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The Nebraska Court of Appeals here affirms this conviction and sentence for first degree sexual assault on a child and one count of child abuse over claims of error regarding protective orders regarding evidence which contained sexual content involving minors. The district court noted that other sensitive discovery items in other cases had been provided to inmates by defendant's counsel (or those in his office) and were still in the possession of those inmates after their trials were over.
State v. Lovette (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Criminal Discovery:
- Discovery in a criminal case is, in the absence of a constitutional requirement, controlled by either a statute or court rule. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
- [Appeal and Error:] Unless granted as a matter of right under the Constitution or other law, discovery is within the discretion of the trial court, whose ruling will be upheld on appeal unless the trial court has abused its discretion in the discovery ruling. State v. Phelps, supra.
Evidence:
- [Appeal and Error:] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. State v. Stark, 272 Neb. 89, 718 N.W.2d 509 (2006). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. State v. Starks, supra. The exercise of judicial discretion is implicit in determinations of relevancy, and a trial court's decision regarding it will not be reversed absent an abuse of discretion. Id.
- [Harmless Error:] Erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact. State v. Anderson, 269 Neb. 365, 693 N.W.2d 267 (2005). ••• In a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant. State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004). Harmless error review looks to the basis on which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. Id.
Date Filed and Case No.: February 20, 2007. No. A-06-281.
Internet Address: http://www.supremecourt.ne.gov/opinions/2007/february/feb20/a06-281.pdf
Court Appealed From: District Court for Hall County: James Livingston, Judge.
Attorneys for the Appeal: Gerard A. Piccolo for Marvin Walker Lovette, appellant. Jon Bruning and James D. Smith for State of Nebraska, appellee.
Judges: Inbody, Chief Judge, and Sievers and Moore, Judges.
Authored By: Moore, Judge.
Summary: Following a jury trial in the district court for Hall County, Marvin Walker Lovette was convicted of three counts of first degree sexual assault on a child and one count of child abuse. The district court sentenced Lovette to consecutive terms of imprisonment of 15 to 20 years on each of the sexual assault convictions and a term of imprisonment, also consecutive, of 1 to 2 years on the child abuse conviction. Lovette appealed his convictions and sentences to the Nebraska Court of Appeals.
Lovette was 58 years old at the time of or shortly after the charged offenses. The victim, S.S. was 13 years old at the time of the charged offenses. S.S. met Lovette through an Internet "chat room" and the contact turned sexual. The first physical meeting between Lovette and S.S. occurred late on a weekend night in the summer of 2004. At trial S.S. testified that she met Lovette a distance from her house and the Lovette then drove to a field and asked S.S. to perform oral sex on him, and S.S. did so. Lovette then drove S.S. to a hotel where they entered a room where Lovette had sexual intercourse with S.S. Lovette's next meeting with S.S. occurred 2 to 3 months after the first meeting. For the second meeting, S.S. again left her house and met Lovette down the road a short way from her house. Lovette again drove S.S. to a hotel where they had sex again. S.S.' mother caught S.S. trying to sneak back into her house after that meeting. A third meeting was arranged and S.S. testified that Lovette's plan involved S.S.' putting sleep medication in her mother's food. Lovette told S.S. that he would drop off the sleep medication in her driveway. The sleep medication dropped off by Lovette was retrieved by S.S.' mother, and the present proceedings were initiated.
The information charged Lovette with three counts of first degree sexual assault on a child , one count of child abuse in violation. The State filed motions for protective orders directing Lovette's attorney and employees of the attorney's office to refrain from providing copies or permanent possession of materials, including certain audiotapes, Internet "chat" transcripts, and photographs seized from Lovette's residence, to Lovette or anyone else. The State's motions were both granted by the district court.
Did the district court err in allowing certain testimony at the hearings on the State's motions for protective orders and in granting both of those motions?
Here, the district court stated that the clear and concise purpose of the criminal discovery statutes of Nebraska, particularly Neb. Rev. Stat. § 29-1912 (Reissue 1995), is to provide the defendant, through discovery, with certain materials which may be in the possession of the government and which may be material to the preparation of the defense. The court noted that the State was not requesting that the court deny access to the evidence to Lovette's counsel for trial preparation, but was seeking only a protective order, which request the court found not to be unreasonable. The Nebraska Court of Appeals said that two statutory provisions were relevant: § 29-1912 and Neb. Rev. Stat. § 29-1915 (Reissue 1995). The Court said that the discovery materials at issue contained sexual content involving minors; the items included photographs of S.S. and of other minor females, some in provocative poses, and the audiotapes of Lovette's phone sex conversations with S.S. Of particular interest to the Court was that sensitive discovery items in other cases had been provided to inmates (by Lovette's counsel or those in his office) and were still in the possession of those inmates after their trials were over was relevant to the question of whether such a result was probable in here. "Lovette's unrestricted access to the items at issue does not seem appropriate, given the nature of the items and the charges against Lovette." The Court could not say that the district court abused its discretion in making this determination or in entering the protective orders. "The terms and conditions of the discovery orders entered by the district court were just, given the facts and circumstances of this particular case."
