State v. Schreiner
| Decision Date | 15 August 2008 |
| Docket Number | No. S-07-828.,No. S-07-829.,S-07-828.,S-07-829. |
| Citation | 754 N.W.2d 742,276 Neb. 393 |
| Parties | STATE of Nebraska, appellee, v. Paul F. SCHREINER, appellant. |
| Court | Nebraska Supreme Court |
Bernard J. Glaser, Jr., Lincoln, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
Paul F. Schreiner was convicted of first degree sexual assault on a child, based on a sexual encounter that had occurred with K.G., a 14-year-old girl, after he gave her a ride home from the Nebraska State Fair.1 Schreiner was also found to have violated an order of probation imposed for two previous convictions of sexual assault of a child.2 In case No. S-07-828, Schreiner appeals from his conviction and sentence for first degree sexual assault. In case No. S-07-829, Schreiner appeals from the revocation of his probation.
Schreiner was 22 years old at the time of the alleged assault, and K.G. was 14 years old. K.G. testified that she and her twin sister, D.G., met Schreiner at a gas station in August 2005, while the girls were walking home from a shopping mall. D.G said that they were walking up to the gas station and "said hi to him and started talking to him" and that K.G. had initiated the conversation. Schreiner offered them a ride home, and they accepted. According to Schreiner, K.G. asked for his telephone number when he dropped the girls off at home. A few hours later, he got a call from one of the girls, who identified herself as K.G. She asked for a ride back to the mall, which he provided. Schreiner said that both girls called him several times in the following days. Schreiner testified that he decided
On Monday, September 5, 2005, K.G. went to the state fair and ended up meeting Schreiner there. Although the various witnesses' accounts differ in the details, it is not disputed that K.G. left the fair with Schreiner. And when K.G. called home later, she became aware that the police had been told that she was missing. She was upset about that and did not want to go home, so she went to Schreiner's residence instead.
K.G. said that when they got there, she went downstairs while he got them some sodas. K.G. testified that she went to the bathroom and that when she came out, a hide-a-bed, had been pulled out of the couch. K.G. said there were sheets and a blanket on the bed. Schreiner, on the other hand, said that there was no bedding on the hide-a-bed, just a sleeping bag. He said the bed was already pulled out when they returned to the residence.
K.G. testified that after she came out of the bathroom, Schreiner was by the bed, and she and Schreiner started kissing. They got on the bed, and K.G. undressed. Schreiner undressed as well, and they had sexual intercourse on the bed. K.G. described the sex as "normal" vaginal intercourse. K.G. said she did not see Schreiner wearing a condom and did not know if he ejaculated. Then, Schreiner told K.G. he was going to bed, and he went to sleep.
Schreiner, on the other hand, testified that when K.G. went to the bathroom, he set his alarm, turned off the lights, and played some music. K.G. came out of the bathroom and went to the hide-a-bed, while he went to sleep on the couch. Schreiner specifically denied kissing K.G. or having sex with her. Schreiner testified that when the alarm went off in the morning, he saw that K.G. was not wearing her jeans. She got dressed, and he took her directly home.
Schreiner said that he had previously had sex with someone else on the sleeping bag that he said was on the hide-a-bed, and had recently masturbated while on the sleeping bag. Schreiner testified that he ejaculated on top of his sleeping bag without cleaning it up.
K.G. said that after she was dropped off at home, she went into the house and changed her underwear and pants. She put the clothes she took off in the laundry and washed them. Then she went to her sister's room to go to sleep. K.G. testified that the next thing she remembered after going to sleep was that her mother came to get her, because a police officer was there to see her. K.G. told the officer what had happened between her and Schreiner. The officer testified that K.G. was reluctant to talk to him, but that based on what he was told, he and K.G.'s mother searched the residence for some articles of K.G.'s clothing. K.G.'s mother testified that she helped the officer make sure that K.G. did not change clothes, although she could not say that K.G. had not changed clothes already. She also looked for clothing in the washing machine, but it was empty.
