State v. Tlamka

• Decision Date: 10 December 1993
• Docket Number: No. S-91-664,S-91-664
• Citation: 508 N.W.2d 846,244 Neb. 670
• Parties: STATE of Nebraska, Appellee, v. Frank TLAMKA, Appellant.
• Court: Nebraska Supreme Court

Page 846

508 N.W.2d 846

244 Neb. 670

STATE of Nebraska, Appellee, v. Frank TLAMKA, Appellant.

No. S-91-664.

Supreme Court of Nebraska.

Dec. 10, 1993.

Syllabus by the Court

1. Trial: Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in admissibility of evidence.

2. Trial: Rules of Evidence: Hearsay: Words and Phrases. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Neb.Evid.R. 801(3).

3. Rules of Evidence: Hearsay. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition, although hearsay, is admissible under the "excited utterance" exception to the hearsay rule.

4. Rules of Evidence: Hearsay. For a statement to qualify as an excited utterance, the following criteria must be established: (1) There must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant while under the stress of the event.

5. Rules of Evidence: Hearsay: Time. For hearsay to be admissible under the excited utterance exception, statements need not be made contemporaneously with the exciting cause but may be made subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated. The key requirement is spontaneity, a showing that the statement was made without time for conscious reflection.

6. Rules of Evidence: Hearsay. The true test in spontaneous exclamations is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue.

7. Trial: Rules of Evidence: Hearsay. A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and if the statement is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

8. Judgments: Appeal and Error. Where the record adequately demonstrates that the decision of a trial court is correct although such correctness is based on a ground or reason different from that assigned by the trial court, an appellate court will affirm.

Bradley J. Montag of Moyer, Moyer, Egley, Fullner & Warnemunde, Madison, for appellant.

Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and MORAN, District Judge, Retired.

MORAN, District Judge, Retired.

Frank Tlamka was convicted in a jury trial of first degree sexual assault on a child and sentenced to prison for not less than 2 nor more than 5 years. Tlamka appealed to the Nebraska Court of Appeals, which affirmed the conviction. State v. Tlamka, 3 NCA 28 (1993). We granted Tlamka's petition for further review to consider the admissibility of the victim's statements made to an investigating officer 3 days after the assault.

The assault occurred in Lincoln at the home of the victim, J.H., on Sunday afternoon, July 22, 1990, while Tlamka was babysitting J.H. and her younger sister. At the time, Tlamka was 61 years old and J.H. was nearly 5 years old. That day, the victim's grandmother, Arlene, and the victim's mother went shopping and the victim's father worked his part-time job.

Tlamka knew J.H.'s family well because he lived with Arlene and often saw J.H. and her family during their visits to Tlamka and Arlene's home in Morse Bluff, Nebraska, and during Tlamka and Arlene's visits to J.H.'s home in Lincoln. Tlamka had a good relationship with Arlene's sons and J.H.'s family. Tlamka often babysat J.H. and her younger sister. Witnesses described J.H. and Tlamka as "very friendly, very close," and "inseparable." Tlamka regarded the victim as a natural granddaughter, giving her gifts and spending time with her when they were together. J.H. referred to him as "Po-po."

After J.H.'s parents returned home that day, at approximately 5:30 p.m., Tlamka took J.H.'s father aside to talk with him. Tlamka told the father that the parents should keep their bedroom door closed "when [they] were making love because [J.H.] is starting to talk about what [the parents] were doing in there." Tlamka also told J.H.'s father that J.H. had told Tlamka she " 'saw mommy putting daddy's weiner in her mouth.' " After Tlamka and Arlene left J.H.'s home to return to Morse Bluff, J.H.'s father told J.H.'s mother what Tlamka had said. The father testified that J.H. unexpectedly came "around the corner and she told me, 'I saw Po-po's weiner.' " When questioned by her parents, J.H. indicated by pointing her finger that Tlamka's penis had been placed in her mouth.

The next day, J.H. came to her mother with a naked "Ken doll" and told her mother, " 'This is what Po-po looked like when you were shopping, mama.' " According to her mother, J.H. had never reported similar sexual contact prior to July 22 and never identified anyone other than "Po-po" as being responsible.

