State v. Styskal, S-91-042

• Decision Date: 11 December 1992
• Docket Number: No. S-91-042,S-91-042
• Citation: 242 Neb. 26,493 N.W.2d 313
• Parties: STATE of Nebraska, Appellee, v. Stephen R. STYSKAL, Appellant.
• Court: Nebraska Supreme Court

Page 313

493 N.W.2d 313

242 Neb. 26

STATE of Nebraska, Appellee, v. Stephen R. STYSKAL, Appellant.

No. S-91-042.

Supreme Court of Nebraska.

Dec. 11, 1992.

Syllabus by the Court

1. Criminal Law: Courts: Appeal and Error. Under Neb.Rev.Stat. § 25-2733 (Reissue 1989), in an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeal, and as such, its review is limited to an examination of the county court record for error or abuse of discretion.

2. Rules of Evidence: Other Acts. It is firmly established that Neb.Rev.Stat. § 27-404(2) (Reissue 1989) is a rule of inclusion which permits the use of relevant other crimes, wrongs, or acts for all purposes except to prove the character of a person in order to show that such person acted in conformity with that character.

3. Rules of Evidence: Words and Phrases. Most evidence a party offers is prejudicial to the opposing party and is only unfair prejudice if it tends to suggest a decision on an improper basis.

4. Rules of Evidence: Sexual Assault. Where a sexual assault victim's accusations of improper contact, standing alone, seem improbable or a result of a misunderstanding in light of the necessary surrounding circumstances, the relevancy and probative value of evidence substantiating the victim's claim is great.

5. Postconviction: Prisoners: Standing: Probation and Parole: Words and Phrases. A prisoner on parole is sufficiently restricted to render that person "in custody under sentence" for purposes of the Nebraska Postconviction Act.

6. Postconviction: Standing: Probation and Parole: Words and Phrases. Under a broad reading of Neb.Rev.Stat. § 29-3001 (Reissue 1989), court-ordered probation constitutes "custody under sentence" for postconviction relief remedies under the Nebraska Postconviction Act.

7. Effectiveness of Counsel: Proof. To sustain a successful claim of ineffective assistance of counsel, a defendant must prove that (1) counsel's performance was deficient and that (2) such deficient performance prejudiced the defense.

Steven E. Achelpohl, of Schumacher & Achelpohl, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.

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

WHITE, Justice.

After a Hall County Court bench trial, defendant-appellant, Stephen R. Styskal, D.D.S., was convicted of sexual assault in the third degree, in violation of Neb.Rev.Stat. § 28-320(1)(a) (Reissue 1989). For this Class I misdemeanor, Styskal was fined $1,000 and placed on 2 years' probation conditioned on certain limitations on his dental practice and his participation in counseling. On appeal, the district court for Hall County affirmed Styskal's conviction and sentence. Styskal appeals, alleging that the district court erred in finding that prior bad act evidence was admissible, refusing to remand the cause to county court for a hearing on the claim of ineffective assistance of counsel, refusing to admit an exhibit at the district court hearing on appeal, and failing to find that defendant was deprived of effective assistance of trial counsel.

The facts alleged at trial are mostly disputed by the defendant; however, when viewed in the light most favorable to the State, the evidence reveals the following: Styskal is a dentist practicing in Grand Island, Nebraska. On February 17, 1989, the victim went to see the defendant with complaints of jaw, back, and chest pain resulting from an automobile accident some 2 months prior. It is undisputed that the victim was suffering from temporomandibular joint disorder (TMJ), a jaw disorder which she hoped the defendant could treat.

Styskal examined the victim in the presence of her husband. During the examination, Styskal had the victim stand up while he lifted her sweater and massaged or palpated her back, starting at her shoulders. As the defendant moved his hands toward her lower back, he pulled down the victim's pants and, unknown to the victim's husband, placed his finger in the victim's anus. Styskal then briefly checked the victim's teeth and proceeded to examine her chest. Styskal lifted the front of the victim's sweater, palpated her sternum, and proceeded to expose and hold her right breast. According to the victim, the defendant then stated, "[O]ops, I'm sorry," and he removed his hand from her breast. The victim's husband was able to observe that his wife's buttocks and right breast were exposed sometime during the respective back and chest examinations.

