not, as a matter of law, be set aside on appeal for insufficiency of evidence if the evidence sustained some rational theory of guilt.
5. Trial: Evidence: Expert Witnesses. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
6. Trial: Expert Witnesses. It is for the trial court to make the initial decision on whether the testimony of an expert will assist the trier of fact. The soundness of its determination depends upon the qualification of the witness, the nature of the issue on which the opinion is sought, the foundation laid, and the particular facts of the case.
7. Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
8. Evidence. The determination of the admissibility of evidence generally rests within the sound discretion of the trial court.
9. Sentences: Appeal and Error. When the punishment of an offense created by statute is left to the discretion of the trial court, to be exercised within certain prescribed limits, a sentence imposed within those limits will not be disturbed on appeal unless the record reveals an abuse of discretion.
James R. Wefso, Rushville, for appellant.
Robert M. Spire, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee.
Daniel J. Schenck appeals his conviction by jury for first degree sexual assault. Schenck was sentenced to 5 to 15 years' imprisonment. We affirm the trial court proceedings.
The prosecutor offered evidence of the following events. The victim, L.H., met Schenck in a Hay Springs bar on Friday, March 1, 1985. In the course of the evening they discovered that they shared the same birthday (March 3), so L.H. invited Schenck to celebrate with her and her friends at another Hay Springs bar on Saturday night. Schenck did not join them.
On her birthday, Sunday, March 3, 1985, L.H. spent the evening in her home in Hay Springs, reading a book. At about 1 a.m., March 4, L.H. got up from the living room couch, preparing to go to bed, unlocked the front door to let her dog out, and went into the bathroom to brush her teeth. When the dog started to bark, L.H. came out of the bathroom and saw Schenck coming through her front door. Schenck said he had heard there was a party at her house, and L.H. responded that there was not and that she did not appreciate visitors at that hour of the night. It had been snowing heavily that evening, so L.H. consented when Schenck asked if he could stay a few minutes to warm up.
Schenck initiated a rambling and repetitive conversation, during which L.H. repeatedly asked Schenck to leave. L.H. finally got angry, handed Schenck his coat, and ordered him to leave.
As L.H. opened the front door, her dog ran out, and Schenck slammed the door behind it. He grabbed L.H. by the waist, pulling her away from the door. The two struggled for quite some time, with L.H. escaping Schenck's grasp, only to be caught and dragged by the wrists and upper arms into the bedroom time and again. Schenck ripped open L.H.'s blouse and pulled her bra up around her neck. Her threats to identify him to the police were of no avail.
L.H. was becoming exhausted, and she realized that the more she struggled the more violent Schenck became. Pinned on the bed, L.H. told Schenck that she would stop struggling if he would stop hurting her. Schenck agreed, as long as she promised to do everything he ordered.
Hoping to delay or escape her attacker, L.H. asked to go to the bathroom for some lotion to prevent her injury. Schenck allowed her to enter the bathroom but held onto her arm constantly. When they returned to the bedroom, Schenck penetrated L.H. Failing to ejaculate, Schenck stopped, asked L.H. to "participate," and talked at length about his deep feelings for her and his bewilderment as to how to approach her.
L.H. tried to convince Schenck to leave, and at one point sat up to go to the bathroom, only to be pushed back down. Finally, she admitted to Schenck that she was afraid if he did not leave, she would not be alive in the morning. At that point Schenck penetrated L.H. again, but again failed to ejaculate. When Schenck rolled to one side of the bed, L.H. asked to go to the bathroom and Schenck murmured "huh-uh."
As L.H. left the bedroom, she grabbed a nightgown that was among the clean laundry that had been thrown off the bed during the struggle. She ran out the front door naked, and put the nightgown on en route to her best friend's house. L.H. ran the 2 1/2 blocks barefoot in the snow, arriving at her friend's house at 3:30 a.m. L.H told her friend that Schenck had raped her, and the friend called the police. L.H. was still sobbing and crying when the deputy sheriffs arrived at 4 a.m. Because she was so upset, it was difficult for L.H. to respond to the deputies' questions.
Between 6 and 6:30, the deputies took L.H. to the Rushville Hospital. At the hospital, Dr. Pearl Narvaez, who did not testify at trial, examined L.H. Although there is no evidence that the doctor observed bruises on L.H.'s arms, there is also no evidence that she did not. The attending nurse was busy marking specimens during the examination, but did testify that she noticed an abrasion on L.H.'s left wrist.
After the examination Deputy Puchner took L.H. to the sheriff's office to take her statement. At that time L.H. showed the deputy the bruises on her upper arms.
On March 18 L.H. was examined by Dr. Margaret Stockwell, who testified at trial. She testified that bruises are usually caused by blunt trauma and often take time to develop. They may not be observable until a half day or a day after the trauma occurred. Bruises last variable lengths of time and change color over time; green and yellow being latter stages. Dr. Stockwell testified that it was possible for blunt trauma suffered on March 4 to cause bruises which would still be visible on March 18, and would probably be yellow or green in color. She also testified that on March 18 L.H. had yellow and green bruises of various sizes on her arms and one on her leg, along with scratch marks of the same age. These bruises were consistent with L.H.'s complaint of Schenck's squeezing and pulling her arms.
After the March 18 examination photographs of L.H.'s bruised upper arms were taken at the sheriff's office. These were offered as exhibits 8 and 9 at trial and were identified by L.H. Also exhibited at trial were photographs of L.H.'s disheveled bedroom, a stained nightgown, and L.H.'s blouse with all but one button torn off.
Schenck testified that he and L.H. engaged in consensual sexual intercourse on March 4, 1985. However, when he testified that he had not seen L.H. in a police cruiser after the alleged sexual assault, Schenck was very effectively impeached for credibility. He admitted that in one of his first interrogations he told an officer that he thought he saw a "cop car" in Hay Springs with L.H. inside and that "kind of paranoid me out," so he went to a friend's house in Alliance.
In his assignments of error Schenck argues that the district court erred in (1) denying his motion to declare the rape shield law, Neb.Rev.Stat. § 28-321 (Cum.Supp.1984), unconstitutional; (2) finding sufficient evidence to convict; (3) admitting Dr. Stockwell's expert testimony on bruises; (4) admitting the photographs of bruises without proper foundation; (5) admitting L.H.'s testimony stating her weight at the time of the incident and at the time of trial; (6) denying Schenck's motion to dismiss at the conclusion of the State's evidence; (7) denying Schenck's motion for new trial; and (8) imposing an excessive sentence.
In support of his first assignment of error, challenging the constitutionality of Nebraska's rape shield law, Schenck argues that the statute deprives him of due process by preventing him from presenting evidence in his own defense. He is willing to concede that in many sexual assault ...
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