Whether the district court erred in making certain evidentiary rulings at trial?
- •(a) Playing and Admission of Phone Sex Audiotapes. Audiotapes of phone sex conversations between S.S. and Lovette were played for the jury which were over 2 hours in length. Lovette objected on the basis of evidence rules and foundation. The district court found that this evidence went directly to the child abuse charge (Count IV.) The court's instruction to the jury on the material elements of child abuse included an instruction that "Lovette caused or permitted the minor child S.S. to be placed in a situation to be sexually exploited by allowing, encouraging, or forcing such minor child to solicit for or engage in debauchery." Lovette does not assign any error on appeal to the jury instructions that were given. The Court could not say that the district court abused its discretion in admitting the audiotapes into evidence or in allowing them to be played for the jury. Even if the admission and playing of the audiotapes was in error, any such error was harmless as the record contained sufficient properly admitted evidence to support the jury's finding of guilt as to count IV even without the admission of the audiotapes into evidence.
- •(b) Admission of Lovette's Telephone Bill. One exhibit (89), Lovette's telephone bill for calls made in November and December 2004, shows numerous long-distance telephone calls to S.S.' residence. Lovette objected to the admission of exhibit 89 on the grounds of hearsay, which objections were overruled. "As with Lovette's previous assignment of error, any possible error in the admission of exhibit 89 was harmless" said the Court.
- •(c) Admission of Envelope With Handwritten Notes. Another exhibit (86), an envelope recovered from Lovette's home containing various handwritten notes, Lovette argued was not relevant. The notations on the exhibit included the telephone number for one of S.S.' friends, which number is identified elsewhere in the record. The Court agreed that the notations as a whole on the exhibit did not have a high degree of relevancy to the issues at trial "however, any error by the district court in admitting exhibit 86, which has some minimal degree of relevancy to the issues at trial, was harmless."
- •(d) Exclusion of Juvenile Court Records. Exhibit 106, S.S.' juvenile court records, was excluded from evidence at trial. When exhibit 106 was offered into evidence by Lovette, the State objected that it was cumulative, lacked foundation, and also objected on the basis of § 27-404. The district court sustained the State's objections. The Court agreed with the district court's determination in this regard. During the cross-examination of S.S., Lovette's counsel questioned S.S. about the juvenile charges that were filed against her, the timing of the juvenile petition in relation to the statements S.S. gave police in the present case, and S.S.' being placed on juvenile probation by the county court, all of which S.S. acknowledged occurred. "There is nothing contained in exhibit 106 that would add to or explain further the testimony given by S.S. in this regard" ruled the Court.
Conclusion. The district court did not err in receiving certain evidence at the hearings on the State's motions for protective orders or in granting those motions. Likewise, the court did not err in making the evidentiary rulings complained of by Lovette. AFFIRMED.
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In this non published opinion, the Nebraska Court of Appeals affirms a conviction and sentence for sexual abuse of a child.
State v. Fisher (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Appeal and Error:
- [Evidence:] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006). ••• When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005). In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005). Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. Id.
- [Jury Instructions:] Whether jury instructions given by a trial court are correct is a question of law. State v. Anderson, 269 Neb. 365, 693 N.W.2d 267 (2005). On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. State v. Furrey, 270 Neb. 965, 708 N.W.2d 654 (2006).
- [Sentencing:] Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004). Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004). (Probation:) Whether the sentence imposed is probation or incarceration is a matter within the trial court's discretion, whose judgment denying probation will be upheld in the absence of an abuse of discretion. State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004). An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. Id. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observations of the defendant's demeanor and attitude and all of the facts and circumstances surrounding the defendant's life. Id. Factors a judge should consider in imposing a sentence include the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005).
Evidence:
- [Motion in Limine:] Because overruling a motion in limine is not a final ruling on the admissibility of evidence and therefore does not present a question for appellate review, a question concerning the admissibility of evidence which is the subject of a motion in limine is raised and preserved for appellate review by an appropriate objection during trial. State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002).
- [Prior Conduct:] Prior conduct that forms the factual setting of the crime at issue and is inextricably intertwined with the charged crime is not considered extrinsic evidence of other crimes or bad acts under rule 404(2). See, State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v. Powers, 10 Neb. App. 256, 634 N.W.2d 1 (2001), disapproved on other grounds, State v. Smith, 267 Neb. 917, 678 N.W.2d 733 (2004).
