State v. McMillion ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/07/2016 12:10 PM CDT
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. McMILLION
Cite as 23 Neb. Ct. App. 687
State of Nebraska, appellee, v.
Candice M. McMillion, appellant.
___ N.W.2d ___
Filed March 1, 2016. No. A-14-1166.
1. Witnesses: Testimony: Evidence. If a witness uses a writing to refresh
his or her memory for the purpose of testifying, either before or while
testifying, an adverse party is entitled to have it produced at the hearing,
to inspect it, to cross-examine the witness thereon, and to introduce into
evidence those portions which relate to the testimony of the witness.
2. Criminal Law: Mental Health: Minors. No professional counselor-
patient privilege exists in criminal prosecutions for injuries to children.
3. ____: ____: ____. The statutory privilege between patient and profes-
sional counselor is not available in a prosecution for child abuse.
4. Appeal and Error. An error is harmless when no substantial miscar-
riage of justice occurred as a result of the error.
5. Criminal Law: Trial: Courts: Appeal and Error: Words and Phrases.
Harmless error exists in a bench trial of a criminal case when there is
some incorrect conduct by the trial court which, on review of the entire
record, did not materially influence the court in a judgment adverse to a
substantial right of the defendant.
6. Constitutional Law: Pretrial Procedure. Confrontation Clause
rights are trial rights that do not extend to pretrial hearings in state
proceedings.
7. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
8. Constitutional Law: Search and Seizure: Standing. A “standing”
analysis in the context of search and seizure is nothing more than an
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inquiry into whether the disputed search and seizure has infringed an
interest of the defendant in violation of the protection afforded by the
Fourth Amendment.
9. Constitutional Law: Search and Seizure. The test used to determine
if a defendant has an interest protected by the Fourth Amendment is
whether the defendant has a legitimate or justifiable expectation of pri-
vacy in the premises.
10. ____: ____. Two inquiries are required to determine if a defendant has
a legitimate expectation of privacy in the premises. First, an individual
must have exhibited an actual (subjective) expectation of privacy, and
second, the expectation must be one that society is prepared to recognize
as reasonable.
11. ____: ____. In the context of search and seizure, with regard to the con-
tent of cell phones, an accused must first establish that he personally has
a legitimate expectation of privacy in the object that was searched.
12. Constitutional Law: Search and Seizure: Proof. An individual may
demonstrate infringement of his or her own legitimate expectation of
privacy by showing that he owned the premises or that he occupied
them and had dominion and control over them based on permission from
the owner.
13. Constitutional Law: Search and Seizure: Words and Phrases. Factors
relevant to the determination of standing in the context of search and
seizure include historical use of the property or item, ability to regulate
access, the totality of the circumstances surrounding the search, the
existence or nonexistence of a subjective anticipation of privacy, and the
objective reasonableness of the expectation of privacy considering the
specific facts of the case.
14. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
15. Criminal Law: Public Officers and Employees: Attorney and Client.
A public defender’s duty is to represent all indigent felony defendants.
16. Constitutional Law: Criminal Law: Right to Counsel. An indigent
criminal defendant’s Sixth Amendment right to counsel does not include
the right to counsel of the indigent defendant’s own choice.
17. Constitutional Law: Right to Counsel: Conflict of Interest. A Sixth
Amendment right to effective assistance of counsel includes repre-
sentation free of conflicts of interest which adversely affect the law-
yer’s performance.
18. Right to Counsel: Conflict of Interest: Appeal and Error. Whether
a defendant’s lawyer’s representation violates a defendant’s right to
representation free from conflicts of interest is a mixed question of
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law and fact that an appellate court reviews independently of the lower
court’s decision.
19. Attorney and Client: Conflict of Interest. The fact that an attorney has
other clients, including one who would be a State witness and testify at
trial, is not sufficient in and of itself to constitute a conflict of interest.
20. Effectiveness of Counsel: Conflict of Interest: Words and Phrases.
The phrase “conflict of interest” denotes a situation in which regard
for one duty tends to lead to disregard for another or where a lawyer’s
representation of one client is rendered less effective by reason of his or
her representation of another client.
21. Effectiveness of Counsel: Conflict of Interest: Proof. A defendant
who shows that a conflict of interest actually affected the adequacy of
his or her representation need not demonstrate prejudice, but such con-
flict of interest must be shown to have resulted in conduct by counsel
that was detrimental to the defense.
22. Attorney and Client: Conflict of Interest. Where no direct or concur-
rent representation is involved, there is no actual conflict of interest.
23. Attorney and Client: Conflict of Interest: Informed Consent. A
lawyer who formerly represented a client in a matter is prohibited from
thereafter representing another person in the same or a substantially
related matter in which that person’s interests are materially adverse to
the interests of the former client unless the former client gives informed
consent, confirmed in writing.
24. Juries. A jury must be sequestered when a case is finally submitted to
the jury.
25. Criminal Law: Trial: Juries: Appeal and Error. Whether a jury is to
be kept together before submission of the cause in a criminal trial is left
to the discretion of the trial court.
26. ____: ____: ____: ____. To warrant reversal, denial of a motion to
sequester the jury before submission of the cause must be shown to have
prejudiced the defendant.
27. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is
within the trial court’s discretion, and an appellate court will not disturb
its ruling unless the court abused its discretion.
28. Prosecuting Attorneys: Trial. Prosecutors are charged with the duty of
conducting criminal trials in such a manner that an accused may have a
fair trial.
29. Constitutional Law: Prosecuting Attorneys: Trial. A prosecutor’s
comment on a defendant’s silence in the defendant’s trial is a viola-
tion of an accused’s right to remain silent under the 5th and 14th
Amendments to the U.S. Constitution and under article I, § 12, of the
Nebraska Constitution.
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30. ____: ____: ____. The prohibition against a prosecutor’s comment on
a defendant’s right to remain silent applies throughout a trial, includ-
ing the opening statement and closing argument during the defend­
ant’s trial.
31. ____: ____: ____. In an opening statement for a jury trial, a prosecu-
tor’s comment concerning the necessity of the defendant’s testimony or
an expression concerning the plausibility or credibility of anticipated
testimony from a defendant violates an accused’s right to remain silent
at trial.
32. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is
necessary to grant a mistrial for prosecutorial misconduct, the defend­
ant must show that a substantial miscarriage of justice has actually
occurred.
33. Trial: Parties. A party is allowed considerable latitude in making an
opening statement.
34. Trial: Prejudicial Statements. The impact of any comment made at
trial depends on the atmosphere at trial.
35. Motions for Mistrial: Prejudicial Statements: Appeal and Error. In
ruling on a motion for mistrial, the trial judge is in a better position to
measure the impact a comment has on a jury, and his or her decision will
not be overturned unless clearly erroneous.
36. Trial: Evidence. In an opening statement, it is permissible for the State
to discuss what the evidence may show.
37. Appeal and Error. Errors that are assigned but not argued will not be
addressed by an appellate court.
38. Trial: Jurors. Both when determining whether a venireperson should
be removed for cause and when determining whether a juror should be
retained after the commencement of trial, the retention or rejection of a
juror is a matter of discretion for the trial court.
39. Criminal Law: Jury Misconduct: Proof. In a criminal case, jury mis-
conduct must be demonstrated by clear and convincing evidence.
40. ____: ____: ____. Where the jury misconduct in a criminal case
involves juror behavior only, the burden to establish prejudice rests on
the party claiming the misconduct.
41. Trial: Evidence: Appeal and Error. On appeal, the defendant may not
assert a different ground for his or her objection to the admission of
evidence than was offered to the trier of fact.
42. Trial: Expert Witnesses: Appeal and Error. An objection on the basis
of insufficient foundation is a general objection and fails to preserve a
challenge on appeal to admissibility of expert testimony.
43. Trial: Evidence. Whether there is sufficient foundation evidence for
the admission of physical evidence must necessarily be determined on a
case-by-case basis.
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44. Trial: Evidence: Appeal and Error. A trial court’s determination of
the admissibility of physical evidence will not ordinarily be overturned
except for an abuse of discretion.
45. Trial: Evidence: Photographs. Photographic evidence is admissible
when it is shown that it is a correct reproduction of what it purports to
show, and such showing may be made by any evidence that bears on
whether the photographic evidence correctly depicts what it purports
to represent.
46. Trial: Evidence: Photographs: Witnesses. Under the illustrative model
of authenticating photographic evidence, a photograph, motion picture,
videotape, or other recording is viewed merely as a graphic portrayal of
oral testimony and is admissible only when a witness testifies that it is
a correct and accurate representation of facts that the witness person-
ally observed.
47. Criminal Law: Pretrial Procedure: Appeal and Error. Unless granted
as a matter of right under the Constitution or other law, discovery is
within the discretion of a trial court, whose ruling will be upheld on
appeal unless the trial court has abused its discretion.
48. Constitutional Law: Criminal Law: Parties. The federal Constitution
guarantees criminal defendants a meaningful opportunity to present a
complete defense.
49. Parties: Testimony: Rules of Evidence. A defendant does not have an
unfettered right to offer testimony that is incompetent, privileged, or
otherwise inadmissible under standard rules of evidence.
50. Criminal Law: Evidence. The defendant’s right to compulsory process
is itself designed to vindicate the principle that the ends of criminal jus-
tice would be defeated if judgments were to be founded on a partial or
speculative presentation of the facts.
51. Evidence: Testimony. Discovery, like cross-examination, minimizes the
risk that a judgment will be predicated on incomplete, misleading, or
even deliberately fabricated testimony.