In his defense, Styskal denies touching the victim's buttocks, anus, or breast. Instead, Styskal asserts that he merely performed an examination for TMJ, which includes an inspection of the jaw, mouth, muscles of mastication (chewing), and the trapezius muscles (a pair of large back muscles). Because the victim complained of chest pain, his examination also included the sternalis muscle (a chest muscle attached to the breastbone). Defendant offered several excerpts from a medical treatise into evidence, along with a brief technical letter from another Grand Island dentist both of which described muscle evaluations for head and jaw examinations.

The victim and her husband both testified at trial. The State also called two of Styskal's former patients to testify. These two witnesses were allowed to recall, over a Neb.Rev.Stat. § 27-404(2) (Reissue 1989) objection by the defense, separate and independent incidents when Styskal inappropriately touched their breasts during dental examinations in 1985. The first witness visited Styskal for a routine checkup and had no specific medical complaints or problems. The second witness visited Styskal for her yearly checkup and complained of pain in her right jaw from a suspected bad tooth. Both witnesses related their shock when Styskal unexpectedly examined their axillary and breast area.

At the conclusion of the evidence, the county court found the defendant guilty of the offense charged. After a presentence investigation was completed, Styskal was sentenced as noted above. Styskal appealed his conviction and sentence to the district court for Hall County. In the notice of appeal to the district court, Styskal asserted that the judgment was not supported by the evidence, that the conviction was in contravention of state law, and that the judgment was contrary to the Sixth Amendment of the U.S. Constitution and article I, § 11, of the Nebraska Constitution.

The district court held that the testimony of the two prior patients did not violate the prohibition in § 27-404(2), which holds that prior bad acts are inadmissible to show the defendant's propensity or disposition to commit the crime. The court found the evidence properly admissible to prove the necessary intent required by the definition of sexual contact in Neb.Rev.Stat. § 28-318(5) (Reissue 1989) and found that the probative value of the testimony was not outweighed by the damage of unfair prejudice. The court also sustained a State objection to an exhibit offered in support of an ineffective assistance of counsel claim. Finding no error on the record nor any abuse of discretion, the district court affirmed the county court's judgment of conviction and sentence, and this appeal ensued.

We note that no assignments of error were filed with the district court, nor were the appeal briefs to the district court made a part of the record brought before this court. However, since the appeal to the district court was filed just prior to our decision in State v. Erlewine, 234 Neb. 855, 452 N.W.2d 764 (1990), and well before the adoption of Neb.Ct.R. of Cty.Cts. 52(I)(G) (rev. 1992), this court will consider those errors which could have been properly raised and preserved in the district court.

Under Neb.Rev.Stat. § 25-2733 (Reissue 1989), in an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeal, and as such, its review is limited to an examination of the county court record for error or abuse of discretion. State v. Sock, 227 Neb. 646, 419 N.W.2d 525 (1988). Both the district court and the Nebraska Supreme Court generally review appeals from the county court for error appearing on the record. Erlewine, supra.

Styskal alleges that the district court erred in upholding the admissibility of the testimony of the two prior patients. Styskal argues that this testimony concerned prior bad acts that were probative only to show his propensity to commit the crime and were therefore inadmissible under § 27-404(2).

It is firmly established that § 27-404(2) is a rule of inclusion which permits the use of relevant other crimes, wrongs, or acts for all purposes except to prove the character of a person in order to show that such person acted in conformity with that character. State v. Kern, 224 Neb. 177, 397 N.W.2d 23 (1986). The statute states several purposes for which prior bad acts are admissible: as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. This list of acceptable uses is illustrative and not intended to be exclusive. State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991) (citing State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990)).

The crime with which Styskal was charged required that the State prove that Styskal acted with the intent to touch "the victim's sexual or intimate parts" and that the sexual contact included only conduct which could "be reasonably construed as being for the purpose of sexual arousal or gratification of either party." § 28-318(5). In addition to denying that he touched the victim's buttocks, anus, or breasts, the defense attempted to justify the defendant's examination of the chest and back areas as necessary for a diagnostic purpose related to the victim's TMJ condition and chest complaints. The testimony of the two prior patients, who both related similar inappropriate contact during...