State v. Ford ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. FORD
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JACOB FORD, APPELLANT.
Filed March 5, 2019. No. A-18-478.
Appeal from the District Court for Douglas County: JAMES T. GLEASON, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and John J. Jedlicka for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
RIEDMANN, BISHOP, and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Jacob Ford appeals his conviction of intentional child abuse causing serious bodily injury
and the sentence imposed thereon. He contends that the district court erred in improperly excluding
certain evidence, failing to allow him to complete an offer of proof, improperly admitting evidence,
that the evidence was insufficient to support his conviction, and that the sentence imposed was
excessive. Having reviewed his assigned errors and finding them to be without merit, we affirm
his conviction and sentence.
II. STATEMENT OF FACTS
At about 4:15 a.m. on August 3, 2017, Kara Payne was at work when she received a
telephone call from Ford informing her that he had dropped their 7-week-old daughter, Skylar
Ford, and she was being transported by ambulance to the University of Nebraska Medical Center
(UNMC). At the hospital, Ford informed medical personnel that he dropped Skylar, she hit her
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head on her crib, then hit her head on the wood floor. Skylar suffered from subdural hemorrhaging,
retinal hemorrhaging in both eyes, and a global brain injury caused by a lack of oxygen and blood
to her brain. Doctors determined that Skylar’s injuries could not have been caused by the events
as reported by Ford and concluded that the cause of her injuries was abusive head trauma. Ford
was charged with intentional child abuse resulting in serious bodily injury, a Class II felony. See
Neb. Rev. Stat. § 28-707(1) and (7) (Reissue 2016). Because Ford did not dispute that he caused
Skylar’s injuries, the only issue at his March 12, 2018, bench trial was whether he did so
intentionally.
1. EVIDENCE PRESENTED AT TRIAL
(a) Background
Skylar was born on June 13, 2017, and prior to August 3, she had been developing normally
and only had minor health issues. On August 2, Payne spent time with Skylar before she had to
leave at 5 p.m. to be at work at 5:30 p.m. Payne bathed Skylar, fed her, changed her diaper, and
played with her. During this time, Skylar was eating and acting normally and was not having any
breathing issues. After Payne left the house at 5 p.m. for work, she left Skylar in Ford’s care. The
following morning at about 4:15 a.m., Ford called her and told her that he had dropped Skylar and
that she needed to meet him at UNMC. At the time that Skylar was transported to the hospital she
was unresponsive and her breathing was not conducive to sustaining life. Skylar was treated at the
ER, then admitted to the pediatric intensive care unit (PICU). Doctors determined that Skylar
suffered from subdural hemorrhages, including a midline hemorrhage; retinal hemorrhages in both
eyes with the right side worse than the left (bleeding in the back of the eye in the retina); and a
global brain injury.
Ford was arrested and charged with intentional child abuse resulting in serious bodily
injury. On August 4, 2017, Payne called Ford at the jail and spoke to him about his involvement
in Skylar’s injuries. During the course of the call, Ford continued to assert that he dropped Skylar
and she hit her head on the crib and the floor. The State offered into evidence exhibit 25 which
contained two August 4 jailhouse telephone calls between Ford and Payne. This exhibit was
received into evidence over Ford’s objections which we will detail later in the analysis portion of
this opinion. When Ford’s attorney asked Payne questions about conversations that Payne had with
Sergeant Marlene Novotny prior to Payne’s jailhouse call with Ford, the State objected on the basis
of hearsay and relevance, which objections were sustained. Ford was allowed to make an offer of
proof which he contends the district court did not allow him to complete and which we discuss in
detail in the analysis portion of this opinion.
Payne testified that she informed medical personnel that a “week or week and a half prior”
to August 1, 2017, Skylar had fallen off a foot stool and “smacked her head” on the living room
floor. After this accident, Skyler was breathing and did not require a trip to the hospital. Evidence
adduced by the State established that, prior to August 3, Skylar had been developing normally and
there was nothing in Skylar’s medical history to explain her injuries.
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(b) State’s Experts
The State’s expert witnesses included Dr. Bridget Norton, Dr. Suzanne Haney, and Dr.
David Poage. Drs. Norton, Poage, and Haney all testified that abusive head trauma is a generally
accepted or recognized diagnosis in the medical community.
