State v. Torwirt, A-99-507.
| Decision Date | 14 March 2000 |
| Docket Number | No. A-99-507.,A-99-507. |
| Citation | 9 Neb. App. 52,607 N.W.2d 541 |
| Parties | STATE of Nebraska, appellee, v. Heather TORWIRT, appellant. |
| Court | Nebraska Court of Appeals |
James R. Mowbray and Kelly S. Breen, of the Nebraska Commission on Public Advocacy, Lincoln, for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
After a trial on stipulated facts, Heather Torwirt was found guilty on January 28, 1999, of first degree sexual assault on a child under Neb.Rev.Stat. § 28-319 (Reissue 1995). On April 6, 1999, she was sentenced to probation for a period of 3 years and was ordered to serve a period of 90 days, minus time served, in the Lancaster County Corrections facility. Furthermore, pursuant to Nebraska's Sex Offender Registration Act, Neb.Rev.Stat. § 29-4001 et seq. (Cum.Supp.1998), Torwirt was ordered to register within 5 days of her release with the sheriff of the county in which she resides. Torwirt appeals.
Torwirt and the State submitted her case to the court based upon the following stipulated facts: The mother of P.N., date of birth October 14, 1993, and Torwirt were friends and would often babysit one another's children. There were occasions when P.N. would spend the night at Torwirt's residence.
On March 16, 1997, Det. Sgt. Gregory Sorensen of the Lincoln Police Department was investigating an alleged sexual assault of another child, M.P., who is not the victim in this case. During the late afternoon or early evening, Detective Sorensen contacted Me.P. regarding a telephone conversation that Me.P. had had with Torwirt relating to the alleged sexual assault. Me.P. was concerned that her child could have been a victim of a sexual assault and agreed to assist Detective Sorensen. Me.P. agreed to call Torwirt, who was at that time at a motel in Illinois.
On March 16, 1997, Me.P. called Torwirt at the motel where she was staying, and the conversation was taped by Detective Sorensen through a device installed by him. Detective Sorensen was not present during the telephone call. During that conversation, the following exchange took place between Me.P. and Torwirt:
Detective Sorensen returned later that evening to retrieve the tape of the conversation from Me.P. He listened to the tape of the conversation and then took the tape to the Lincoln police station and logged it into property.
Detective Sorensen then made a telephone call to Torwirt, whom he considered to be a suspect in the sexual assault investigation. During the telephone call, Detective Sorensen discussed the sexual assault investigation with Torwirt. This conversation was also taped by Detective Sorensen. He identified himself as a police officer at the beginning of their conversation. A partial transcript of that conversation was entered into evidence. Torwirt stated that she sometimes babysat 3-year-old P.N. She then began to describe an incident which occurred between April and October 1996 or possibly between July and October 1996 involving herself, her husband, and P.N. when P.N. was spending the night.
Later in the conversation, the following exchange took place:
During their conversation, Detective Sorensen also became aware that Torwirt was attending an outpatient treatment center in Illinois.
Officer Kerry Crosby, also with the Lincoln Police Department, was involved in the investigation of the same sexual assault on a child case. Shortly after Detective Sorensen's conversation with Torwirt on March 16, 1997, Officer Crosby called and spoke with one of Torwirt's counselors in Illinois. The counselor advised him that an interview would not interfere with Torwirt's treatment. Officer Crosby then contacted Torwirt. Torwirt agreed to speak with him if he traveled to Illinois to interview her.
Officer Crosby traveled to Illinois to interview Torwirt. He arrived at the motel where Torwirt was staying on March 19, 1997, and he interviewed her that evening. Torwirt agreed to go to Officer Crosby's room at the same motel in which she was staying for the interview; the two had an unrecorded conversation for approximately 10 to 15 minutes, followed by a 2hour tape-recorded interview.
Later the same evening, Torwirt returned to Crosby's motel room to make a recorded telephone call to her husband. Although a transcript of that conversation was entered into evidence, the parties stipulated that statements therein made by Torwirt's husband were inadmissible hearsay and could not be considered to prove the truth of the matters asserted. While that conversation contains what might be an admission of remorse by Torwirt's involving P.N., it nonetheless suffers from the same deficiency as the confession. Thus, the transcript does not carry the State's burden of proof either. Other than the above excerpts from the recorded conversations on March 16 and 19, 1997, and the stipulation, the State offered no other evidence.
Within the stipulation, Torwirt reserved her objections to the admissibility of her statements and renewed her motion to suppress those statements. The parties further stipulated that Torwirt did not waive the constitutional grounds for her...
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State v. Barber
...The corpus delicti of a crime is the body or substance of a crime—the fact that a crime has been committed. See State v. Torwirt , 9 Neb. App. 52, 607 N.W.2d 541 (2000). The corpus delicti may be proved by circumstantial evidence. Id. Extrajudicial admissions or a voluntary confession is in......
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...of a crime, the fact that a crime has been committed without regard to the identity of the person committing it. State v. Torwirt, 9 Neb. App. 52, 607 N.W.2d 541 (2000). The corpus delicti may be proved by circumstantial evidence. Id, citing State v. Payne, 205 Neb. 522, 289 N.W.2d 173 (198......