State v. Schmidt

• Decision Date: 03 June 2008
• Docket Number: No. A-07-556.,A-07-556.
• Citation: 750 N.W.2d 390,16 Neb. App. 741
• Parties: STATE of Nebraska, appellee, v. Roger K. SCHMIDT, Sr., appellant.
• Court: Nebraska Court of Appeals

750 N.W.2d 390

16 Neb. App. 741

STATE of Nebraska, appellee, v. Roger K. SCHMIDT, Sr., appellant.

No. A-07-556.

Court of Appeals of Nebraska.

June 3, 2008.

James R. Mowbray and Kelly S. Breen, of Commission on Public Advocacy, Lincoln, for appellant.

Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.

SIEVERS, MOORE, and CASSEL, Judges.

MOORE, Judge.

INTRODUCTION

Roger K. Schmidt, Sr., appeals from his convictions following a jury trial in the district court for Jefferson County of one count of first degree sexual assault on a child and four counts of sexual assault of a child. On appeal, Roger raises issues relating to the court's rulings on the State's motion in limine and on the State's objection to certain cross-examination questioning, a particular jury instruction, and the admission of certain statements Schmidt made to a police officer. For the reasons set forth herein, we affirm.

BACKGROUND

On May 16, 2006, Schmidt was charged with two counts of first degree sexual assault on a child in violation of Neb.Rev. Stat. § 28-3190(1)(c) (Reissue 1995), a Class II felony, and five counts of sexual assault of a child in violation of Neb.Rev. Stat. § 28-320.01 (Cum.Supp.2004), a Class IIIA felony. The alleged victims were M.C., R.S., and K.S.

On September 7, 2006, Schmidt filed a motion to suppress statements he had made. On October 18, the district court entered an order overruling Schmidt's motion concerning statements stemming from interrogations that occurred on April 27 but sustaining his motion as to an interrogation that occurred on May 1. On March 9, 2007, the district court entered an order ruling on the parties' pretrial motions in limine, in particular sustaining the State's motion in limine. We have set forth additional details of the pretrial proceedings in the analysis section below.

A jury trial was held March 12 through 14, 2007, and on March 14, the jury returned a verdict finding Schmidt guilty of one count of first degree sexual assault on a child and of four counts of sexual assault of a child and not guilty of the remaining two counts. Because of the limited nature of the assignments of error on appeal, we only set forth the portions of the trial testimony as necessary to our resolution of this appeal in the analysis section below.

On May 18, 2007, the district court entered an order sentencing Schmidt to imprisonment for a period of 18 to 25 years on the first degree sexual assault on a child conviction and a period of not less than 5 years nor more than 5 years on each conviction for sexual assault of a child. The court ordered Schmidt's sentences to run consecutively. Schmidt subsequently perfected his appeal to this court.

ASSIGNMENTS OF ERROR

Schmidt asserts that the district court erred in (1) sustaining the State's motion in limine, (2) sustaining the State's objection to certain cross-examination questioning of a witness regarding an unfounded allegation, (3) submitting jury instruction No. 14, and (4) admitting Schmidt's statements to a police officer.

STANDARD OF REVIEW

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007). The exercise of judicial discretion is implicit in determinations of relevancy under Neb. Evid. R. 401, Neb. Rev.Stat. § 27-401 (Reissue 1995), and prejudice under Neb. Evid. R. 403, Neb. Rev.Stat. § 27-403 (Reissue 1995), and a trial court's decision regarding them will not be reversed absent an abuse of discretion. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), cert. denied sub nom. Sommer v. Nebraska, ___ U.S. ___ 128 S.Ct. 186, 169 L.Ed.2d 126. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).

An appellate court reviews de novo a trial court's determination of the protections afforded by the Confrontation Clause and reviews the underlying factual determinations for clear error. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

Whether jury instructions given by a trial court are correct is a question of law. State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007). 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. Id.