(i) Dr. Bridget Norton
After being seen in the emergency room, Skylar was moved to the PICU where she was
treated by Dr. Norton, who is board-certified in pediatrics and pediatric critical care. Prior to
conducting a physical examination of Skylar, Norton reviewed Skylar’s ER records and the results
of Skylar’s radiology exams.
Dr. Norton testified that Skylar suffered subdural bleeding in her brain which is caused
when blood vessels in the brain “tear and blood fills up that space between the dura[, a hard
covering that surrounds the outside of the brain and the spinal cord,] and the brain.” According to
Norton, subdural bleeding can be caused by “anything that forcefully moves the head back and
forth so that the brain moves within the skull.” Norton testified that, based upon the history that
she was provided, which was that Skylar had been dropped by her father and hit her head on the
crib and then the floor, and her review of radiology, “the story and the fall from a height of just
being in someone’s arms was not sufficient force to cause the degree of bleeding that we had.”
When Norton physically examined Skylar, Skylar was drowsy but would stir intermittently during
the exam, Skylar was breathing on her own, her eye exam was normal, and, other than her lower
level of consciousness, her neurological exam was “unremarkable.” Norton was concerned with
the amount of bleeding in Skylar’s brain placing Skylar at a risk for swelling, seizures, and brain
damage. Later that day, Skylar started having seizures and she was placed on multiple anti-seizure
medications. Norton also stated that they decided to put a breathing tube in to protect Skylar’s
airway and allow doctors “to be better able to control [Skylar’s] seizures and because of concerns
for ongoing injury to the brain and swelling and . . . intracranial pressure.” During the days that
Skylar was in the PICU, her condition worsened. Norton was concerned that Skyler had a degree
of brain swelling that was putting Skyler “at increased risk for increased intracranial pressure,
which is a risk of ongoing damage to the brain.”
Norton testified that a child with Skylar’s type of brain injury is in a potentially
life-threatening condition if left untreated and that she would consider this a “serious bodily
injury.” Further, Norton testified that, based upon her review of the radiology, her care of Skylar,
and how Skylar’s condition deteriorated, her opinion within a reasonable degree of medical
certainty as to the mechanism that she believed caused Skylar’s injuries was abusive head trauma
and that Skylar’s injuries were caused by some type of acceleration/deceleration.
(ii) Dr. Suzanne Haney
Dr. Haney is medical director of the Children’s Advocacy Team and is board certified in
pediatrics and child abuse pediatrics. She became involved in Skylar’s case after being contacted
by Skylar’s treating physicians at the PICU. Upon arriving at the PICU, Haney spoke with Skylar’s
parents, examined Skylar, and reviewed Skylar’s medical records, diagnostic images, and
laboratory information. According to Haney,
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Skylar had a brain injury which was evidenced by her seizures and on the MRI. She also
had bleeding around her brain, between her brain and her skull, called a subdural
hematoma, that was present both around, in between both halves of her brain, up
underneath it, and she had bleeding to the back of both eyes.
Haney testified that, based upon the history that she was provided, her care of Skylar, and
her observation of Skylar’s injuries, she determined that Skylar was a victim of abusive head
trauma. According to Haney, it was not possible for Skylar to have been dropped in the manner
described by Ford due to the severity of Skylar’s brain injury, the injuries to her eyes, and the
location of the bleeding which was all around, in between, and underneath her brain.
(iii) Dr. David Poage
Dr. Poage is the radiologist who reviewed Skylar’s CT and MRI scans. Poage testified that
he reviewed Skylar’s initial CT scan taken on August 3, 2017, and her August 5 MRI. He observed
several subdural hemorrhages, some of which were “acute” and others which appeared to be older.
He explained that, from a radiologist’s perspective, “acute” means that whatever caused the
subdural hemorrhage happened very recently from “minutes to maybe a couple of days” to the
time that the imaging is taking place. He noted that Skylar also sustained a subdural hemorrhage
along the midline of her brain. Dr. Poage explained that a subdural hemorrhage in children
especially along the midline, or middle between the two hemispheres of the brain, is more
indicative of non-accidental trauma. Poage also noted that Skylar suffered a “hypoxic-ischemic
injury,” a lack of oxygen and/or lack of blood flow to the brain, which injury occurred at the same
time as the injury that brought her to the hospital.
Poage stated that Skylar’s September 20, 2017, CT scan showed that her subdural
hemorrhages continued to grow and her brain had shrunk considerably. The December 1 MRI
showed chronic subdural hemorrhages and Skylar’s brain was much smaller than normal. He
testified that Skylar’s brain had essentially died in certain areas and her functioning as of that date
would be “minimal.”
