State v. Stone
| Decision Date | 01 September 2020 |
| Docket Number | No. A-19-642.,A-19-642. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. HAROLD L. STONE, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Thayer County: VICKY L. JOHNSON, Judge. Affirmed.
Mark E. Rappl for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
This is a postconviction appeal. In 2016, Harold. L. Stone was convicted by a jury of four counts of first degree sexual assault of a child, each a Class IB felony, and one count of child abuse, a Class IIIA felony. Stone was sentenced to imprisonment for a mandatory minimum term of 15 years and maximum term of 20 years on each sexual assault conviction, and to a term of 4 to 5 years' imprisonment on the child abuse conviction, with two of the sexual assault sentences to be served consecutively and the remaining sentences to be served concurrently. On direct appeal, the Nebraska Supreme Court affirmed Stone's convictions and sentences. State v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017).
Stone now appeals the decision of the district court for Thayer County which denied his motion for postconviction relief without an evidentiary hearing. In this appeal, Stone alleges a variety of errors concerning the court's denial of relief related to his assertions of ineffective assistance of his trial and appellate counsel. Stone also alleges that the district court erred in finding that he was not denied due process during the original proceedings. For the reasons set forth herein, we affirm the decision of the district court to deny Stone's motion for postconviction relief without an evidentiary hearing.
In June 2016, Stone was charged by information with five counts of first degree sexual assault of a child and one count of child abuse. The amended information alleged Stone sexually penetrated the victim, H.W., on five separate occasions in 2014 and 2015, at a time when H.W. was under the age of 16 and Stone was over the age of 25. Stone entered pleas of not guilty, and the matter proceeded to trial.
H.W. was adopted by her parents when she was 9 months old after suffering severe abuse and neglect for the first few months of her life. H.W. was subsequently diagnosed with fetal alcohol effects and reactive attachment disorder. H.W.'s mother, Lynne, testified that H.W. had behavioral problems as a result of her diagnoses and she required a great deal of structure, routine, and oversight. H.W.'s therapist elaborated on H.W.'s diagnosis of reactive attachment disorder when she testified that children with reactive attachment disorder can be manipulative and great "storytellers." In addition, they can be apt to form inappropriate attachments with older adults, to be hypersexual, and to fail to anticipate the consequences of their actions. Children with reactive attachment disorder can be difficult to parent and are vulnerable to abuse.
H.W. was homeschooled after her sixth grade year so that Lynne could more closely monitor H.W. At home, H.W. was not permitted to have her own cellular telephone, nor was she permitted to have any unsupervised access to a computer.
During the spring of 2014, when H.W. was 14 years old, H.W. and her family met Stone at church. Shortly thereafter, H.W. began assisting Stone in his nearby garden, greenhouse, and specialty store. Then, in August, Stone approached Lynne regarding him helping to homeschool H.W. In particular, Stone indicated that he could help H.W. with science and math as a result of his background. Lynne agreed.
At trial, H.W. testified that when Stone started homeschooling her, he began making comments of a sexual nature, including telling H.W. that she needed "sex education." In addition, despite Lynne's directives, Stone gave H.W. her own cellular telephone and access to an iPad and helped H.W. to set up her own email and social media accounts.
H.W. testified that on August 20, 2014, which was Stone's birthday, Stone kissed her on the neck. H.W. indicated that she told Stone, "No." However, during the next few weeks, Stone continued to act sexually toward H.W., including repeatedly taking her clothes off and touching her breasts and touching both outside and inside of her vagina. H.W. described how Stone would become upset with himself when he was unable to perform sexually during these instances.
On September 24, 2014, which was H.W.'s 15th birthday, she and Stone planned to spend the day together. H.W. wanted to get her hair done, get her nose pierced, and go to a restaurant to eat. Stone told H.W. that they were also going to have sexual intercourse that day. H.W. testified that she did not feel that she had a choice about having sex with Stone, especially when he showed her that he had purchased condoms. When H.W. and Stone returned to Stone's house thatafternoon, Stone gave H.W. an alcoholic beverage to drink while he took "Viagra." They both went upstairs to the guest room where they got undressed. H.W. described touching Stone's erect penis and him touching her bare chest and inside of her vagina. H.W. testified that they performed fellatio and cunnilingus on each other and then had penile-vaginal sexual intercourse. H.W. described that Stone ended up not wearing a condom, but did ejaculate.
