State v. Tucker

Decision Date14 December 2018
Docket NumberNo. S-17-926.,S-17-926.
Citation301 Neb. 856,920 N.W.2d 680
Parties STATE of Nebraska, Appellee, v. Carlos A. TUCKER, Appellant.
CourtNebraska Supreme Court

Joseph D. Nigro, Lancaster County Public Defender, and John C. Jorgensen, for appellant.

Douglas J. Peterson, Attorney General, Erin E. Tangeman, and, on brief, Sarah E. Marfisi, Lincoln, for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J.

Carlos A. Tucker appeals his convictions and sentences for one count of first degree sexual assault of a child and two counts of incest, related to an incident with his girlfriend’s children. Evidence at trial showed that Tucker engaged in sex acts with M.T., age 11, and that M.T. and her two brothers, E.T., age 12, and R.T., age 10, engaged in sex acts upon Tucker’s instructions. The main issue presented by this appeal is whether the district court abused its discretion in admitting "Y-STR" DNA evidence over Tucker’s objections. We conclude that it did not. We further reject Tucker’s contentions that the evidence was insufficient to support his convictions and that the district court imposed excessive sentences. Finding no error, we affirm.

BACKGROUND
Charges Against Tucker.

The State charged Tucker with one count of first degree sexual assault of a child in violation of Neb. Rev. Stat. § 28-319.01(2) (Reissue 2016) and two counts of incest with a person under 18 years of age in violation of Neb. Rev. Stat. § 28-703 (Reissue 2008). The charges arose out of allegations by M.T., E.T., and R.T. that Tucker, their mother’s live-in boyfriend, had engaged in sex acts with M.T. and that M.T. had engaged in sex acts with E.T. and R.T. after being instructed to do so by Tucker.

Pretrial Proceedings.

Prior to trial, Tucker filed a motion in limine seeking to exclude all evidence of Y-STR DNA testing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop , 262 Neb. 215, 631 N.W.2d 862 (2001) ( Daubert / Schafersman ). He also alleged that such evidence would confuse the jury and that its prejudicial effect would outweigh its probative value.

At a pretrial hearing on the motion, the district court heard expert testimony by Shannen Bishop, a DNA analyst at the University of Nebraska Medical Center (UNMC). Bishop testified concerning the Y-STR DNA analysis she conducted on DNA found on the interior of the shorts M.T. wore on the day of the alleged assault. Bishop also explained the origins, mechanics, and limitations of Y-STR DNA testing, as well as the extent to which it is accepted in the scientific community. Bishop testified that Y-STR DNA testing looks only at the male chromosome portion of DNA, while autosomal DNA testing looks at all 23 chromosomes inherited by each person. She dismissed as irrelevant several journal articles submitted by Tucker purporting to discredit the application of Y-STR DNA testing to small ethnic populations. Bishop explained that the articles examined very small, specific sample sizes and that Y-STR DNA science has improved since the articles were published in the early 2000’s. She further pointed out that the U.S. Y-STR database, which she used in her analysis, was not even established when most of the articles were written.

Following the hearing, the district court denied Tucker’s motion in limine. It applied the Daubert / Schafersman analytical framework and determined the reasoning and methodology behind Bishop’s opinions and Y-STR DNA testing to be valid and reliable. The district court further rejected Tucker’s argument that the prejudicial effect of Y-STR DNA evidence outweighed its probative value.

Evidence at Trial.

At the jury trial, M.T., E.T., and R.T. testified that on the day at issue, their mother was at work and Tucker was home with them. The children testified that Tucker, then age 31, invited them to play a series of games in which he would give the winner candy. The games began innocuously enough with the children competing to be the last to laugh, but they progressed to include the children undressing. In one game, the children undressed and Tucker hid their clothes. In another, Tucker instructed the children to switch clothing with one another.