Poage testified that it is possible to shake a child under the age of five resulting in a subdural
hemorrhage. He further testified that it is possible to shake a child under the age of one resulting
in a subdural brain bleed. Further, it is possible that a child could sustain a subdural brain bleed
without having visible symptoms and that Skylar could have sustained some type of trauma earlier
than August 3, 2017, and not been symptomatic.
He further testified that, based upon his training and experience, an accidental fall from
about 2½ feet would be “very unlikely” to cause the types of brain bleeds that were present in
Skylar’s CT and MRI images. He further testified that accidently dropping a child from a height
of 33 inches “would be very unlikely” to cause the degree of hemorrhage suffered by Skylar
“especially along the midline.” Poage testified that Skylar’s hypoxic-ischemic injury “was
something that you’d never expect . . . just from being dropped, whether two surfaces were hit or
not.” Poage stated that “[u]ntreated or not, hypoxic-ischemic injury doesn’t go away. And I didn’t
read anything further on this patient’s chart, but I would be shocked if there’s much function
because the brain is no longer functional, I’m sure. It’s mostly gone.” Finally, Poage testified that
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based upon his review of the CT and MRI images and the particular history that was provided in
this case, i.e., an accidental fall from a height of about 33 inches, his opinion, within a reasonable
degree of medical certainty as to the cause of Skylar’s injuries was “suspicious for child abuse.”
(c) Defense Experts
Ford called two witnesses to testify in his defense: Dr. Robert K. Rothfeder, a former
emergency room physician, and Kenneth Monson, Ph.D., a biomechanical engineer and associate
professor at the University of Utah.
(i) Dr. Robert K. Rothfeder
Dr. Rothfeder reviewed Skyler’s medical records, police reports, interviews, materials
from a 911 call, materials related to cell phone records, and Dr. Monson’s report in preparing for
this case. Rothfeder testified that in his opinion, based upon his education, training, and experience
as to a reasonable degree of medical certainty, Skylar suffered “blunt head trauma” which caused
her injuries. He further testified that an accidental cause could not be precluded, but that he also
could not rule out that the cause of Skylar injuries was intentional. When asked if, “based on your
education, training and experience, to a reasonable degree of medical certainty, is it possible for a
short fall from two or three feet to cause the injuries you’ve seen on Skylar?”, Rothfeder responded,
“I believe so.” Rothfeder further opined that the possible causes of Skylar’s symptoms included a
short fall and impact head trauma.
(ii) Kenneth Monson, Ph.D.
Monson is a biomechanical engineer and associate professor at the University of Utah.
Biomechanics is the application of mechanics to biological tissues or understanding of how the
human body responds to the application of force. Monson opined that a fall, as described by Ford,
had the “potential for producing significant injury.” Additionally, based upon his education,
training, experience, and research, Monson opined that Skylar’s injuries could have resulted from
the fall as described by Ford. However, Monson admitted that he could not rule out that the injuries
were inflicted intentionally.
(d) State’s Rebuttal Witness: Haney
The State called Haney as a rebuttal witness. Haney defined “abusive head trauma” as “the
application of force to a child by a caregiver which results in injury to the head or [its] content[s].”
Haney testified that she reviewed Skylar’s CT and MRI images and, based upon her review, Skylar
suffered multiple injuries, which she stated meant injuries incurred on different dates. Haney
testified that, based upon her training and experience, a short fall with Skylar hitting her head on
a crib and then hitting the floor was not a possibility given her injuries because with that type of
impact “you would expect a focal injury, if any at all.” According to Haney, based upon her work
as a pediatric child abuse doctor, she believed “that Skylar was violently shaken and/or slammed”
which caused her injuries.
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2. VERDICT AND SENTENCE
The district court found Ford guilty of the charged offense. Thereafter, the court sentenced
Ford to 10 to 20 years’ imprisonment with credit for 263 days served. Ford has timely appealed to
this court and is represented by the same counsel that represented him at trial and sentencing.
III. ASSIGNMENTS OF ERROR
Ford contends that the district court erred (1) in excluding certain evidence; (2) in not
allowing Ford to complete his offer of proof; and (3) in admitting into evidence exhibit 25, the
recorded telephone “jail call” of Payne and Ford. Ford also contends that (4) the evidence was
insufficient to support his conviction and (5) the sentence imposed was excessive.