After having sexual intercourse with Stone, H.W. went to Stone's store for a little while. When she returned to Stone's house, they had sexual intercourse again. This time, she remembered him ejaculating on her right leg. H.W. testified that her father then came to pick her up from Stone's house.
H.W. testified that her sexual relationship with Stone continued on a regular basis through December 2014. She described two specific instances which occurred during the fall and winter of 2014. During these instances, Stone would make her an alcoholic beverage to drink and they would engage in various sexual acts, including penile-vaginal sex. H.W. also described Stone taking pictures of her in his bed. H.W. explained that Stone took one of the pictures while he was straddling her in his bed.
Stone left Nebraska for much of the month of January 2015, but when he returned, H.W. testified that their sexual relationship resumed. H.W. testified that her last sexual experience with Stone occurred in February 2015, when Stone drove her and her sister to an educational conference in Omaha, Nebraska. The night before the conference, H.W. described talking with Stone over "facetime" while she was in the bathtub. Evidence at trial revealed that Stone had taken a screenshot of H.W. during this telephone call which depicted her in the bathtub. This photograph was found on his electronic devices.
On the way home from the conference, H.W. and Stone believed that H.W.'s sister was asleep in the backseat of the vehicle. Stone began touching H.W. under her shirt and bra. He then put his hand in her pants and put his fingers inside of her vagina. When he was done, H.W. and Stone held hands with their fingers interlocked.
H.W. testified that her sexual relationship with Stone ended because Lynne would no longer allow her to see Stone. H.W. indicated that at that time, she believed she loved Stone and that they were going to have a future together. A few months after their sexual relationship ended, however, H.W. disclosed that Stone had been sexually abusing her.
While H.W.'s testimony was the only direct evidence of the sexual abuse, there was other evidence presented at trial which corroborated her account of her relationship with Stone. For example, in an email sent from H.W. to Stone the night before H.W.'s birthday, H.W. wrote, "Hair[,] Piercing[,] Massage[,] Eat[,] Victoria Secret[,] Condoms[, and] YADA YADA YADA[.]" Within minutes, Stone responded, In December 2014, Lynne found a card written by H.W. to Stone. In the card, H.W. had written, "Can[']t wait till I[']m 18 because its Legal and etc." When Lynne confronted Stone about the card, Stone wanted to see the card and then took it from Lynne and did not return it.
Inappropriate photographs taken of H.W., some with one of Stone's electronic devices, were found saved on Stone's computer. These photographs included two images of H.W. naked in Stone's bed covered only by a sheet.
H.W.'s sister testified about her time with H.W. and Stone at the educational conference in February 2015. She testified that she observed Stone tell H.W. he loved her, hug H.W., and kiss H.W. on the top of her head. She admitted that she had fallen asleep on the ride home from the conference, but when she woke up, she observed H.W. and Stone holding hands with each other with their fingers interlocked.
Lynne testified regarding her observations of H.W. and Stone as well. She indicated that she had some concerns regarding Stone's relationship with H.W. early on. However, these concerns increased when Stone sent Lynne a text message on October 2, 2014, at 1:42 in the morning. The text message said:
Here is when you know that it is on the edge of being obsessive. . . . You wake up in the middle of the night in a hotel and scramble to put on your clothes because you got to take [H.W.] home. . . . Until [your wife] reminds you that you are in Ogallala, and there is no way [H.W.] could be here."
Lynne testified that around the same time that she received that text message from Stone, she started going with H.W. to help in Stone's store. While at the store, Lynne observed Stone and H.W. whispering together. In addition, they would regularly find excuses to leave alone together, despite Lynne's protests. Lynne explained that on multiple occasions, Stone and H.W. indicated that they were going to take the composting to the greenhouse, but when they returned awhile...
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