State v. Watkins, 43531
| Decision Date | 30 January 1981 |
| Docket Number | No. 43531,43531 |
| Citation | 301 N.W.2d 338,207 Neb. 859 |
| Parties | STATE of Nebraska, Appellee, v. Robert E. WATKINS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Sexual Assault: Witnesses. In a prosecution for sexual assault, the prosecutrix may testify on direct examination, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details. Others may likewise testify in chief to such fact and nature of the complaint, but not as to its details.
2. Criminal Trials: Sexual Assault: Witnesses. One to whom the complaining witness has complained may testify to the fact and nature of the complaint if the complaint was made voluntarily and without unreasonable or inconsistent delay.
3. Sexual Assault: Corroboration. With respect to corroboration, the rule is that it is not essential that the prosecutrix be corroborated by the testimony of other witnesses as to the particular act constituting the offense. It is sufficient if she is corroborated as to material facts and circumstances which tend to support her testimony and from which, together with her testimony as to the principal fact, the inference of guilt may be drawn.
4. Sexual Assault: Corroboration. In a trial for statutory rape, sexual assault admissions by the defendant showing that he planned and procured an opportunity to commit the act charged, with evidence of familiarities between them, furnishes sufficient corroboration of the victim's positive testimony to support a judgment of conviction.
5. Sexual Assault: Corroboration: Arrest. While flight, in and of itself, is frequently ambiguous, when coupled with other facts and circumstances it may be sufficient to constitute corroboration of the testimony of the prosecutrix in cases involving sexual assault.
6. Judgments: Juries: Appeal and Error. In determining the sufficiency of the evidence corroborating the testimony of the prosecutrix, the resolution of conflicts in the evidence, the credibility of the witnesses, and the determination of the plausibility of explanations or the weighing of such evidence are matters for the jury and must be sustained on appeal if, taking the view most favorable to the State, there is sufficient evidence to support the verdict.
Matthew Hanson, Crete, for appellant.
Paul L. Douglas, Atty. Gen., and Shanler D. Cronk, Asst. Atty. Gen., Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
Robert E. Watkins, defendant and appellant herein, appeals to this court from his conviction by the District Court of Saline County, Nebraska, of first degree sexual assault in violation of Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1979). The case was tried before a jury on March 20, 1980, which found the defendant guilty of the sexual assault of his stepdaughter, a minor child born December 28, 1968. The court sentenced him to a term of from 1 to 5 years, determined that the defendant was a mentally disordered sex offender, and committed him to the Lincoln Regional Center until such time as it is determined that the defendant is no longer a mentally disordered sex offender or until he has received a maximum benefit of treatment.
The defendant's principal assignments of error on appeal to this court are that the District Court erred in allowing the prosecutrix and her mother to testify as to the nature and details of the sexual assault complained; and by allowing the parties to testify to the facts and details of an alleged sexual assault which occurred on December 31, 1979.
At the trial the complaining witness testified as to her sexual molestation by the defendant, age 33, shortly after Thanksgiving of 1979. When asked why she did not tell her mother about the assault until after Christmas, the witness replied: "... because he told me if I told, he would go to jail and I would go to a foster home and I'd never get to see my mother or speak to her again.
She was also permitted to testify in detail as to a subsequent sexual assault by the defendant that occurred on the evening of December 31, 1979, which was the anniversary of the marriage of her mother and the defendant. The witness was asked whether she talked with her mother after the second assault, and she testified that the following conversation took place in the evening of January 1, 1980:
Mrs. Watkins testified that upon learning of the assault upon her daughter she went to the Crete police station and filed a complaint against her husband. Upon her return home, the victim told her mother about the sexual assault which occurred shortly after Thanksgiving. Mrs. Watkins testified that she then confronted her husband.
Mrs. Watkins further testified that after she put the girls to bed in her room, she stayed up and talked with the defendant until about 2 a. m. The following morning, January 2, 1980, Chief James Roche of the Crete police department came to the Watkins house to inquire further as to Mrs. Watkins' complaint. Mrs. Watkins testified that when she went to look for her husband, he was not in the house and the car was missing.
Chief Roche testified that after his interview with the victim and Mrs. Watkins, he tried to locate the defendant at several locations throughout the city. He stated that the Watkins car was found abandoned several blocks from the defendant's residence. Chief Roche testified that he contacted the manager of the bus station in Crete, and was told that a man matching the defendant's description had departed on the morning bus en route to Denver, Colorado. He was asked by the prosecutor: "What did you do then?"
The rule is well established in this state that in a prosecution for sexual assault, the prosecutrix may testify in chief on direct examination, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details; and that others may likewise testify in chief to such fact and nature of the complaint, but not as to its details. State v. Chaney, 184 Neb. 734, 171 N.W.2d 787 (1969); Sherrick v. State, 157 Neb. 623, 61 N.W.2d 358 (1953).
This court has also stated that one to whom the complaining witness has complained may testify to the fact and nature of...
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...but not as to its details...." (Emphasis in original.) State v. Evans, 212 Neb. 476, 481, 323 N.W.2d 106, 109 (1982); State v. Watkins, 207 Neb. 859, 301 N.W.2d 338 (1981); State v. Chaney, 184 Neb. 734, 171 N.W.2d 787 (1969); Perry v. State, 163 Neb. 628, 80 N.W.2d 699 (1957); Sherrick v. ......
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