52. Evidence. The State’s interest in protecting itself against an 11th-hour
defense is merely one component of the broader public interest in a full
and truthful disclosure of critical facts.
53. Pretrial Procedure: Appeal and Error. Trial courts have broad discre-
tion with respect to sanctions involving discovery procedures.
54. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
55. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
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evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
56. Jury Instructions: Appeal and Error. In reviewing a claim of preju-
dice from jury instructions given or refused, an appellate court must
read the instructions together, and if, taken as a whole, they correctly
state the law, are not misleading, and adequately cover the issues sup-
ported by the pleadings and evidence, there is no prejudicial error.
57. Jury Instructions. A trial court is not required to give a proffered
instruction which unduly emphasizes a part of the evidence in the case.
58. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
59. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact.
60. Criminal Law: Evidence: Appeal and Error. The relevant question
when an appellate court reviews a sufficiency of the evidence claim is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
61. Sexual Assault: Words and Phrases. A person commits first degree
sexual assault of a child when he or she subjects another person under
12 years of age to sexual penetration and the actor is at least 19 years of
age or older.
62. Sexual Misconduct: Words and Phrases. Any person who knowingly
engages in sexual penetration with his or her child commits incest.
63. Judicial Notice: Records: Rules of Evidence. As a subject for judi-
cial notice, existence of court records and certain judicial action
reflected in a court’s record are, in accordance with Neb. Rev. Stat.
§ 27-201(2)(b) (Reissue 2008), facts which are capable of accurate and
ready determination by resort to sources whose accuracy cannot be rea-
sonably questioned.
64. Judicial Notice: Records: Collateral Estoppel: Res Judicata. A court
may judicially notice existence of its records and the records of another
court, but judicial notice of facts reflected in a court’s records is subject
to the doctrine of collateral estoppel or of res judicata.
65. Judicial Notice. Judicial notice may be taken at any stage of the
proceeding.
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STATE v. McMILLION
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66. Judicial Notice: Rules of Evidence: Words and Phrases. A proceed-
ing under Neb. Rev. Stat. § 27-201(6) (Reissue 2008) includes judicial
activity which occurs after commencement of an action and includes
judicial action in an appeal.
67. Parental Rights. A natural parent who relinquishes his or her rights to a
child by a valid written instrument gives up all rights to the child at the
time of the relinquishment.
68. Parental Rights: Adoption. After a decree of adoption has been entered,
the natural parents of an adopted child shall be relieved of all parental
duties and responsibilities for the child and shall have no rights over
the child.
69. Moot Question: Words and Phrases. An issue is moot when it seeks to
determine a question which does not rest upon existing facts or rights,
in which the issues presented are no longer alive.
70. Sentences. Generally, it is within a trial court’s discretion to direct that
sentences imposed for separate crimes be served either concurrently or
consecutively.
71. ____. A court is required to order consecutive sentences only for those
specific crimes that require a mandatory minimum sentence to be served
consecutively to other sentences imposed.
72. Convictions: Sentences. If the conviction requires only a mandatory
minimum sentence but the statute does not mandate that the minimum
sentence run consecutively to other sentences, the decision as to whether
to run the sentences consecutively or concurrently is left to the sentenc-
ing court.
73. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
74. Sentences. The test of whether consecutive sentences may be imposed
under two or more counts charging separate offenses, arising out of the
same transaction or the same chain of events, is whether the offense
charged in one count involves any different elements than an offense
charged in another count and whether some additional evidence is
required to prove one of the other offenses.
Appeal from the District Court for Sarpy County: David K.
A rterburn, Judge. Affirmed.
Thomas P. Strigenz, Sarpy County Public Defender, and
Colleen Hassett for appellant.
Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
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STATE v. McMILLION
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Pirtle, R iedmann, and Bishop, Judges.
R iedmann, Judge.
I. INTRODUCTION
Candice M. McMillion was convicted in the Sarpy County
District Court of first degree sexual assault of a child under 12,
incest, two counts of visual depiction of sexually explicit con-
duct, and child abuse. She appeals, assigning numerous errors
with respect to her convictions and sentences. We affirm.
II. BACKGROUND
1. Events Surrounding Charges
McMillion has been married to her husband, Caleb
McMillion (Caleb), since March 2007. Their son, S.M., was
born in August 2007. In late September 2012, after getting into
an argument with Caleb, McMillion told her father-in-law that
she had “put her mouth on [S.M.] a couple of times” and that
she did so, in order to save her marriage, because Caleb “was
into that.” McMillion told him that Caleb had done similar acts
to S.M. Shortly after their conversation ended, McMillion sent
a text message to her mother-in-law and recanted. She said that
she had lied and made up what she said to hurt Caleb. S.M.
underwent a forensic interview at the time but did not disclose
any abuse. He was removed from McMillion and Caleb’s home
in early October, however, due to domestic violence issues, and
was placed with his paternal grandparents.
Because S.M. was acting out and displaying inappropriate
behaviors, in January 2013, he began attending weekly therapy
sessions with Amanda Gurock, a licensed independent mental
health practitioner. After the first session, Gurock diagnosed
S.M. with adjustment disorder with a disturbance of mixed
emotions and conduct and anxiety disorder, not otherwise
specified. Gurock also diagnosed S.M. with anxiety disorder
because he was fidgety, had a lot of nervousness, had fears of
different situations, and had bad dreams.
On February 18, 2013, S.M. disclosed to Gurock that he
had been sexually abused by McMillion and Caleb numerous
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times between the ages of 3 and 5. He specifically described
the abuse, including that McMillion performed oral sex on
him and forced him to do the same to her. S.M. underwent
a forensic interview at Project Harmony, a child advocacy
center, on February 20. Based on the information S.M. pro-
vided to Gurock and the forensic interviewer, McMillion was
arrested and ultimately charged with count I, first degree
sexual assault of a child under 12; count II, incest; counts III
and IV, visual depiction of sexually explicit conduct; and count
V, child abuse. Caleb was also arrested and charged with simi-
lar offenses.
2. Pretrial Motions
(a) Motion in Limine
Prior to trial, McMillion filed a motion in limine to prohibit
the State from eliciting testimony of the statements S.M. made
to Gurock and the Project Harmony interviewer. At a hearing
on the motion, Gurock testified that she takes notes during her
sessions with S.M. to remind herself what they talked about.
The notes that are kept in the official file are general due to
concerns about confidentiality, and they generally indicate
what occurred at each session. However, Gurock also takes
handwritten notes in a notebook where she writes down “a
couple of words,” and those notes are not kept in the official
file. Gurock indicated that she reviewed her handwritten notes
in preparation of giving testimony at the hearing.
Based on Gurock’s admission that she refreshed her recollec-
tion with her handwritten notes prior to testifying, McMillion
requested during the hearing that the court order Gurock to
turn over her notes. The court observed that there had been no
refreshing of recollection in the courtroom, and the notes had
not been utilized during testimony. Thus, the court declined to
order Gurock to produce her notes.
In a later written order, the district court ruled on McMillion’s
motion in limine, finding that the statements S.M. made during
therapy sessions fall under an exception to the hearsay rule and
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are therefore admissible. The court also found that the state-
ments S.M. made during the Project Harmony interview would
be admissible only if S.M. testified at trial.
(b) Motion to Suppress
At the time Caleb was arrested, police seized the cell phone
he had with him, which contained a memory card. Police
applied for and received a search warrant for the phone and its
memory card and ultimately searched them.
McMillion filed a motion to suppress the search of the cell
phone and memory card. At the suppression hearing, Det. Roy
Howell testified that after receiving the search warrant, he
made a bit-by-bit physical copy of the memory card contained
in the phone. He explained that the file structure of the type
of memory card in Caleb’s phone is specific to the phone. On
the memory card taken out of Caleb’s phone, Howell found a
“Mobo folder,” which is associated with an application that
was downloaded onto the phone. The Mobo folder is specific
to Caleb’s phone. Inside the Mobo folder, Howell discovered
two photographs of McMillion performing oral sex on S.M.
The photographs are still shots derived from two videos, but
the videos were never recovered.
Caleb testified at the suppression hearing that he and
McMillion separated in September 2012 but maintained fre-
quent contact during their separation. They jointly owned
approximately five similar memory cards, but from the time
they separated until their arrests, Caleb had no access to
the memory card in McMillion’s cell phone and she had no
access to his phone’s memory card. He considered the mem-
ory card found in his phone at the time of arrest, from which
the photographs were recovered, to be his memory card.
That particular memory card contained data associated with
Caleb’s e-mail account and other personal folders and appli-
cations that he manually installed on his phone. McMillion
and Caleb shared a joint cell phone account, and both paid
the bill. Before they separated, McMillion knew the passcode
to Caleb’s phone “for the most part,” but after separation,
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STATE v. McMILLION
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Caleb changed his passcode often because he did not want
McMillion to know it.
McMillion also testified at the suppression hearing and said
that even after she and Caleb separated, she still had the oppor-
tunity to use his cell phone. She also acknowledged telling her
grandmother that she did not know what was on Caleb’s phone
because he always had it locked and hid it from her. However,
she testified that even if she did not know Caleb’s passcode,
she was able to bypass it and access his phone by inputting his
e-mail address and changing his passcode.
In its subsequent order, the district court observed that the
search warrant authorized the search of the cell phone and its
memory card. The phone and memory card are specifically
described in the warrant as belonging to Caleb, from whom
they were seized at the time of his arrest. The memory card
contained items specifically belonging to Caleb but no items
belonging to McMillion. The court therefore determined that
McMillion lacked standing to challenge the search of Caleb’s
phone and memory card, because she did not have a legitimate
expectation of privacy in Caleb’s phone or memory card. The
motion to suppress was therefore denied.
