State v. Smith, S–14–769

CourtSupreme Court of Nebraska
Citation292 Neb. 434,873 N.W.2d 169
Docket NumberNo. S–14–769,S–14–769
Parties State of Nebraska, appellee, v. Kelvin L. Smith, appellant.
Decision Date15 January 2016

292 Neb. 434
873 N.W.2d 169

State of Nebraska, appellee,
Kelvin L. Smith, appellant.

No. S–14–769

Supreme Court of Nebraska.

Filed January 15, 2016.

Thomas P. Strigenz, Sarpy County Public Defender, and April L. O'Loughlin for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

873 N.W.2d 181

Heavican, C.J., Wright, Connolly, McCormack, Miller–Lerman, Cassel, and Stacy, JJ.

McCormack, J.


Kelvin L. Smith was convicted in a jury trial of two counts of first degree sexual assault of a child; three counts of third degree sexual assault of a child; three counts of incest; three counts of visual depiction of sexually explicit conduct; and one count of child abuse. Three of the sexual assault charges were charged as second offenses, which, pursuant to Neb. Rev. Stat. § 28–319.01(3) (Cum. Supp. 2014), enhanced Smith's penalty to a mandatory minimum sentence of 25 years in prison. In total, Smith was sentenced to 41 to 110 years of imprisonment,

292 Neb. 439

35 of those years being "hard" years, for which there is no possibility of parole. Smith appeals both his convictions and sentences, assigning 12 errors.


Smith and Jennifer Smith met and began dating in April 2004. In late April or May, Smith moved into Jennifer's apartment in Council Bluffs, Iowa, with Jennifer and her two daughters, S.D. and A.L., who were 9 and 6 years old at the time. Smith and Jennifer were married in June 2004. They conceived a son, who was born in September 2010.

On August 6, 2013, Child Protective Services received a child sexual abuse report with regard to S.D., A.L., and the Smiths' son. As a result of the report, a caseworker went to the Smiths' apartment to interview each family member. Based on disclosures made by A.L., the case was turned over to a detective. On August 12, the detective questioned Smith, and then placed him under arrest. On October 22, Smith was formally charged with offenses of which he was later convicted.

S.D. and A.L. both testified at Smith's trial that Smith sexually assaulted them. Although they could not testify to the exact dates for each of the alleged incidents, the girls described their experiences in terms of where they were living at the time. Thus, it becomes relevant that the family moved to La Vista, Nebraska, in 2005 and to Bellevue, Nebraska, in 2007.

1. S.D.

At trial, S.D., then 19 years old, testified that Smith began sexually assaulting her when she was 10 years old and the family was living in La Vista. She testified that the first incident occurred one day while her mother and sister were gone. Smith called S.D. into his bedroom, grabbed her by the wrist and took her clothes off despite her asking him to stop. S.D. testified that Smith pulled her down to the bed, pulled down his pants, got on top of her, spread her legs open, and put his penis inside her. S.D. testified that incidents like the one she

292 Neb. 440

described occurred multiple times a month while they lived in La Vista. S.D. said she never told her mother because Smith told her not to and told her that it would upset her mother.

S.D. testified that the sexual assaults began to occur more frequently after the family moved to Bellevue in 2007. She testified that a couple of times a week, Smith would touch her inappropriately or force her to have oral sex or intercourse with him.

When S.D. was 12 or 13 years old, she began to go through puberty and began to grow pubic hair. At trial, S.D. testified that Smith told her she needed to start shaving because he did not like her having hair on her pubic area. She said Smith showed her how to shave; he used a razor on her legs and pubic area without soap or

873 N.W.2d 182

other lubricant and cut her. Although S.D. admitted she sometimes cut her wrists on purpose, S.D. testified that on another occasion, Smith had cut her on the inside of her thighs with a box cutter blade because she did not shave and was "disgusting and ugly." At trial, Dr. Suzanne Haney discussed photographs of S.D.'s thighs, which show scarring consistent with small lacerations that have healed.