Whether a defendant's statements resulted from an officer's promise is a question of fact. State v. Ray, 241 Neb. 551, 489 N.W.2d 558 (1992). An appellate court will uphold the trial court's ruling on a motion to suppress unless the trial court's findings of fact are clearly erroneous. State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006). In making this determination, the appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and considers the trial court observed the witnesses testifying in regard to such motions. Id. A district court's finding and determination that a defendant's statement was voluntarily made will not be set aside on appeal unless this determination is clearly erroneous. State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).

ANALYSIS

Motion in Limine.

Schmidt asserts that the district court erred in sustaining the State's motion in limine, arguing the court's ruling prevented him from presenting relevant evidence that M.C. and K.S. both had previously reported allegations of sexual abuse by other perpetrators and that by experience, both were aware of the propriety of reporting "`bad touches'" and the protections afforded by their parents, police, and counselors. Brief for appellant at 12. Schmidt argues that he was denied his constitutional rights to confrontation and compulsory process to answer and rebut evidence presented by the State to explain why M.C. and K.S. did not promptly report Schmidt's alleged abuse and why K.S. repeatedly denied her father's allegations against Schmidt.

A motion in limine is but a procedural step to prevent prejudicial evidence from reaching the jury. State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002). It is not the office of such a motion to obtain a final ruling upon the ultimate admissibility of the evidence. Id. Rather, its office is to prevent the proponent of potentially prejudicial matter from displaying it to the jury, making statements about it before the jury, or presenting the matter to the jury in any manner until the trial court has ruled upon its admissibility in the context of the trial itself. Id. In order to preserve any error before an appellate court, the party opposing a motion in limine which was granted must make an offer of proof outside the presence of the jury unless the evidence is apparent from the context within which questions were asked. State v. Bruna, 12 Neb.App. 798, 686 N.W.2d 590 (2004).

The State's motion in limine is not included in our record, but the record does include the bill of exceptions from the pretrial hearing on the State's motion and certain motions in limine by Schmidt and the district court's rulings on those motions. At the hearing on the motions in limine, Schmidt made an offer of proof consisting of the pretrial depositions of M.C., M.C.'s mother, K.S., and K.S.' parents. The depositions show that M.C. and K.S. were interviewed regarding prior possible allegations of sexual assault by individuals other than Schmidt. Specifically, K.S. was interviewed when she was 4 years old in connection with a suspicion by her parents of a sexual assault by a cousin. M.C. was interviewed when she was approximately 5 years old, but she made no allegations of sexual assault. Schmidt's counsel argued to the court that he wished to cross-examine K.S. and M.C. regarding these prior matters and to call their parents as witnesses to inquire about the prior matters. Schmidt's counsel argued further that Schmidt's right of confrontation included the right to inquire regarding the prior matters because they provided a basis for a child witness* becoming educated in the process of making reports of sexual abuse. The court inquired as follows:

THE COURT: So in other words, if a child knew good-touch bad-touch, had actually reported something like that before, you want to bring that out in cross-examination and/or examination of the parents and then be able to ask why did you wait — why did you wait whatever amount of time you waited before you reported it in this case; is that the gist of it?

[Schmidt's counsel]: That's the gist of it.

On March 9, 2007, the district court entered an order ruling on the motions in limine. The court did not find that the previous matters constituted past sexual behavior within the scope of Neb.Rev.Stat. § 28-321 (Reissue 1995) or that the evidence should be barred under the provisions of Neb.Rev.Stat. § 27-404 (Reissue 1995). The court did find, however, that the evidence should be excluded under the provisions of § 27-403 because any probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Accordingly, the court granted the State's motion in limine.

At trial, Schmidt's counsel cross-examined witnesses, including K.S.' father, who testified on cross-examination that he suspected during the previous 4 years that Schmidt was touching K.S. inappropriately; that he had questioned K.S. repeatedly about this, including questioning in the presence of K.S.' mother; and that K.S. had repeatedly responded, "`No. Roger is my friend.'" On cross-examination of K.S., Schmidt's counsel elicited testimony that K.S. had received bad touches from her cousin, that...