The children testified that after a series of these games, Tucker directed them to the living room. Tucker instructed the children to disrobe completely, and he played pornography on the television. The boys testified that Tucker told them to masturbate. All three children testified that at some point while they were in the living room, Tucker licked M.T.’s vagina, and E.T. and R.T. testified that they followed Tucker’s instructions to do the same. The three children testified that Tucker also directed M.T. to put her mouth on his penis while, M.T. testified, he used his hand to move her head. All three children also testified that M.T. complied with Tucker’s instructions to put her mouth on E.T.’s and R.T.’s penises as well, with R.T. specifying that M.T. "suck[ed]" on their penises. There was also testimony that Tucker placed an electric toothbrush on M.T.’s vagina. The children testified that they saw "white stuff" or "clear stuff" come out of Tucker’s penis, which he wiped off with a tissue or napkin. R.T. observed some of the fluid from Tucker’s penis fall onto the carpet. M.T. and E.T. testified that Tucker referred to their activities as "sex ed."

During cross-examination, which referenced previous interviews, it was revealed that the children’s testimony contained some inconsistencies on such matters as the sequence of the games, the objects of the games, their relative stages of undress during portions of the games, who won each game, the content of the pornography, the sequence of the sex acts, and whether sex acts occurred involving M.T.’s breasts or two persons performing sex acts with M.T. at the same time. However, each child testified that on the day in question, M.T. performed fellatio on Tucker and both brothers upon Tucker’s instructions and that Tucker performed cunnilingus on M.T.

Contrary to Tucker’s instructions to the children not to disclose what happened, the children informed their mother. After law enforcement was alerted, police conducted a search of the residence the children shared with their mother and Tucker. They found candy wrappers for the same type of candy the children reported Tucker had given to them. A stain found on the living room rug tested positive for semen. DNA testing showed that the semen had the same genetic profile as Tucker and that the probability of randomly selecting an unrelated individual with a DNA profile matching the sample was 1 in 752.4 quintillion. The State also introduced Y-STR DNA evidence found on the shorts M.T. wore on the day of the alleged offenses. This evidence is discussed in more detail in the section below.

Tucker testified in his own behalf. He denied engaging in any sex acts with the children.

Y-STR DNA Evidence.

The State called Bishop to testify regarding Y-STR DNA testing. Tucker’s counsel made a continuing objection to the Y-STR DNA testing and any opinions derived from such testing based on Daubert / Schafersman , because such evidence was "inherently unreliable and unfairly prejudicial and otherwise not relevant." The district court overruled the continuing objection.

Bishop testified that she is a forensic science DNA analyst at UNMC and that she had performed Y-STR DNA testing on extractions from the interior of M.T.’s shorts. Bishop stated that Y-STR DNA testing was a method of looking only at the male Y-chromosome. Bishop explained Y-STR DNA testing is often used in sexual assault cases because it can identify a male’s contribution to a sample, such as a vaginal swab, that may have many more cells from a female contributor than a male contributor. Bishop testified that UNMC has performed Y-STR DNA analysis since the early 2000’s and that UNMC has used the particular Y-STR DNA kit used in this case since 2012. Bishop stated that Y-STR DNA analysis is an accepted forensic tool in the forensic analysis community that has been available since the early 2000’s.

Bishop explained that the Y-STR DNA testing process is essentially the same as autosomal DNA testing, but admitted that there is a great deal of difference between the discriminatory power of autosomal DNA testing versus Y-STR DNA testing. She testified that autosomal DNA testing can produce results showing that a particular profile is extremely rare in the population, but because the same Y-STR DNA profile is passed to all males in the same lineage and additionally may be present in unrelated members of the general population, Y-STR DNA testing results will not show that a particular profile is as rare. She acknowledged that a coincidental random match might occur one in several quintillion times with autosomal DNA testing but one in a few thousand times with Y-STR DNA testing.

Bishop testified that Y-STR DNA testing identified Y-STR DNA present on the interior of M.T.’s shorts and that it consisted of a mixture of at least two male individuals. Bishop testified that she could not determine what type of cell contributed the Y-STR DNA profile to M.T.’s shorts or how it was deposited there. However, she stated that the major Y-STR DNA profile she found on the shorts matched Tucker at all of the loci obtained and that, consequently, Tucker was not excluded as a potential major source of the DNA tested.

Bishop testified that to calculate the frequency of Tucker’s Y-STR DNA profile within the population, it was necessary to consult a database. Bishop testified and her report reflected that according to the U.S. Y-STR database, the probability of randomly selecting a second individual with the same Y-STR DNA profile, given that Tucker expresses such a profile, was 1 in 1,842 for African Americans. Tucker does not dispute the he is African American.

Bishop’s report reflected that the U.S. Y-STR database was...

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