(c) Motion to Withdraw
Before trial commenced, the State filed a motion to endorse
additional witnesses, including two individuals that had been
represented by McMillion’s trial counsel’s office. McMillion’s
trial counsel then filed a motion to withdraw based on a
potential conflict of interest. At a hearing on the motion, he
indicated that he believed he had a conflict of interest. The
court received into evidence affidavits from both potential
witnesses waiving attorney-client privilege and waiving any
conflict of interest. McMillion and the State also stipulated
that there was no relationship between the witnesses’ cases and
McMillion’s case.
The district court found that there was no evidence
McMillion’s counsel would have divided loyalties which
would prevent him from providing effective representation
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to McMillion and that there was nothing about the witnesses
which would detract from his ability to zealously represent
McMillion. Therefore, the motion to withdraw was denied.
(d) Motion to Sequester Jury
After the jury had been selected but before opening state-
ments or presentation of any evidence, McMillion moved
to sequester the jury during the pendency of trial. The court
denied the motion.
(e) Motion for Mistrial
During opening statements, the State highlighted McMillion’s
explanations and how her story changed over time. It explained
that McMillion initially denied sexually assaulting S.M., but
that once the photographs were found on Caleb’s cell phone,
she could not deny it happened, and her story changed. The
prosecutor then said:
It could no longer be it never happened. I was making
it all up. It then became other stories and other reasons
why this may have happened. She may take the stand and
she may try and tell you those stories, those many stories
that began after the evidence was found.
At the conclusion of the State’s opening statement, McMillion
moved for mistrial on the ground that the State improperly
referenced McMillion’s taking the stand, which violated her
constitutional right to remain silent. The motion was denied.
(f) Motion to Remove Juror
After opening statements but prior to the presentation of evi-
dence, the mother of a juror e-mailed a member of the county
attorney’s office. The mother indicated that her daughter had
informed her that the daughter had been selected for a jury, and
the mother asked about the daughter’s employer’s responsibil-
ity to pay her while she was serving on the jury. The member
of the county attorney’s office explained to the judge that
the mother was an acquaintance of hers and that she did not
respond to the e-mail.
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Based on the correspondence, McMillion asked that the
juror be removed from the panel and replaced with an alter-
nate. The district court observed that the concern seemed to
be that of the mother and that there was no indication in the
e-mail that there was any concern expressed by the juror as
to the impact of jury service on her employment. The court
noted that it had admonished the jurors that they could dis-
close that they were on a jury but could not talk about the
case, and there was no indication in the e-mail that that
responsibility was breached. The court also noted that the
parties discussed during voir dire this juror’s employment
and acquaintance with the county attorney, and no motion to
strike was made. Therefore, the court denied the request to
remove the juror.
3. Trial
Witnesses at trial testified regarding the events leading up
to McMillion’s arrest. Caleb testified that he had entered into
a plea agreement for his charges and volunteered to testify
against McMillion to prevent S.M. from being called to testify.
He described an incident in June 2012 where he witnessed
McMillion performing oral sex on S.M. and recorded a video
of it on his cell phone. Caleb also described other pornographic
videos he made with McMillion and said that she voluntarily
participated in them.
S.M.’s paternal grandparents testified about S.M.’s behavior
when he first came to live with them in October 2012. S.M.
was exhibiting inappropriate sexual behaviors at preschool and
was also violent. S.M. was afraid of McMillion and frequently
expressed fear that she would come to hurt his grandparents
and “get him.”
Gurock testified regarding her role as S.M.’s counselor.
She outlined her original diagnoses for him and explained
that after he disclosed the sexual abuse to her, she changed
his diagnoses to posttraumatic stress disorder, mood disorder
not otherwise specified, and attention deficit hyperactivity
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disorder. She also explained that it is normal for children
to delay reporting sexual abuse, in part because they wait
until they are comfortable with someone and trust him or her
enough to say something.
In S.M.’s fifth session with Gurock, he disclosed the sexual
abuse, describing the events in detail. S.M. said the sexual
abuse occurred when he was between the ages of 3 and 5,
when he lived with McMillion and Caleb. He said the abuse
happened many times in their bedroom. S.M. reported that
Caleb told him not to talk about “inappropriate things,” so
he was not supposed to tell anyone or he would get soap in
his mouth.
McMillion testified in her own defense. She said that she
and Caleb had been together since she was 18 years old and
that he was physically and verbally abusive during their rela-
tionship. Much of the abuse centered on sexual activity which
included other partners and participation in “fetish videos.”
McMillion testified that she acquiesced because Caleb threat-
ened to find someone else if she refused and she wanted to
make him happy. McMillion felt that she was controlled by
Caleb and that she could not say no or stand up for herself.
McMillion admitted that the photographs on Caleb’s cell
phone accurately depicted what occurred, but said she did not
remember doing what was depicted. She also admitted telling
her father-in-law that she and Caleb had sexually assaulted
S.M. and that she had done so to save her marriage, and
she admitted to immediately recanting her claims. McMillion
acknowledged writing letters to friends and family from jail
indicating that she has no memory of the assaults and telling
them that she had been drugged.
A psychiatrist who evaluated McMillion in November 2013
concluded that she was a victim of “spousal abuse, sexual”
based upon Caleb’s manipulating her through verbal and physi-
cal abuse to perform sexual acts she did not want to do. The
psychiatrist opined McMillion had basically abdicated con-
trol to Caleb, knew that she could be physically and verbally
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abused, and knew that things could get worse for her if she
did not do what she was told. The psychiatrist concluded that
McMillion was afraid not to do what she was told and that
a large number of her actions, in his opinion, were there-
fore involuntary.
The jury also heard testimony from a licensed clinical psy-
chologist who evaluated McMillion. He diagnosed her with
posttraumatic stress disorder with dissociative features. He
believed that she has had that diagnosis since her late teens
or early 20’s. In his opinion, she had significant and notable
behavioral health problems throughout the entirety of her rela-
tionship with Caleb and subjugated herself to him and his coer-
cion and manipulation.
On rebuttal, the State presented the testimony of a forensic
psychiatrist who evaluated McMillion to determine whether
she suffered from any type of dissociation. He explained that
dissociation generally deals with being in a different personal-
ity, like a multiple personality, assuming a different identity
sometimes. McMillion never mentioned any dissociative expe-
riences to the forensic psychiatrist, and he never saw any signs
of dissociation in her. Thus, he did not believe she suffered
from any type of dissociation.
The State also presented rebuttal testimony from two wit-
nesses who had been incarcerated with McMillion in April
2014. Both witnesses testified that McMillion told them she
engaged in the activity for which she was charged to please
Caleb, but that her defense was that she had been drugged. One
of the witnesses testified McMillion said that Caleb was sup-
posed to have thrown his cell phone in the river and that if he
had, there would be no evidence and she would not be in the
situation she was in.
4. Jury Instructions
At the jury instruction conference, McMillion tendered three
proposed jury instructions. The court declined to give her
instructions as proposed.
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5. Verdict and Sentencing
The jury ultimately convicted McMillion of all five counts.
At sentencing, the parties and district court discussed whether
the law required that the court order consecutive sentences.
The district court found that regardless of the requirements, the
nature of the offenses in the present case merited consecutive
sentences. McMillion was then sentenced to imprisonment as
follows: on count I, 30 to 50 years; on count II, 1 to 5 years;
on count III, 3 to 5 years; on count IV, 3 to 5 years; and on
count V, 2 to 5 years. The district court orally stated that S.M.
was not required to have any contact with McMillion while she
is serving her sentence, but the written sentencing order pro-
hibited McMillion from having contact with S.M. McMillion
timely appeals to this court.
Further factual details will be set forth below, as relevant to
McMillion’s specific assignments of error.
III. ASSIGNMENTS OF ERROR
McMillion alleges, consolidated and restated, that the dis-
trict court erred in (1) failing to order Gurock to turn over her
office notes; (2) denying her motion to suppress; (3) denying
her trial counsel’s motion to withdraw; (4) denying her motion
to sequester the jury; (5) denying her motion for mistrial dur-
ing opening statements; (6) denying her request to remove
the juror; (7) allowing Howell to give an expert opinion; (8)
receiving the photographs into evidence over her objection;
(9) granting the State’s motion in limine as to McMillion’s
treating physician, Dr. Ashley Falk; (10) failing to give her
proposed jury instructions; (11) finding sufficient evidence to
sustain the convictions; and (12) sentencing her improperly
and excessively.
IV. ANALYSIS
1. Gurock’s Office Notes
McMillion first argues that the district court erred in fail-
ing to require Gurock to produce her office notes when she
testified that she reviewed them prior to testifying and they
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refreshed her recollection as to some of the disclosures S.M.
made to her. We agree, but find the error was harmless and
therefore does not constitute reversible error.
[1] If a witness uses a writing to refresh his or her memory
for the purpose of testifying, either before or while testifying,
an adverse party is entitled to have it produced at the hear-
ing, to inspect it, to cross-examine the witness thereon, and to
introduce into evidence those portions which relate to the testi-
mony of the witness. Neb. Rev. Stat. § 27-612 (Reissue 2008).
Section 27-612 requires production of not only documents
used to refresh recollection in the courtroom while the wit-
ness is testifying, but also those writings the witness reviewed
prior to giving testimony. Thus, the district court erred in the
basis upon which it denied McMillion’s request for access to
Gurock’s notes.
