State v. Standiford
| Decision Date | 07 August 2018 |
| Docket Number | No. A-17-714.,A-17-714. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. SHAWN STANDIFORD, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Frontier County: DAVID W. URBOM, Judge. Affirmed.
Justin M. Daake, of Daake Law Office, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
Shawn Standiford appeals from his convictions in the district court for Frontier County of two counts of third degree sexual assault of a child and one count of intentional child abuse. On appeal, Standiford challenges the sufficiency of the evidence to support his convictions and the denial of his motion for a new trial based on trial irregularities, prosecutorial misconduct, and unfair surprise. For the reasons set forth below, we affirm.
Standiford was charged by amended information with two counts of third degree sexual assault and one count of intentional child abuse against his stepdaughter, S.D. Both sexual assault counts were alleged to have occurred "on or about the month of February, 2015," and the intentional child abuse count was alleged to have occurred "between August 1, 2011 through February 28, 2015." A jury found Standiford guilty on all counts.
Prior to trial, Standiford filed a motion for records, asking the court to grant him leave to subpoena "any and all medical records and/or counseling records of the accuser, S.D." The court entered an order directing the State to produce S.D.'s counseling records from K&M Counseling and Lutheran Family Services. Standiford later filed a motion to compel, alleging that the State had not provided all of the counseling records to which he was entitled. The court sustained Standiford's motion to compel.
Before S.D.'s counselor, Kris Steinbeck, testified at trial, Standiford asked the court to allow him to question her outside the presence of the jury about a discovery issue. Standiford asked Steinbeck about two counseling sessions that she had with S.D. after the last session for which he had records. She explained that S.D.'s caseworker requested the sessions as a mental status checkup and that she kept a record of the sessions. The two sessions were focused on how S.D. was doing after she moved from her mother's house to her father's house. Standiford moved to exclude Steinbeck's testimony because the State failed to provide him with records of the two sessions and thus did not comply with the district court's orders on his motion for records and his motion to compel. The court overruled Standiford's motion to exclude Steinbeck's testimony, but limited her testimony to sessions for which Standiford had records.
Prior to trial, Standiford also filed a motion in limine, alleging the State failed to provide him with discovery regarding certain potential witnesses, namely, S.D.'s friends from school at the time of the assault: K.R., C.B., and M.N. He requested that the court exclude the testimony of those witnesses. At a hearing on Standiford's motion, the State denied failing to provide Standiford with discovery regarding the witnesses. The State specifically stated that C.B. and K.R. were mentioned in a report that was turned over to Standiford and that all three girls were mentioned in S.D.'s deposition. Neither the report nor S.D.'s deposition was included in the trial record. The court overruled Standiford's motion in limine, reasoning that Standiford could have deposed the witnesses listed in the motion after the State endorsed them.
In the course of K.R.'s trial testimony, it became clear that the State failed to provide Standiford with recorded interviews of K.R., C.B., and M.N. Instead, the State only gave Standiford a one-paragraph report explaining that an investigator spoke with the girls. After K.R. testified, the State gave Standiford's counsel an unofficial transcript of the recorded interview. Due to the withheld discovery, Standiford moved for a mistrial. In the alternative, he asked the court to strike K.R.'s testimony from the record and to instruct the jury to disregard it. Although the court denied Standiford's motion for a mistrial, it struck K.R.'s testimony from the record and admonished the jury to disregard it.
Trial was held on April 11, 12, 13, and 18, 2015. During the afternoon of Thursday, April 13, a juror suddenly left the courtroom. After a short recess, the court explained on the record outside the presence of the jury that a juror had become ill and was unable to continue hearingtestimony that day. Because the court feared the juror's illness might spread to other jurors, it announced a recess until Tuesday, April 18, rather than proceeding with the trial using the alternate juror. Standiford argued that the 4-day recess unfairly prejudiced his defense by giving the State an opportunity to further prepare its case and call a witness who was ill during the first week of trial. The court rejected his argument, noting that on April 12 and on the morning of April 13 it had discussed with counsel its intention not to hear evidence on Friday, April 14 and Monday, April 17. The court told counsel that if they did not finish presenting evidence on April 13, it planned to recess until April 18.
Before dismissing the jury for the weekend, the court gave the following admonishment, to which Standiford did not object:
The court then dismissed the jury and recessed until Tuesday, April 18, 2015. Before the court reconvened, the court asked the jurors whether they had spoken to anyone or heard anything about the case during the 4-day recess. No juror admitted to researching or discussing the case, so the court resumed the trial. Although she had already testified, the State recalled S.D. after the 4-day recess to clarify her testimony. The State also presented the testimony of the witness who was ill the previous week, S.D.'s counselor, Kris Steinbeck.
The court held a jury instruction conference at the conclusion of evidence. Standiford objected to the inclusion of negligent child abuse as a lesser offense in the instruction for intentional child abuse. He argued that the evidence did not support a conviction for negligent child abuse. The court found the facts could support a conviction for negligent child abuse, and it overruled the objection.
After the court finalized the jury instructions, the parties presented their closing arguments. Standiford objected on three separate occasions to some of the State's closing comments, arguingthat the State misstated the evidence. But he did not move for a mistrial after any of the three objections. Although the court sustained Standiford's objections, Standiford did not request the court to further instruct the jury about the improper remarks.
At trial, S.D. testified that she is the daughter of Gary D. and Melanie Standiford. Although she currently lives with her father, she lived with her mother and Standiford, her stepfather, in Curtis, Nebraska, until April 2015. While then 11-year-old S.D. was in bed on the night of February 18, 2015, Standiford entered her room three times. The first time, he pulled down her pajama pants and underwear, touched her genitals, pulled her clothes back up, and left. S.D. wrapped herself tightly in a blanket to prevent Standiford from touching her again. When he returned, he rubbed S.D.'s back and hair. He asked her whether she was awake, whether she knew how beautiful she was, and said not to tell her mother. After Standiford left, S.D. fell asleep until he entered her room for the third time. Although Standiford wore a shirt during the first two visits, he was shirtless during the third. He placed his hand up S.D.'s shirt, fondled her left breast, and left without speaking.
Because S.D. used her iPad as an alarm clock, the screen was turned off and it was placed on the side of her bed when Standiford entered her room. She testified that during each visit the iPad was not making noise, she was not sleeping on top of it, and she was not wrapped in the iPad cord. Although she testified that the room's television was off during the three visits, she admitted the television was...
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