State v. Stephens

• Decision Date: 15 March 1991
• Docket Number: No. 90-198,90-198
• Citation: 466 N.W.2d 781,237 Neb. 551
• Parties: STATE of Nebraska, Appellee, v. Robert D. STEPHENS, Appellant.
• Court: Nebraska Supreme Court

Page 781

466 N.W.2d 781

237 Neb. 551

STATE of Nebraska, Appellee, v. Robert D. STEPHENS, Appellant.

No. 90-198.

Supreme Court of Nebraska.

March 15, 1991.

Syllabus by the Court

1. Rules of Evidence: Other Acts. Neb.Rev.Stat. § 27-404(2) (Reissue 1989) is a rule of inclusion, rather than exclusion; the list of acceptable uses recited in the statute is illustrative and not intended to be exclusive.

2. Rules of Evidence: Other Acts. Neb.Rev.Stat. § 27-404(2) (Reissue 1989) prohibits the use of evidence of other crimes, wrongs, or acts to establish a character trait or proclivity to act in a certain way for the purpose of proving that the party against whom the evidence is offered acted in conformity with that trait.

3. Trial: Evidence: Other Acts. The admissibility of evidence of other crimes or wrongful acts is generally within the discretion of the trial court.

4. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts admissible under the provisions of Neb.Rev.Stat. § 27-404(2) (Reissue 1989) is subject to the overriding protection of Neb.Rev.Stat. § 27-403 (Reissue 1989), which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

5. Sexual Assault: Evidence: Other Acts. Sexual crimes are offenses in which evidence of other similar sexual conduct is recognized as having independent relevancy, and such evidence may be admissible whether that conduct involved the complaining witness or third parties.

6. Trial: Evidence. Balancing the probative value of evidence against the danger of unfair prejudice is within the discretion of the trial court.

7. Rules of Evidence: Words and Phrases. Most, if not all, of the evidence a party offers is calculated to be prejudicial to the opposing party, and so it is only unfair prejudice, that is, the tendency to suggest a decision on an improper basis, which is the concern of Neb.Rev.Stat. § 27-403 (Reissue 1989).

8. Trial: Evidence: Presumptions. In a case tried without a jury, it is presumed that in reaching its decision the trial court, as the finder of fact, considered only competent and relevant evidence and that it considered such evidence only for a proper purpose.

9. Sentences: Appeal and Error. A sentence that is within the statutory limits will not be disturbed upon appeal absent an abuse of discretion.

10. Sentences. As a practical matter, it is the minimum portion of an indeterminate sentence which measures its severity.

Richard Scott, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Denise E. Frost, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

Defendant-appellant, Robert D. Stephens, was convicted after a bench trial of first degree sexual assault on his own not quite 1-month-old granddaughter, in violation of Neb.Rev.Stat. § 28-319 (Reissue 1989), and sentenced to imprisonment for a period of not less than 15 nor more than 50 years. Stephens asserts that the trial court erred in (1) admitting certain evidence and (2) imposing an excessive sentence. We affirm.

On the evening of June 19, 1989, the then 53-year-old Stephens was at home with his daughter, her 15-month-old son, and her daughter, the infant victim. At around 9:30 p.m., Stephens, who had been drinking, asked his daughter to go down to a neighborhood shop and get him a newspaper. The daughter had just put the infant to sleep in a baby swing after bathing, feeding, and changing her. While bathing the infant, the daughter washed the infant's vaginal area and noted nothing abnormal about her at that time.

The daughter took her son with her to fetch the paper, leaving the sleeping infant alone with Stephens. At the shop the daughter happened upon a friend she had not seen for some time. After they had chatted for a while, the daughter invited the friend home to see her infant.

When they arrived back at the house after having been gone about 45 minutes to an hour, the infant was not in the swing where she had been left. The daughter and her friend then went into the front room of the house and found Stephens lying on the couch, with the infant at his feet. The infant was wearing one of her 15-month-old brother's diapers, which was inside out and unfastened. Stephens acted surprised at his daughter's return.

When the daughter picked up the infant, who had had her eyes closed, the infant began to scream. The daughter took the infant into another room to change her diaper and noticed that the diaper was bloody. Upon noticing that the infant's vaginal area was puffy, red, and looked sore, the daughter decided to take the infant to the hospital, suspecting at this point that her father had "done something" to the infant. When she confronted her father, Stephens stated that he had not done anything to the infant and that the infant's formula was somehow to blame. Stephens tried to dissuade his daughter from taking the infant to the hospital; at one point he grabbed her wrist with enough force to leave bruises.

The daughter took the infant to a hospital, where she was examined for evidence of sexual assault. The examining physician testified that the infant had a 1-centimeter laceration in the posterior fourchette, approximately 5 millimeters deep, extending from the inside of the innermost portion of the external genitalia into the skin toward the anus. The physician further testified that there were irregular tears through the hymenal ring. It was the physician's medical opinion that this was not a normal vaginal opening for an infant of this age and that the injury was caused by a blunt instrument, either manmade or natural, such as a finger or a penis. The physician stated that he "thought it was an obvious case of sexual abuse" and that the injuries were fresh, no more than 12 hours old.

At trial, Stephens' 32-year-old stepdaughter testified that Stephens had had sexual contact with her repeatedly over a substantial period of time, starting when she was a child between the ages of 4 and 5. In these contacts, which began in California about a year after Stephens and her mother were married, Stephens would fondle and digitally penetrate his stepdaughter. This conduct usually occurred on a couch after Stephens had been drinking and while the stepdaughter's mother was absent. When the stepdaughter reached about 14 years of age, Stephens began having intercourse with her. The latter practice continued for an unspecified period of time, but at least until the stepdaughter was 15 years old.

Stephens' first assignment of error involves the admission of his stepdaughter's testimony. Neb.Rev.Stat. § 27-404(2) (Reissue 1989) provides Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Contrary to Stephens' assertions, this provision is a rule of inclusion, rather than exclusion; the list of acceptable uses recited in the statute is illustrative and not intended to be exclusive. State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989); State v. Craig, 219 Neb. 70, 361 N.W.2d 206 (1985).

Section 27-404(2) prohibits the use of evidence of other crimes, wrongs, or acts to establish a character trait or proclivity to act in a certain way for the purpose of proving that the party against whom the evidence is offered acted in conformity with that trait. This use is prohibited because of the risk that a trier of fact may base its decision upon a determination that a party is a bad person, rather than upon the specific facts relevant to the charge or controversy which is the subject of the trial.

The admissibility of evidence of other crimes or wrongful acts is generally within the discretion of the trial court. State v. Ryan, 226 Neb. 59, 409 N.W.2d 579 (1987); State v. Keithley, 218 Neb. 707, 358 N.W.2d 761 (1984); State v. Dandridge, 209 Neb. 885, 312 N.W.2d 286 (1981). Like all evidence, it is subject to the overriding protection of Neb.Rev.Stat. § 27-403 (Reissue 1989), which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. State v. Yager, supra. In reviewing the admission of evidence of other acts under § 27-404(2), the appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. Yager, supra.

Because Stephens elected a bench trial, there was no jury to instruct, and the fourth factor listed above is irrelevant to our review. Thus, we turn our attention to the remaining three factors.

Was the evidence that Stephens had recurring sexual contact with his stepdaughter relevant to the offense with which he was charged? The relevant portion of § 28-319 reads: "(1) Any person who subjects another person to sexual penetration and ... (c) the actor is nineteen years of age or older and the victim is less than sixteen years of age is guilty of sexual assault in the first degree."

Sexual penetration is defined as

sexual intercourse in its ordinary meaning, cunnilingus,...