After discussing the matter with their pastor, the parents decided to seek police assistance. On the evening of July 25, Mark Lantis, a sergeant of the Lincoln Police Department, visited J.H.'s home, bringing with him anatomically illustrative dolls.

When Officer Lantis arrived, he observed J.H. running about her home. On cross-examination, he was asked about J.H.'s demeanor the evening he interviewed her. Officer Lantis testified that J.H. was "overly shy when I first got there, however ... after I'd been with her for a while she was real--real easygoing and was able to talk to me and seemed real comfortable with me." During the interview, when Officer Lantis would ask a question, J.H. would look to her parents standing in her bedroom doorway to see if it was okay to answer. Officer Lantis acknowledged on cross-examination that he would expect a 4-year-old girl to be shy.

Over Tlamka's hearsay objection, Officer Lantis testified to the conversation he had with J.H. The officer stated that he asked J.H. what happened, having her use the dolls to show him what occurred and asking her to use the adult male doll as Tlamka. J.H. related that Tlamka had taken her clothes off. Officer Lantis asked her if Tlamka had kept his clothes on, and J.H. told him, " 'No.' " She proceeded to undress the male doll with the exception of the doll's underwear. Officer Lantis asked J.H., "Is that how he was dressed?" J.H. hesitated and then told the officer, " 'No.' " He asked her to show him how Tlamka was dressed. J.H. then pulled the doll's underwear down until the penis on the doll was exposed.

In response to J.H.'s hesitancy to use the dolls at this point in the interview, Officer Lantis asked her to use the male doll with herself to show him what had happened. J.H. then placed the male doll between her legs, rubbing its penis against her vaginal area and then over her stomach and both her nipples. She then turned over, lay on her stomach, and rubbed the male doll against her buttocks.

In addition to the interview using the dolls, Officer Lantis questioned J.H. further. J.H. told him that vaginal penetration occurred, but not anal penetration, and that Tlamka had placed his penis in her mouth. When questioned whether this had happened anywhere else, J.H. held up two fingers and told Officer Lantis that it had happened when " 'we stayed at grandma's.' "

J.H. was examined by Dr. Kristen Johnson on July 26. J.H. told the doctor that Tlamka had sexual contact with her, and she gave the doctor an account consistent with the one given to the officer. The physical examination indicated no physical evidence of sexual abuse. J.H.'s genital area was normal for a female her age. Her hymen was intact and measured 3 mm, also normal for her age. In an exam the month before, Dr. Johnson had examined J.H.'s genital area, and J.H. did not hesitate to let the doctor do the exam on that occasion. During the exam on July 26, however, the doctor noted that J.H. was hesitant to let the doctor check her genitals closely, that J.H. "kept closing her legs," and that J.H. looked to her mother for reassurance. Despite the lack of physical evidence of sexual abuse, Dr. Johnson was not surprised no physical evidence was found, considering J.H.'s account.

At trial, J.H. testified and was cross-examined concerning the assault. She testified on direct examination that Tlamka had had sexual contact with her and that at the time his penis was "hard" and pointed downward. On cross-examination, defendant's counsel reminded J.H. of her previous deposition testimony and asked her whether her mother had taught her to say "private," "wee wee," or "rock hard." J.H. answered, "No." J.H.'s testimony was consistent with the reports she gave to Officer Lantis and Dr. Johnson.

In his defense, Tlamka denied having sexual contact with J.H. He testified that on July 22, he was left with J.H. and her sister while Arlene and J.H.'s mother went shopping. After putting J.H.'s sister down for a nap, Tlamka sat down and read the paper. Tlamka related that after a period of time, J.H. told him she was tired and wanted to take a nap. Since J.H. wanted him to come with her to her bedroom, Tlamka accompanied J.H. to her bedroom. Tlamka testified that J.H. lay in her bed for about "three, four minutes" and that J.H. then came to lie next to him on the floor next to her bed. Tlamka stated that after some time, J.H. brushed her hand across his groin, bent over, and "made a kissing sound." Tlamka was surprised and asked...