Jury Instructions:
- [Lesser Included Offense:] A court must instruct on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). To determine whether one statutory offense is a lesser-included offense of the greater, we look to the elements of the crime and not to the facts of the case. Id. Under the facts of this case, attempted first degree sexual assault on a child is a lesser-included offense of first degree sexual assault on a child, and Fisher does not dispute that the first part of the test is satisfied. See State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).
Date Filed and Case No.: February 20, 2007. No. A-06-390.
Internet Address: http://www.supremecourt.ne.gov/opinions/2007/february/feb20/a06-390.pdf
Court Appealed From: District Court for Hall County: Teresa K. Luther, Judge.
Attorneys for the Appeal: Charles R. Maser for Mark E. Fisher, appellant. Jon Bruning and Erin E. Leuenberger for State of Nebraska, appellee.
Judges: Inbody, Chief Judge, and Moore, Judge.
Participating on Briefs: Irwin, Judge
Authored By: Moore, Judge.
Summary: This case involved sexual abuse of a child, B.G., by Mark E. Fisher. Fisher met B.G.'s mother, Brenda F., early 1993, and the two moved in together soon after, with B.G. and her older brother. B.G. was about 2 years old at the time. At age 4, B.G. began having problems with bed-wetting. Fisher and Brenda ended their relationship in June 2002. B.G. was about 11 when she began seeing a counselor in January 2005 and disclosed to the counselor in February 2005 that she had been sexually abused by Fisher for several years. The counselor reported the abuse, and law enforcement became involved. The State filed an information charging Fisher with first degree sexual assault on a child. A jury trial was held and B.G., who was 14 years old at the time of trial, testified regarding the alleged abuse as did a number of other witnesses. After the State presented its evidence, Fisher made a motion for directed verdict on the basis of insufficient evidence. The trial court overruled the motion and Fisher called a number of witnesses to testify. At the close of Fisher's evidence, Fisher made another motion for directed verdict based on insufficient evidence, which motion was overruled by the trial court. After both sides had rested, a jury instruction conference was held and Fisher's attorney objected to the proposed jury instruction No. 2, which instructed on the material elements of the charge. The instruction included the elements for the lesser-included charge of attempted first degree sexual assault on a child. Fisher objected to the lesser-included offense which was overruled. The jury found Fisher guilty of attempted first degree sexual assault on a child and Fisher was sentenced to a term of incarceration of 5 to 7 years. Fisher was also ordered to register under the Sex Offender Registration Act. Fisher appealed his conviction and sentence to the Nebraska Court of Appeals.
Did the trial court err in not sustaining Fisher's oral motion in limine arguing that evidence of any prior bad acts of Fisher that occurred outside Hall County was not admissible under rule 404(2)? Fisher's motion referred alleged incidents of abuse which occurred while the four lived in Chapman, Nebraska and an incident at Mahoney State Park. The court overruled Fisher's motion and B.G. testified regarding these incidents at trial. Fisher made a continuing objection to this line of questioning however he did object to this line of questioning at trial. The Court found no error in the admission of evidence of acts occurring outside Hall County, because this conduct was not subject to rule 404(2). "The evidence of sexual contact between Fisher and B.G. outside of Hall County is connected with and explains the circumstances surrounding the crime charged" wrote the Court.
Whether the trial court erred in giving jury instruction No. 2, which instructed on the material elements of the charge? Here, the court added the lesser-included offense of attempted sexual assault on a child to instruction No. 2 and Fisher objected to this instruction at trial. Fisher argued that he was prejudiced by this because the jury was then given the chance to settle on a compromised verdict. The Court determined that the real issue in this case is whether the evidence produced a rational basis for a verdict acquitting Fisher of the offense charged and convicting him of the lesser offense. The Court determines that the trial court correctly found that there is a rational basis for such a conclusion.
Was the evidence was insufficient to sustain Fisher's conviction? Keeping in mind that an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence and that the evidence will be viewed and construed most favorably to the State, the Court found sufficient evidence to support the conviction.
Did the the trial court erred by imposing a 5- to 7-year prison sentence and by not placing Fisher on probation? The Court ruled that Fisher's sentence was within the statutory limits and will not be disturbed unless the sentence was an abuse of judicial discretion. "The trial court clearly referred to the necessary factors in determining Fisher's sentence, and given the seriousness of the conviction, we find no abuse of discretion in Fisher's sentence."
Conclusion: Fisher's assignments of error were ruled to be without merit, and Fisher's conviction and sentence we affirmed. AFFIRMED.
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