[2,3] On appeal, the State argues that the notes were privi-
leged under Neb. Rev. Stat. § 27-504 (Reissue 2008), and
therefore not subject to disclosure. Section 27-504 provides a
privilege for professional counselor-patient communications.
However, McMillion was being prosecuted for, in part, first
degree sexual assault of a child and child abuse. Under
§ 27-504(4)(d), no privilege exists in criminal prosecutions
for injuries to children. Neb. Rev. Stat. § 28-707(2) (Reissue
2008) specifically states that the statutory privilege between
patient and professional counselor is not available in a pros-
ecution for child abuse. Therefore, these records were not
privileged and the court erred in refusing to order that they
be produced.
[4,5] But rejection of McMillion’s request for access to
Gurock’s notes was harmless error inasmuch as no “‘sub-
stantial miscarriage of justice’” occurred as a result of the
error. See State v. Schroder, 232 Neb. 65, 71, 439 N.W.2d
489, 493 (1989). Accord Neb. Rev. Stat. § 29-2308 (Reissue
2008). Harmless error exists in a bench trial of a criminal case
when there is some incorrect conduct by the trial court which,
on review of the entire record, did not materially influence
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the court in a judgment adverse to a substantial right of the
defendant. State v. Schroder, supra. The erroneous ruling in
the present case occurred during a pretrial hearing, which,
like a bench trial, is presided over by the court only with no
jury present.
Here, the issue arose during a hearing on McMillion’s
motion in limine, which requested that the court prohibit the
State from introducing into evidence at trial S.M.’s statements
to Gurock. McMillion argues on appeal, “At a minimum,
[McMillion] was placed at a disadvantage in not being able to
review those notes and at worst, there has been a violation of
[her] 6th Amendment right to confrontation.” Brief for appel-
lant at 21.
We disagree because the court’s focus in denying the motion
in limine was not on the substance of S.M.’s statements, which
was the focus of Gurock’s notes, but, rather, on the context in
which the statements were made. In other words, the district
court refused to exclude S.M.’s statements because it found
they fell under the hearsay exception which allows into evi-
dence statements made for the purpose of medical diagnosis
or treatment. Thus, the content of Gurock’s notes would not
have materially influenced the court’s ruling on the motion
in limine.
[6] We also reject McMillion’s argument that failure to pro-
vide the notes violated her constitutional right to confrontation.
Confrontation Clause rights are trial rights that do not extend
to pretrial hearings in state proceedings. State v. Daly, 278
Neb. 903, 775 N.W.2d 47 (2009). And in any event, McMillion
was allowed to fully cross-examine Gurock at the hearing
regarding the context of the statements and her notes without
limitation or interference from the court. See State v. Schreiner,
276 Neb. 393, 754 N.W.2d 742 (2008) (Confrontation Clause
guarantees opportunity for effective cross-examination, not
cross-examination that is effective in whatever way and to
whatever extent the defense might wish). Accordingly, we find
no reversible error.
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2. Denial of Motion to Suppress
McMillion argues that the district court erred in denying her
motion to suppress for three reasons. First, she claims the court
erroneously concluded that she lacked standing to challenge
the search of Caleb’s cell phone and memory card.
[7] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. State v. Tyler, 291 Neb. 920, 870 N.W.2d
119 (2015).
[8-10] A “standing” analysis in the context of search and sei-
zure is nothing more than an inquiry into whether the disputed
search and seizure has infringed an interest of the defendant in
violation of the protection afforded by the Fourth Amendment.
State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011). The test
used to determine if a defendant has an interest protected by
the Fourth Amendment is whether the defendant has a legiti-
mate or justifiable expectation of privacy in the premises. See
id. Ordinarily, two inquiries are required. First, an individual
must have exhibited an actual (subjective) expectation of pri-
vacy, and second, the expectation must be one that society is
prepared to recognize as reasonable. Id.
[11-13] With regard to the content of cell phones, an accused
must first establish that he personally has a legitimate expecta-
tion of privacy in the object that was searched. U.S. v. Turner,
781 F.3d 374 (8th Cir. 2015). An individual may demonstrate
infringement of his or her own legitimate expectation of pri-
vacy by showing that he owned the premises or that he occu-
pied them and had dominion and control over them based on
permission from the owner. State v. Nelson, supra. Other fac-
tors relevant to the determination of standing include histori-
cal use of the property or item, ability to regulate access, the
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totality of the circumstances surrounding the search, the exis-
tence or nonexistence of a subjective anticipation of privacy,
and the objective reasonableness of the expectation of privacy
considering the specific facts of the case. See U.S. v. Gomez,
16 F.3d 254 (8th Cir. 1994).
As noted above, we review the trial court’s factual find-
ings for clear error. The factual findings made by the district
court in the present case were largely undisputed. McMillion
and Caleb each had their own cell phones, which they used
to communicate with each other. They had been separated and
living apart for approximately 5 months prior to the seizure of
Caleb’s phone. The phone was seized from Caleb’s person at
the time of his arrest. McMillion could not say with certainty
that she ever used the particular memory card in Caleb’s phone
at any time, and the memory card contained data specific to
Caleb such as his e-mail account and applications he installed
on his phone.
In addition, the district court found that Caleb sought to
exclude McMillion from having access to his cell phone by
changing the passcode. McMillion admitted that although she
was able to access Caleb’s phone, she had to “break into” the
phone in order to do so. The foregoing historical facts are sup-
ported by the record and are therefore not clearly erroneous.
Our next question is whether, based on these facts, McMillion
had standing to challenge the search of Caleb’s phone and
memory card.
McMillion argues that she had a legitimate expectation
of privacy in the memory card because she had dominion
and control over it. We disagree. Although McMillion and
Caleb testified their various memory cards could have been
switched when they were living together prior to their separa-
tion, McMillion was unable to say whether she had ever used
this particular memory card. The card contained information
specific to Caleb’s cell phone, including applications he had
manually installed and photographs and videos he had taken
with his phone and saved to the memory card. On the other
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hand, the memory card contained no information or data spe-
cific to McMillion. Moreover, the memory card was inside
Caleb’s phone when the phone was seized from him, and he
had actively attempted to exclude McMillion from using and
accessing his phone during the prior 5 months. He testified that
after they separated, McMillion did not know the passcode to
his phone and he did not want her to have it, so he changed
it often.
In cases where the accused is not the owner of the prem-
ises but has been found to possess standing to challenge the
search, the accused generally has permission from the owner
to exert control over the premises at the time. See e.g., State
v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011) (driver of
rental vehicle found to have standing to challenge search
of vehicle upon proof authorized lessee gave permission
to operate vehicle), and State v. Lara, 258 Neb. 996, 607
N.W.2d 487 (2000) (guest had standing as to certain areas
of home in which he was staying). The Supreme Court has
acknowledged that standing is not limited to property rights
or ownership, but Nebraska precedent shows the importance
of dominion and control in the standing analysis. See State v.
Nelson, supra.
In the context of a cell phone, the Fifth Circuit in U.S.
v. Finley, 477 F.3d 250 (5th Cir. 2007), determined that the
defendant did have standing to challenge the search of his
cell phone, which had been issued to him by his employer,
based on his dominion and control over the phone. However,
the employee had a right to exclude others from using the
phone, he was permitted to use the phone for personal use,
he exhibited a subjective expectation of privacy in the phone,
and he took normal precautions to maintain his privacy in the
phone. Id.
To the contrary in the present case, McMillion did not
possess an ownership interest in or dominion or control over
Caleb’s cell phone or the memory card it contained. Not
only did she not possess a right to use the phone, but she did
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not have the right to exclude others from the phone either.
That right belonged solely to Caleb. We therefore find that
the district court did not err in concluding that McMillion
lacked standing to challenge the search of Caleb’s phone and
memory card.
[14] Based on this conclusion, we need not address
McMillion’s other arguments related to the search of Caleb’s
cell phone and denial of her motion to suppress. See State v.
Planck, 289 Neb. 510, 856 N.W.2d 112 (2014) (appellate court
is not obligated to engage in analysis that is not necessary to
adjudicate case and controversy before it).
3. Denial of Motion to Withdraw
McMillion contends that the district court erred in failing to
order withdrawal of her trial counsel. She specifically claims
the district court erred in denying her attorney’s motion to
withdraw because it failed to engage in the balancing test set
forth in Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692,
100 L. Ed. 2d 140 (1988). In Wheat, the analysis focused on an
attorney’s joint representation of coconspirators and the effect
of waiver on multiple representations. The Supreme Court held
that in determining whether to disqualify counsel, a court must
balance two Sixth Amendment rights: (1) the defendant’s right
to be represented by counsel of choice and (2) his or her right
to a defense conducted by an attorney who is free of conflicts
of interest. Id.
[15,16] McMillion’s reliance on Wheat is misplaced. Here,
the State’s witnesses against her were not charged in the
same conspiracy as McMillion and the cases in which they
were represented by McMillion’s trial counsel had ended.
More importantly, however, McMillion was represented by
the public defender’s office. The public defender’s duty is to
represent all indigent felony defendants. See Neb. Rev. Stat.
§ 23-3402 (Reissue 2012). An indigent criminal defendant’s
Sixth Amendment right to counsel does not include the right to
counsel of the indigent defendant’s own choice. State v. Dixon,
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286 Neb. 157, 835 N.W.2d 643 (2013). Thus, no balancing test
was necessary, because McMillion did not have a constitutional
right to counsel of her choice.