(a) Photographs

At trial, S.D. testified that Smith took nude photographs of her on multiple occasions. At trial, S.D. was able to recall specific details about an incident that occurred when she was 13 years old. When asked to describe that incident, S.D. said:

He took off my clothes and put me on the bed....


[He] grabbed hold of my knees and put them in the air and took a picture [of my vaginal area].


... There was another one where I was—I was on my hands and knees, and I remember he put his hand on the—on my back and pushed my butt up in the air and took a picture like that.

292 Neb. 441
... There was two more. The other one was—I was on my back, and it was from my neck down.


... I can't remember the fourth one.

S.D. testified that she saw the pictures after they were taken. She said that the photograph Smith took of her buttocks showed her vaginal area. S.D. testified that Smith placed the photographs into his photograph album (photo album), where there were also nude photographs of S.D.'s mother.

A detective, Sarah Spizzirri, obtained Smith's photo album from Jennifer after Smith's arrest. At the time Spizzirri obtained the album, it did not contain any photographs of S.D. Instead, there was an empty page where the photographs in question were alleged to have been placed.

Smith's photo album was the kind with peel-back-and-stick contact sheets. At trial, Spizzirri testified about those types of photo albums, and Smith objected on form and foundation grounds throughout that testimony. Spizzirri said she was old enough to remember those types of photo albums and described how to insert a photograph into them. Spizzirri was allowed to testify that a contact sheet that has never been lifted is smooth and one that has been lifted is "all bubbled." When the State asked Spizzirri whether a blank page of Smith's photo album, where explicit photographs of S.D. had allegedly been, was bubbled and appeared to have been used, Smith objected again, and the court, believing the testimony had already been adduced, sustained Smith's objection on the grounds that the question had been asked and answered.

(b) Prior Consistent Statements

S.D. testified that Smith had stopped sexually assaulting her in 2008 when she started dating her first boyfriend, Collin Ryan, whom she dated on and off for 4 years. S.D. testified that one day, while she was babysitting with Ryan, she told Ryan that Smith had touched her.

S.D. also testified that she had expressed to her best friend, Kendra Dick, that she was being sexually assaulted. S.D.

292 Neb. 442

testified that she wrote a poem about it in a notebook that she shared with Dick, sometime around their sophomore year of high school. Without any hearsay objections from Smith, S.D. explained that the poem "was about [her] being afraid to be alone; and [she] was afraid that if [she]

873 N.W.2d 183

was alone, then he would do it again to [her]," and that the poem "talked about [her] hurting because someone kept hurting [her]."

S.D.'s testimony was partly corroborated by Ryan's and Dick's statements at trial. Ryan testified that in December 2008, he drove S.D. home after a date, and that as he was backing up to leave, S.D. came running back outside. Ryan said that he went up to her to see what was wrong and that S.D. started crying. Over Smith's hearsay objections, Ryan testified that S.D. told him that she could not be there anymore, because "he" touches her. Ryan said he understood it to be Smith who was touching S.D., since no other males lived in the house.

Dick testified that in junior high, she and S.D. had a secret notebook in which they would write notes to each other and pass back and forth between classes. Dick testified that S.D. wrote a poem in the notebook, but Smith's hearsay objections were sustained, and Dick was not allowed to testify to the specific contents of the poem. Rather, Dick was allowed to testify that the poem was significant to her and caused her to feel scared for S.D. because "something wasn't right." When asked if Dick's understanding was that the poem was about Smith's raping S.D., Dick answered yes. Smith then objected on hearsay grounds, and that objection was overruled.

2. A.L.

A.L., who was 16 years old at the time of trial, testified that Smith began sexually assaulting her when she was 11 years old. She testified that the first time such an incident occurred, Smith came to her room at night and lay on her bed. A.L. testified that Smith took her pants and his clothes off, opened her legs, and put his penis inside her for what "felt like a long time." A.L. testified that about a month

292 Neb. 443

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