K.G. testified that she did not want to tell police about what happened with Schreiner, because she knew it would get him in trouble and she did not want that. The police officer told K.G. that K.G. was going to the Child Advocacy Center, which she did, with her family, later that morning. K.G. was interviewed at the Child Advocacy Center and then taken to the hospital. K.G. testified that before she went to the hospital, she had not had an opportunity to shower or bathe. K.G. was examined at the hospital, and the nurse took all her clothing. K.G. testified that because she had changed clothes, the jeans and underwear that were taken from her and tested were not the jeans and underwear she had been wearing at the state fair and at Schreiner's residence. K.G. admitted lying to her father and to the police about changing clothes, because she did not want to get Schreiner in trouble and did not want to give up the clothes that she had been wearing.
Diana Severson-Tomek, a sexual assault nurse examiner (SANE) at BryanLGH Medical Center, performed the examination of K.G. Severson-Tomek testified that during the examination, K.G. said she had not showered, bathed, or douched before the examination. K.G. also told Severson-Tomek that she had not had anything to drink and that she had not changed clothes. Severson-Tomek gathered physical evidence from K.G.: most pertinently, vaginal and rectal swabs. The procedure used for Severson-Tomek's examination will be explained in more detail below. Those samples, along with reference samples taken from Schreiner, were delivered to the University of Nebraska Medical Center's human DNA identification laboratory for testing.
A DNA analyst testified regarding the testing. The analyst tested four items: the vaginal and rectal swabs from K.G., K.G.'s underwear, and the reference sample from Schreiner. The analyst performed two different tests for semen on the swabs and underwear. On each swab, one test returned positive results, while the other returned negative results. But the underwear tested positive for semen in both tests. The only DNA profile obtained from the vaginal swab was from a single female contributor, presumably K.G. But the rectal swab and underwear yielded a mixture of DNA from two contributors.
When the mixtures were compared to reference samples, the contributors were determined to be K.G. and Schreiner. Schreiner was the major contributor to the sample from the underwear, and the testing indicated "primarily sperm cells contributing to that DNA fraction."
Schreiner was charged by information with first degree sexual assault. The State also moved to revoke Schreiner's probation for some previous convictions. The jury found Schreiner guilty of first degree sexual assault. At a later hearing, the court found that Schreiner had violated his order of probation.
On the sexual assault conviction, Schreiner was sentenced to a period of 6 to 9 years' imprisonment. For the probation violations, Schreiner was sentenced to two terms of 2 to 3 years' imprisonment, to be served consecutively to one another and to the sentence from the sexual assault proceeding. Schreiner was also given a "Notice of Lifetime Parole Supervision," informing him that he was subject to lifetime community supervision by the Office of Parole Administration.
Other details regarding the proceedings will be set forth below, with respect to Schreiner's specific assignments of error. Although Schreiner has appealed separately from his conviction for first degree sexual assault and the revocation of his probation, we have consolidated his appeals for disposition.
In case No. S-07-828, and as his sole assignment of error in case No. S-07-829, Schreiner assigns that the court erred in trying the sexual assault charge at the same time as the probation violation charge, in violation of Neb.Rev.Stat. § 29-2002 (Reissue 1995) and the due process and assistance of counsel clauses of the state and federal Constitutions.
The revocation of probation is a matter entrusted to the discretion of the trial court.3 And the general conduct of the trial rests within the discretion of the trial court.4 A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.5
Schreiner had been convicted in 2004 of two counts of sexual assault of a child based on allegations of two separate instances of sexual intercourse with, respectively, a 13-year-old and 14-year-old girl. Schreiner had been sentenced to a 3-year term of probation pursuant to a plea agreement. After the incident with K.G., the State filed a motion to revoke Schreiner's probation.
The motion alleged that Schreiner had violated the conditions of his probation by failing to (1) refrain from unlawful or disorderly conduct or acts injurious to others and (2) meet with his probation officer.
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