[17,18] She did have a Sixth Amendment right to effective
assistance of counsel, however, which includes representation
free of conflicts of interest which adversely affect her law-
yer’s performance. See State v. Sandoval, 280 Neb. 309, 788
N.W.2d 172 (2010). In Nebraska, the right to effective assist­
ance of counsel has been interpreted to entitle the accused to
the undivided loyalty of an attorney, free from any conflict
of interest. Id. Whether a defendant’s lawyer’s representa-
tion violates a defendant’s right to representation free from
conflicts of interest is a mixed question of law and fact that
an appellate court reviews independently of the lower court’s
decision. Id.
[19-21] The fact that an attorney has other clients, including
one who would be a State witness and testify at trial, is not
sufficient in and of itself to constitute a conflict of interest.
State v. Marchese, 245 Neb. 975, 515 N.W.2d 670 (1994). The
phrase “conflict of interest” denotes a situation in which regard
for one duty tends to lead to disregard for another or where a
lawyer’s representation of one client is rendered less effective
by reason of his or her representation of another client. State v.
Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001). The defend­
ant who shows that a conflict of interest actually affected the
adequacy of his or her representation need not demonstrate
prejudice, but such conflict of interest must be shown to have
resulted in conduct by counsel that was detrimental to the
defense. Id.
[22] In the case at hand, the State’s witnesses were former
clients of McMillion’s counsel, and thus, this is not a case
of concurrent representation, but, rather, a case of successive
representation. Because no direct or concurrent representation
is involved, there is no actual conflict. See State v. Ehlers, 262
Neb. 247, 631 N.W.2d 471 (2001). Therefore, the question
is whether McMillion’s trial counsel’s former representation
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of the State’s two witnesses resulted in a potentially serious
conflict of interest. See id. In other words, Did counsel’s
duty to his former clients result in disregard for McMillion or
result in less effective representation of McMillion? We find
it did not.
[23] According to the Nebraska Rules of Professional
Conduct governing former client conflicts of interest, a lawyer
who formerly represented a client in a matter is prohibited
from thereafter representing another person in the same or a
substantially related matter in which that person’s interests are
materially adverse to the interests of the former client unless
the former client gives informed consent, confirmed in writing.
Neb. Ct. R. of Prof. Cond. § 3-501.9(a).
In the present case, the parties stipulated that there was no
relationship between the witnesses’ cases and McMillion’s
case. At the time the witnesses signed their affidavits, their
cases had been resolved and the time for appeal had passed.
The witnesses’ affidavits indicate that neither of them provided
any information during the time they were represented by the
public defender’s office that would be useful in McMillion’s
case. Moreover, both witnesses signed waivers of any conflicts
of interest and attorney-client privilege. As a result, we find
no error in the district court’s denial of McMillion’s counsel’s
motion to withdraw.
4. Denial of Motion
to Sequester Jury
McMillion assigns that the district court erred in denying her
motion to sequester the jury. We disagree.
[24-26] Neb. Rev. Stat. § 29-2022 (Reissue 2008) requires
that a jury be sequestered “[w]hen a case is finally submitted to
the jury . . . .” Whether a jury is to be kept together before sub-
mission of the cause in a criminal trial is left to the discretion
of the trial court. State v. Gales, 269 Neb. 443, 694 N.W.2d 124
(2005). To warrant reversal, denial of a motion to sequester the
jury before submission of the cause must be shown to have
prejudiced the defendant. Id.
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McMillion argues that she was prejudiced because the
county attorney’s office was posting information about her case
on social media, there was extensive media publicity, and one
of the jurors told her mother that she was selected for the case.
At a hearing on the sequestration motion, McMillion offered
into evidence six news articles relating to the case. The evi-
dence included information the county attorney’s office posted
on social media in January 2014 indicating that Caleb entered
no contest pleas to several of his charges. As will be discussed
below, there was also an incident where the mother of a juror
contacted the county attorney’s office with a question after the
juror informed her mother that she had been selected for a jury.
Contrary to McMillion’s argument, none of this evidence
indicates that the jurors were seeking out information related
to the case. The fact that there was media coverage of the case
does not mean the jurors were aware of it or that it impacted
their impartiality as to the case. Voir dire is not contained in
the record before us, but the district court observed that only
one prospective juror indicated that he may have heard some-
thing about the case in the media. Further, the e-mail sent by
the selected juror’s mother simply stated that the juror had
informed her mother that she was selected for a jury; there
was no evidence that she told her mother which case she was
selected for.
The district court found that although there had been media
coverage, the coverage was not so pervasive as to require the
court to sequester the jury prior to submission of the case. At
each recess, the court admonished the jury to refrain from lis-
tening to any information about the case outside of the court-
room, talking about the case, and forming or expressing an
opinion of the case until it was submitted for their deliberation.
There was no evidence presented rebutting the presumption
that the jurors followed the instructions they were given. See
State v. Gales, supra. Accordingly, the district court did not
abuse its discretion in refusing to sequester the jury prior to
submission of the case.
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5. Denial of Motion for Mistrial
McMillion asserts that the court erred in failing to grant a
mistrial when, during opening statements, the State improp-
erly referenced her right to remain silent under the Fifth
Amendment. We find no merit to this argument.
[27] Whether to grant a mistrial is within the trial court’s
discretion, and an appellate court will not disturb its ruling
unless the court abused its discretion. State v. Ramirez, 287
Neb. 356, 842 N.W.2d 694 (2014).
[28-31] Prosecutors are charged with the duty of conduct-
ing criminal trials in such a manner that an accused may
have a fair trial. State v. Pierce, 231 Neb. 966, 439 N.W.2d
435 (1989). A prosecutor’s comment on a defendant’s silence
in the defendant’s trial is a violation of an accused’s right
to remain silent under the 5th and 14th Amendments to the
U.S. Constitution and under article I, § 12, of the Nebraska
Constitution. State v. Pierce, supra. The prohibition against a
prosecutor’s comment on a defendant’s right to remain silent
applies throughout a trial, including the opening statement and
closing argument during the defendant’s trial. Id. In an opening
statement for a jury trial, a prosecutor’s comment concerning
the necessity of the defendant’s testimony or an expression
concerning the plausibility or credibility of anticipated testi-
mony from a defendant violates an accused’s right to remain
silent at trial. Id.
The defendant in Pierce was charged with criminal mischief.
During opening statements at trial, the prosecutor told the jury
that the defendant “‘will testify but we do not know which
version of the facts to which he will testify.’” Id. at 969, 439
N.W.2d at 439. The defendant moved for mistrial, arguing the
remark violated his constitutional right to remain silent. His
motion was denied.
On appeal, the Supreme Court observed that the prosecu-
tor’s remark immediately made the defendant’s credibility an
issue in the case before introduction of any evidence. As a
result, either the defendant could remain silent and thereby
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give credence to, or even substantiate, the innuendo that he had
previously given inconsistent versions of the incident on which
the criminal charge was based, or he could take the witness
stand and recount a version without any inconsistency, thereby
responding to the prosecutor’s intimation of inconsistency but
subjecting himself to cross-examination.
The Supreme Court observed that the insinuation of multiple
versions could lead a jury to believe that the defendant, before
trial, had admitted his criminality in the charged offense, ren-
dering all in-court evidence irrelevant because the defendant
had already admitted his guilt. Therefore, the court held that
the prosecutor’s statement compelled the defendant to testify
and was therefore a violation of his constitutional right to
remain silent. State v. Pierce, supra.
The dangers from Pierce are not present in the instant
case. The State referenced that McMillion may take the stand
and may tell “her . . . stories,” whereas the prosecution in
Pierce affirmatively asserted that the defendant would testify.
Furthermore, the only evidence of liability adduced by the
State in Pierce was from the driver of a damaged vehicle.
Therefore, the Supreme Court questioned how the prosecution
could know that the defendant gave more than one version
of the incident and concluded that the insinuation of multiple
versions could lead a jury to believe that he had admitted his
culpability before trial.
In the present action, however, the fact that McMillion
expressed more than one version of facts was known and
proved at trial by evidence from multiple witnesses. It was
undisputed that McMillion admitted to “put[ting her] mouth
on” S.M., immediately recanted, and continued to deny assault-
ing S.M. until the photographs were found. Unlike many sex-
ual assault cases, the question was not whether McMillion had
sexually assaulted S.M., but, rather, whether her defense was
plausible. So the fact that McMillion initially denied assault-
ing S.M. had less of an impact than it would in a case such as
State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989), where
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the State was attempting to prove that the defendant commit-
ted acts which he denied.
Furthermore, in Pierce, the court found the prosecutor’s
statement was prejudicial because the defendant felt compelled
to testify in order to deny the State’s insinuation that he had
previously admitted to committing the crime, and his credibility
was placed at issue by the State’s remark. Here, McMillion’s
credibility was already an issue; the State’s theory was that her
later claims that she committed the acts because Caleb coerced
her into doing them were unbelievable because she changed
her story so many times. This theory was supported by admis-
sible evidence regardless of the State’s comments during open-
ing statements. See, also, State v. Molina, 271 Neb. 488, 713
N.W.2d 412 (2006) (finding no error in opening statement that
highlighted defendant’s contradictory statements and conclud-
ing that if defendant felt compelled to take stand, it was result
of evidence adduced and not opening statement setting forth
anticipated evidence).
[32-35] Moreover, before it is necessary to grant a mistrial
for prosecutorial misconduct, the defendant must show that a
substantial miscarriage of justice has actually occurred. State
v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006). A party
is allowed considerable latitude in making an opening state-
ment. See State v. Ruegge, 21 Neb. Ct. App. 249, 837 N.W.2d 593
(2013). The impact of any comment made at trial depends on
the atmosphere at trial. State v. Ramold, 2 Neb. Ct. App. 545, 511
N.W.2d 789 (1994). The trial judge is in a better position to
measure the impact a comment has on a jury, and his or her
decision will not be overturned unless clearly erroneous. Id.
[36] Here, the disputed comment was a single remark made
during opening statements of a 6-day trial. In denying the
motion for mistrial, the district court properly recognized that
it is permissible for the State to discuss what the evidence
may show. See U.S. v. Kalagian, 957 F.2d 527 (8th Cir. 1992)
(prosecutor’s opening statement should objectively outline evi-
dence reasonably expected to be introduced during trial). As
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stated above, the evidence presented at trial established that
McMillion had changed her story over the course of time, and
whether she had, in fact, engaged in sexual acts with S.M. was
affirmatively proved by way of the photographs. We therefore
find the court’s conclusion that the prosecutor’s comment did
not have a prejudicial impact on the jury was not clearly erro-
neous. Accordingly, the court did not abuse its discretion in
denying the motion for mistrial.
[37] We note that McMillion also points out that the State
commented on the Project Harmony interview during its open-
ing statement, and she moved for mistrial on that basis as
well. However, she does not argue this error on appeal and
concludes her argument regarding prosecutorial misconduct
with the statement that because the State violated her Fifth
Amendment rights, the case should be remanded. Errors that
are assigned but not argued will not be addressed by an
appellate court. State v. Harris, 284 Neb. 214, 817 N.W.2d
258 (2012).
6. Failure to R emove Juror
[38] McMillion challenges the district court’s refusal to
remove a juror after the juror’s mother contacted the county
attorney’s office. Her entire argument is contained in one
sentence: She was prejudiced by the court’s failure to remove
the juror. The retention or rejection of a juror is a matter of
discretion for the trial court. State v. Robinson, 272 Neb. 582,
724 N.W.2d 35 (2006), abrogated on other grounds, State v.
Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). This rule applies
both to the issue of whether a venireperson should be removed
for cause and to the situation involving the retention of a juror
after the commencement of trial. Id.
[39,40] In a criminal case, jury misconduct must be demon-
strated by clear and convincing evidence. Id. Where the jury
misconduct in a criminal case involves juror behavior only,
the burden to establish prejudice rests on the party claiming
the misconduct. Id.
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In the instant case, the evidence establishes only that the
juror informed her mother that she had been selected for a
jury, which is permissible. There was no evidence that the
juror asked her mother to contact the county attorney’s office
or informed her mother for which case she was selected.
There was nothing to suggest any improper behavior on the
part of the juror. As such, McMillion has failed to establish
that she was prejudiced by the contact, and thus, the court
did not abuse its discretion in denying her request to remove
the juror.
7. A llowing Improper Expert Opinion
McMillion claims the district court erred in allowing Howell,
a detective, to give an improper expert opinion. During his tes-
timony at trial, Howell explained that he conducted a forensic
examination of Caleb’s cell phone and memory card and dis-
covered the two photographs of McMillion and S.M. Howell
was asked several questions about his opinion as to the cre-
ation dates of the photographs, whether creation dates can be
modified, and whether he can tell if the creation dates of the
photographs are accurate. McMillion interposed several objec-
tions on the grounds of foundation and speculation, but her
objections were overruled. Howell ultimately opined as to the
file creation dates, but said he could not give a date as to when
the photographs were actually taken.
On appeal, McMillion claims that Howell’s opinions of
the file creation dates were inadmissible because he is not an
expert in date forgery analysis and his opinion is not appro-
priate lay witness testimony under Neb. Rev. Stat. § 27-701
(Reissue 2008). She claims that Howell did not have the quali-
fications to testify about date forgery analysis, and the court
did not investigate whether he had such qualifications.
[41,42] We first observe that none of the opinions that
McMillion claims were erroneously admitted were objected to
at trial on the grounds she now asserts. On appeal, the defend­
ant may not assert a different ground for his or her objection
to the admission of evidence than was offered to the trier of
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fact. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
The Supreme Court has specifically determined that an objec-
tion on the basis of insufficient foundation is a general objec-
tion and fails to preserve a challenge on appeal to admissibil-
ity of expert testimony. See State v. King, 269 Neb. 326, 693
N.W.2d 250 (2005).
Here, because McMillion objected to Howell’s opinions at
trial only on the grounds of foundation and speculation, appel-
late review of her argument that Howell was permitted to give
an improper expert opinion has been waived.
8. R eceiving Exhibits into Evidence
The photographs found on Caleb’s cell phone of McMillion
and S.M. were offered into evidence at trial as exhibits 31 and
32. Caleb was the first witness to testify for the State at trial,
and he explained that in June 2012, he witnessed McMillion
perform oral sex on S.M. He recorded a video of it on his cell
phone. He deleted the video, but photographs from it were
later recovered by police. He confirmed the photographs con-
tained in exhibits 31 and 32 were from the video he recorded
and identified the people in the photographs as McMillion
and S.M. He agreed that the photographs fairly and accurately
depict what he observed in June 2012. McMillion objected on
foundational grounds, but her objection was overruled. The
photographs were then received into evidence.
On appeal, McMillion argues that the court erred in receiv-
ing the photographs into evidence. She claims the photographs
lack sufficient foundation because the date they were taken was
disputed when Caleb said they were taken in June 2012, but the
forensic examination showed they were created in December
2011. We disagree.
[43,44] Whether there is sufficient foundation evidence for
the admission of physical evidence must necessarily be deter-
mined on a case-by-case basis. State v. Anglemyer, 269 Neb.
237, 691 N.W.2d 153 (2005). A trial court’s determination of
the admissibility of physical evidence will not ordinarily be
overturned except for an abuse of discretion. Id.
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[45,46] Neb. Rev. Stat. § 27-901 (Reissue 2008) provides in
relevant part:
(1) The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in
question is what its proponent claims.
(2) By way of illustration only, and not by way of
limitation, the following are examples of authentication
or identification conforming with the requirements of
this rule:
(a) Testimony that a matter is what it is claimed to be;
....
(d) Appearance, contents, substance, internal patterns,
or other distinctive characteristics, taken in conjunction
with circumstances;
....
(i) Evidence describing a process or system used to
produce a result and showing that the process or system
produces an accurate result[.]
Photographic evidence is admissible when it is shown that
it is a correct reproduction of what it purports to show, and
such showing may be made by any evidence that bears on
whether the photographic evidence correctly depicts what it
purports to represent. State v. Anglemyer, supra. Under the
illustrative model of authenticating photographic evidence, a
photograph, motion picture, videotape, or other recording is
viewed merely as a graphic portrayal of oral testimony and
is admissible only when a witness testifies that it is a correct
and accurate representation of facts that the witness person-
ally observed. Id.
In the instant case, the State presented sufficient founda-
tion to support the finding that the photographs depicted what
they were purported to depict. Caleb’s testimony, summarized
above, connects what is depicted in exhibits 31 and 32 with
what he personally observed and recorded on his cell phone.
The photographs were stored in a folder on the memory card
in Caleb’s phone until they were recovered by police after his
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arrest. McMillion claims the photographs lacked sufficient
foundation because their creation dates were disputed. The
dispute was not raised, however, until later in trial, when
Howell testified. The photographs were received into evi-
dence while Caleb, the State’s first witness, was testifying.
Consequently, we find no abuse of discretion in the district
court’s decision to receive the photographs into evidence. Any
disparity in the testimony as to when the photographs were
taken is a matter of weight and credibility, not a matter of
admissibility. See Ford v. Estate of Clinton, 265 Neb. 285, 656
N.W.2d 606 (2003).
9. Granting Motion in
Limine as to Falk
During trial, the State made an oral motion in limine as
to the testimony of defense witness Falk due to a discovery
violation. Falk was McMillion’s treating physician from 2011
until the time of McMillion’s arrest. The defense notified the
State on September 5, 2014, of its intention to call Falk as
a witness, 4 days before trial began. On September 12, the
defense provided the State with approximately 1,000 pages
of Falk’s medical records. Defense counsel said he turned the
records over the day after he received them, but he admitted
that he had not requested the records earlier because it was
“not high on the priority list of things that needed to get done”
on the case.
The district court noted that the case had been pending for
19 months and that there had been a reciprocal discovery order
in place for a significant period of time. Finding there was no
good reason for the defense to provide the records “at this late
date,” the court granted the motion in limine and refused to
allow Falk to testify. McMillion then made an offer of proof
as to the substance of Falk’s testimony.
On appeal, McMillion claims the district court erred in refus-
ing to allow Falk to testify. We find no merit to this argument.
[47] Discovery in a criminal case is generally controlled
by either a statute or court rule. Therefore, unless granted
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as a matter of right under the Constitution or other law, dis-
covery is within the discretion of a trial court, whose ruling
will be upheld on appeal unless the trial court has abused its
discretion. State v. Henderson, 289 Neb. 271, 854 N.W.2d
616 (2014).
[48,49] Whether rooted directly in the Due Process Clause
of the 14th Amendment or in the Compulsory Process or
Confrontation Clauses of the 6th Amendment, the federal
Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense. State v. Henderson,
supra. However, with respect to admission of evidence, a
defendant does not have an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence. State v. Henderson, supra. See,
also, Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 98 L. Ed.
2d 798 (1988).
[50-52] The defendant’s right to compulsory process is
itself designed to vindicate the principle that the ends of
criminal justice would be defeated if judgments were to be
founded on a partial or speculative presentation of the facts.
Id. Rules that provide for pretrial discovery of an opponent’s
witnesses serve the same high purpose. Id. Discovery, like
cross-examination, minimizes the risk that a judgment will
be predicated on incomplete, misleading, or even deliberately
fabricated testimony. Id. The State’s interest in protecting itself
against an 11th-hour defense is merely one component of the
broader public interest in a full and truthful disclosure of criti-
cal facts. Id.
In Taylor, the defendant failed to identify a defense witness
in response to a pretrial discovery request, instead waiting,
until after trial began, to disclose the witness’ identity. As
a sanction, the trial judge refused to allow the undisclosed
witness to testify. On appeal to the U.S. Supreme Court,
the defendant argued that that refusal violated his constitu-
tional right to obtain the testimony of favorable witnesses.
The Supreme Court rejected the defendant’s argument that a
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preclusion sanction is never appropriate no matter how seri-
ous the defendant’s discovery violation may be and upheld
the sanction.
Likewise, in the present case, McMillion failed to abide
by the pretrial discovery order, which required disclosure of
the names and addresses of McMillion’s anticipated witnesses
by August 27, 2014, and instead, she did not identify Falk
until September 5. Moreover, she produced approximately
1,000 pages of medical records for the State’s review 3 days
after trial began. McMillion’s counsel admitted that although
he had known that Falk was McMillion’s treating physician
for some time, he had not requested medical records sooner
because it was not a high priority. Thus, sanctioning McMillion
in some manner, including disallowing Falk’s testimony,
was appropriate.
The Nebraska Supreme Court has said that the discovery
process is not a game of “‘hide the ball’” and that discovery
orders must be completed in a timely manner. See State v.
Kula, 252 Neb. 471, 487, 562 N.W.2d 717, 727 (1997). In
Kula, the State did not produce material reports until the first
day of trial, and thus, the defendant was unable to outline
certain witnesses’ testimony in his opening statements. The
Supreme Court recognized that defense counsel should not
have been forced into investigating the content of the reports
by night while defending against a murder charge by day. As
a result, “[defense] counsel was put in the position of trying
[the] case on the run.” Id. Had Falk been permitted to testify,
the State would have been in the same position in the instant
case, where it would have been forced to review voluminous
medical records at night while prosecuting a case involving
multiple felonies by day.
[53] We note that McMillion asserts that there was no dis-
covery violation because she produced the medical records
upon receipt. The pretrial discovery order, however, required
that McMillion disclose the names and addresses of her wit-
nesses by August 27, 2014, and Falk’s name was not disclosed
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to the State until September 5, 4 days prior to trial. As such,
McMillion failed to comply with the court’s discovery order.
She also argues the court’s sanction exceeded the scope of
the State’s request, which asked only that Falk be limited in
the substance of her testimony. Trial courts have broad discre-
tion with respect to sanctions involving discovery procedures,
however. See State v. Gutierrez, 272 Neb. 995, 726 N.W.2d
542 (2007), abrogated on other grounds, State v. Thorpe, 280
Neb. 11, 783 N.W.2d 749 (2010). We therefore find that the
district court did not abuse its discretion in refusing to allow
Falk to testify.
10. Failure to Give Proposed
Jury Instructions
McMillion offered three proposed jury instructions. Proposed
instruction No. 1 stated, “‘Knowingly’ means to be aware of
what you [are] doing at the time an act is being committed.”
Proposed instruction No. 2 stated, “‘Knowingly’ is a synonym
of ‘Willfully’ and is distinguished from accidentally or invol-
untarily.” Proposed instruction No. 3 stated, “‘Willfully’ means
intentionally and purposely.”
In relevant part, instruction No. 6 given to the jury provided:
“‘Intentionally’ means willfully or purposely and not acciden-
tally or involuntarily. ‘Knowingly’ means willfully as distin-
guished from accidentally or involuntarily. ‘Willfully’ means
intentionally and purposely.”
When discussing McMillion’s proposed instructions during
the instruction conference, the district court observed that pro-
posed instruction No. 3 was adopted into the given instruction
No. 6, and McMillion agreed. The court also observed that
proposed instruction No. 2 was “pretty similar” to the given
instruction No. 6. The court declined to give proposed instruc-
tion No. 1 in any form.
On appeal, McMillion argues that the district court erred in
refusing to give her proffered instructions. She acknowledges
that the proposed jury instruction No. 3 was contained in the
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given jury instruction No. 6 but argues that it should have been
given separately. She also asserts that her other two proposed
instructions more clearly and correctly stated the definitions
of “knowingly” than did the given jury instruction No. 6. She
claims that she was prejudiced by the jury’s not having been
instructed correctly.
[54] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. State v. Ruegge, 21 Neb. Ct. App. 249, 837
N.W.2d 593 (2013).
[55,56] To establish reversible error from a court’s refusal
to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. Id. In reviewing a
claim of prejudice from jury instructions given or refused, an
appellate court must read the instructions together, and if, taken
as a whole, they correctly state the law, are not misleading,
and adequately cover the issues supported by the pleadings and
evidence, there is no prejudicial error. Wilkins v. Bergstrom, 17
Neb. Ct. App. 615, 767 N.W.2d 136 (2009).
[57] McMillion does not argue that the given instructions
were an incorrect statement of law or were misleading; she
argues only that the court’s instructions did not adequately
cover the definition of “knowingly.” The same argument
was tendered in Wilkins v. Bergstrom, supra, and this court
rejected it. We reiterated that a trial court is not required to
give a proffered instruction which unduly emphasizes a part
of the evidence in the case. See, First Mid America, Inc. v.
Palmer, 197 Neb. 224, 248 N.W.2d 30 (1976); Wilkins v.
Bergstrom, supra.
Likewise here, assuming that the tendered instructions were
correct statements of the law and warranted by the evidence,
McMillion has not demonstrated that she was prejudiced by
failure to give the instructions. The jury was given several
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definitions of “knowingly,” and adding the proposed instruc-
tion No. 1 would have been superfluous and would have
unduly emphasized the element of “knowingly,” which we note
is not a required element for all of the offenses with which
McMillion was charged. In short, the instructions given, taken
as a whole, correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings.
[58] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. State v. Iromuanya,
272 Neb. 178, 719 N.W.2d 263 (2006). McMillion has failed
to demonstrate prejudice resulting from the refusal of her
tendered instructions. Therefore, this assignment of error
is meritless.
11. Sufficiency of Evidence
McMillion asserts that the evidence presented at trial was
insufficient to sustain her convictions. We disagree.
[59,60] In reviewing a criminal conviction for a sufficiency
of the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. State v. Escamilla, 291
Neb. 181, 864 N.W.2d 376 (2015). 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. Id.
[61] McMillion was convicted of five counts: first degree
sexual assault of a child under age 12, incest, two counts of
visual depiction of sexually explicit conduct, and child abuse.
As charged, a person commits first degree sexual assault of a
child when he or she subjects another person under 12 years
of age to sexual penetration and the actor is at least 19 years
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of age or older. Neb. Rev. Stat. § 28-319.01(1)(a) (Cum. Supp.
2014). Sexual penetration includes fellatio. Neb. Rev. Stat.
§ 8-318(6) (Cum. Supp. 2014).
The photographs received into evidence depict McMillion
performing fellatio on S.M., and McMillion admitted to having
done so. S.M. was 7 years old at the time of trial, and thus, he
was under 12 years of age when the photographs were taken.
McMillion was born in 1981 and was therefore over age 19 at
the time the photographs were taken. Accordingly, the evidence
is sufficient to support the conviction for first degree sexual
assault of a child under 12.
[62] This evidence also establishes the elements of incest.
Any person who knowingly engages in sexual penetration with
his or her child commits incest. See Neb. Rev. Stat. §§ 28-702
and 28-703 (Reissue 2008). McMillion and Caleb both identi-
fied the child in the photographs as S.M., their son. In light
of the photographs, McMillion’s argument hinged on whether
she committed the charged acts “‘knowingly.’” Brief for
appellant at 41. She claimed at trial that she did not remember
performing the acts depicted in the photographs and that she
was controlled by Caleb. She also presented expert testimony
as to her mental conditions, the fact that she may have been
dissociating during the acts, leaving her with no memory of
them, and the fact that she had been manipulated by Caleb.
However, there was evidence to the contrary, both lay and
expert, which the jury found credible. Ultimately, there was
evidence presented that McMillion knowingly engaged in
sexual penetration with her son, which is sufficient to sustain
the conviction of incest.
McMillion was also convicted of two counts of visual
depiction of sexually explicit conduct, in violation of Neb. Rev.
Stat. § 28-1463.03 (Cum. Supp. 2014). She was charged under
two separate subsections of § 28-1463.03, which provide in
relevant part:
(1) It shall be unlawful for a person to knowingly
make, publish, direct, create, provide, or in any manner
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generate any visual depiction of sexually explicit con-
duct which has a child as one of its participants or por-
trayed observers.
....
(4) It shall be unlawful for a parent, . . . knowing the
content thereof, to consent to such child engaging in any
visual depiction of sexually explicit conduct which has a
child as one of its participants or portrayed observers.
The applicable definition of “[s]exually explicit con-
duct” includes oral-genital intercourse. See Neb. Rev. Stat.
§ 28-1463.02(5)(a) (Cum. Supp. 2014). Visual depiction of
sexually explicit conduct includes photographs and videos.
See § 28-1463.02(6). As such, the State in the present case
was required, for one count, to prove that McMillion know-
ingly generated photographs or videos depicting oral-genital
intercourse with a child as one of the participants. For the
second count, the State needed to establish that McMillion
consented to the participation of her child in photographs or
videos depicting oral-genital intercourse with the child as one
of the participants.
Caleb’s testimony establishes all of the required elements.
He testified that in June 2012, he walked into his bedroom and
witnessed McMillion performing oral sex on S.M. He testified
that he asked McMillion if he could “take a video of what she
was doing,” and she agreed. Caleb identified the two photo-
graphs received into evidence as photographic stills from the
video he recorded.
By agreeing to allow Caleb to create videos of the sexual
activity between herself and S.M., McMillion knowingly gen-
erated visual depiction of sexually explicit conduct with a
child as a participant, and she consented to her minor child’s
participation in a video depicting sexually explicit conduct.
Consequently, all of the required elements of both offenses
were established by sufficient evidence.
McMillion’s final conviction was for child abuse. In relevant
part, a person commits child abuse if he or she knowingly or
intentionally causes or permits a minor child to be placed in
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a situation that endangers his or her life or physical or mental
health. § 28-707.
Viewed in a light most favorable to the State, there is suf-
ficient evidence to sustain McMillion’s conviction for child
abuse. S.M. was diagnosed with adjustment disorder, anxiety
disorder, posttraumatic stress disorder, and mood disorder as a
result of McMillion’s actions. As such, it was rational for the
trier of fact to have concluded that McMillion knowingly and
intentionally permitted S.M. to be placed in a situation that
endangered his physical or mental health.
On appeal, McMillion generally challenges the credibility
of the witnesses, which it is well established that we will not
reweigh or pass on. Viewed in the light most favorable to the
State, the evidence satisfies all of the statutory elements neces-
sary to sustain the convictions.
12. Sentencing
McMillion raises several issues related to sentencing.
(a) Additional Condition Imposed
McMillion first observes that the district court’s oral pro-
nouncement of her sentence indicated that S.M. should not “be
required” to have any contact with her during her sentences,
but the written sentencing order prohibited contact between
McMillion and S.M. She urges us to strike the provision
contained in the written sentencing order. McMillion further
argues that imposing a condition restricting contact with S.M.
was impermissible under the sentencing statute contained in
Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014).
The State claims that any issue relating to McMillion’s abil-
ity to have contact with S.M. is moot because McMillion’s
parental rights to S.M. are no longer intact and he has been
adopted. The State asks that we take judicial notice of the case
from the separate juvenile court of Sarpy County involving
McMillion and S.M.
[63,64] The Nebraska Supreme Court has recognized that,
as a subject for judicial notice, existence of court records
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and certain judicial action reflected in a court’s record are,
in accordance with Neb. Rev. Stat. § 27-201(2)(b) (Reissue
2008), facts which are capable of accurate and ready determi-
nation by resort to sources whose accuracy cannot be reason-
ably questioned. Gottsch v. Bank of Stapleton, 235 Neb. 816,
458 N.W.2d 443 (1990). Thus, a court may judicially notice
existence of its records and the records of another court, but
judicial notice of facts reflected in a court’s records is subject
to the doctrine of collateral estoppel or of res judicata. Id.
[65,66] Further, under § 27-201(6), judicial notice may be
taken at any stage of the proceeding. Proceeding under this
section has been found to include judicial activity which occurs
after commencement of an action and includes judicial action
in an appeal. See Gottsch v. Bank of Stapleton, supra. Section
27-201(4) provides that a judge or court shall take judicial
notice if requested by a party and supplied with the neces-
sary information.
The State, in the instant case, asked that we take judicial
notice of the related juvenile case and provided the case num-
ber. We judicially notice that in that case, McMillion relin-
quished her parental rights to S.M. and he has been adopted.
The juvenile court terminated its jurisdiction over S.M. on
March 17, 2015, and the time for appeal has passed.
[67,68] A natural parent who relinquishes his or her rights
to a child by a valid written instrument gives up all rights to
the child at the time of the relinquishment. Monty S. & Theresa
S. v. Jason W. & Rebecca W., 290 Neb. 1048, 863 N.W.2d 484
(2015). After a decree of adoption has been entered, the natural
parents of an adopted child shall be relieved of all parental
duties and responsibilities for the child and shall have no rights
over the child. Neb. Rev. Stat. § 43-111 (Reissue 2008).
[69] Because McMillion relinquished her parental rights to
S.M. and his adoption has been finalized, McMillion’s rights
to S.M. have been extinguished. She therefore has no legal
right to have contact with him. Consequently, the issues before
us as to the contact condition pronounced by the district court
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and that included in the sentencing order are moot. See In
re Interest of Nathaniel M., 289 Neb. 430, 855 N.W.2d 580
(2014) (issue is moot when it seeks to determine question
which does not rest upon existing facts or rights, in which
issues presented are no longer alive).
(b) Consecutive and
Excessive Sentences
McMillion asserts that her case should be remanded for
resentencing due to the district court’s uncertainty as to
whether consecutive sentences were required. She also claims
that regardless of the requirements, the court erred in imposing
consecutive as opposed to concurrent sentences, and that her
sentences are therefore excessive. We find no abuse of discre-
tion in the sentences imposed.
First degree sexual assault of a child under 12 is a Class IB
felony with a mandatory minimum sentence of 15 years in
prison for the first offense. § 28-319.01(2). Generally, Class IB
felonies carry a sentencing range of 20 years’ to life imprison-
ment. § 28-105. McMillion was sentenced to 30 to 50 years’
imprisonment.
Incest, under the statute applicable at the time, was a Class III
felony. § 28-703(2). Class III felonies were punishable by 1 to
20 years’ imprisonment at the time McMillion was sentenced.
§ 28-105(1). McMillion’s sentence for this offense was 1 to 5
years’ imprisonment.
Visual depiction of sexually explicit conduct committed by
a person who is 19 years of age or older is a Class ID felony,
which is punishable by a mandatory minimum sentence of 3
years’ imprisonment and a maximum of 50 years’ imprison-
ment. Neb. Rev. Stat. § 28-1463.04 (Cum. Supp. 2014) and
§ 28-105(1). McMillion received sentences of 3 to 5 years’
imprisonment for each of these offenses.
Child abuse, as charged in the information, is a Class IIIA
felony if it is committed knowingly and intentionally and
does not result in serious bodily injury or death. § 28-707.
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Class IIIA felonies are punishable by a maximum of 5 years’
imprisonment. § 28-105(1). The court sentenced McMillion to
2 to 5 years’ imprisonment for this crime.
McMillion’s sentences all fall within the statutory lim-
its. Her convictions for sexual assault and both counts of
visual depiction of sexually explicit conduct carry manda-
tory minimum sentences, but none of the applicable statutes
requires consecutive sentences. There was discussion between
the parties and court at sentencing as to not only whether those
offenses carried mandatory minimum sentences but whether
those sentences were also required to be served consecutively.
[70-72] Generally, it is within a trial court’s discretion to
direct that sentences imposed for separate crimes be served
either concurrently or consecutively. State v. Lantz, 290 Neb.
757, 861 N.W.2d 728 (2015). The Supreme Court recently
clarified that not all convictions carrying a mandatory mini-
mum sentence must be served consecutively to all other sen-
tences. See, id.; State v. Berney, 288 Neb. 377, 847 N.W.2d
732 (2014). Rather, a court is required to order consecutive
sentences only for those specific crimes that require a manda-
tory minimum sentence to be served consecutively to other
sentences imposed. State v. Lantz, supra. If the conviction
requires only a mandatory minimum sentence but the statute
does not mandate that the minimum sentence run consecutively
to other sentences, the decision as to whether to run the sen-
tences consecutively or concurrently is left to the sentencing
court. See id.
Although the district court expressed uncertainty as to
whether consecutive sentences were required, we find noth-
ing in the record indicating that it acted under the mistaken
impression that it was, in fact, required to order consecutive
sentences. The court found that regardless of “whether those
mandatory minimums mandate consecutive sentences,” the
nature of the offenses merits consecutive sentences. This find-
ing was within the district court’s discretion. And we find that
this conclusion was not an abuse of that discretion.
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Nevertheless, McMillion challenges her sentences, arguing
that her sentences should have been ordered to be served con-
currently. We disagree.
[73,74] An appellate court will not disturb a sentence
imposed within the statutory limits absent an abuse of discre-
tion by the trial court. State v. Casares, 291 Neb. 150, 864
N.W.2d 667 (2015). It is within the discretion of the trial court
to direct that sentences imposed for separate crimes be served
consecutively. State v. Elliott, 21 Neb. Ct. App. 962, 845 N.W.2d
612 (2014). The test of whether consecutive sentences may be
imposed under two or more counts charging separate offenses,
arising out of the same transaction or the same chain of events,
is whether the offense charged in one count involves any dif-
ferent elements than an offense charged in another count and
whether some additional evidence is required to prove one of
the other offenses. Id.
Here, it is clear that each of the offenses of which McMillion
was convicted is a separate offense containing different ele-
ments. We have discussed the required elements of each offense
above and summarized the evidence presented to sustain the
convictions. In short, because additional evidence is necessary
to prove the elements of each of the offenses, it was within
the district court’s discretion to impose consecutive rather than
concurrent sentences for the separate crimes. We therefore find
no abuse of discretion in the sentences imposed.
V. CONCLUSION
For the foregoing reasons, we find no merit to any of the
issues raised on appeal. Therefore, we affirm the convictions
and sentences.
A ffirmed.