IV. STANDARD OF REVIEW
A trial court has the discretion to determine the relevancy and admissibility of evidence,
and such determinations will not be disturbed on appeal unless they constitute an abuse of that
discretion. State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018).
An appellate court will sustain a conviction in a bench trial of a criminal case if the properly
admitted evidence, viewed and construed most favorably to the State, is sufficient to support that
conviction. State v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014). In making this determination,
we do not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate
explanations, or reweigh the evidence presented, which are within a fact finder’s province for
disposition. Id. Instead, the relevant question 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.
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Tucker, 301 Neb. 856, 920 N.W.2d 680 (2018).
V. ANALYSIS
1. ERRONEOUS EXCLUSION OF EVIDENCE
Ford’s first assignment of error challenges the trial court’s exclusion of evidence,
specifically his attempt to introduce Payne’s recollection of statements made by Sergeant Novotny
to Payne. In order to analyze this assignment, we must first provide context to the proposed
statements Ford desired to elicit. The State offered, as exhibit 25, the recorded telephone “jail call”
of Payne and Ford. During that call, Payne questioned Ford about whether he intentionally shook
their child, Skyler. In response to the State offering this recorded call, Ford attempted to question
Payne on the source of her information which led to her questions of Ford. Specifically, Ford’s
counsel attempted to question Payne about her prior conversations with Sergeant Novotny which
he argued “affected Payne’s state of mind . . . in that later jail call.” Brief for appellant at 27. The
State objected on the basis of relevancy and hearsay and the trial court sustained the State’s
objections. Following the court’s ruling, Ford made an offer of proof wherein he asserted that, if
Payne was allowed to testify about her conversation with Sergeant Novotny, Payne would testify
about statements made by Sergeant Novotny to Payne on why Novotny believed Ford engaged in
abusive behavior with their child. Ford argues that by precluding this testimony, the court excluded
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relevant testimony which would have demonstrated how Payne obtained her “state of mind” prior
to her call with Ford. Ford’s argument is misplaced.
“To be admitted at trial, evidence must be relevant, meaning ‘evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.’” State v. Rocha, 295 Neb.
716, 731, 890 N.W.2d 178, 193 (2017), quoting Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401
(Reissue 2016). “‘[I]f the evidence fails to alter the probabilities of the existence or nonexistence
of a fact in issue, the evidence is irrelevant.’” Id. at 731, 890 N.W.2d at 194, quoting State v.
Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999).
Here, the issue was whether Ford intentionally caused Skyler’s injuries. The record
previously established that Payne was not home at the time of the incident and had no personal
knowledge of how Skyler’s injuries occurred. By the time of the “jail call,” Ford had been arrested
on suspicion of having intentionally caused Skyler’s injuries. Payne’s call was an attempt by her
to probe Ford on the cause of Skyler’s injuries. Whatever information Sergeant Novotny shared
with Payne was of no consequence to the determination of the action because Payne’s state of
mind was not of consequence to the determination of the action. The purpose of the “jail call,” and
the State’s submission of the recorded call, was to elicit Ford’s reaction and response to the
questions that Payne posed to Ford. Unlike Payne’s state of mind, Ford’s reaction and response to
Payne’s questions was a fact that was of consequence to the determination of the action. In sum,
although Sergeant Novotny’s conversation with Payne, or Payne’s conversation with doctors,
police, or the nature of the charge itself may have impacted Payne’s “state of mind” in making the
call to Ford and questioning him, Payne’s state of mind had no relevance to the ultimate issue in
this case--whether Ford committed the knowing and intentional act of abuse which resulted in
serious bodily injury to Skyler.
This proposition is further exemplified by the court’s ruling on another question elicited of
Payne by Ford’s counsel. When counsel asked whether Payne had “a belief of what happened prior
to meeting with Sergeant Novotny,” the State objected on relevance grounds and the court
sustained the objection. In doing so, the court rightly determined that Payne’s state of mind was
completely irrelevant to the case. What Payne learned secondhand from Sergeant Novotny or
others, and any opinions or conclusions she drew from such information were completely
irrelevant to the proceeding. Because Sergeant Novotny’s prior conversation with Payne, both
non-percipient witnesses, were not relevant to the proceeding, we need not address whether
Sergeant Novotny’s statements to Payne were hearsay or nonhearsay due to the effect of the
statements on the “hearer” as was argued by Ford. See State v. Hansen, 252 Neb. 489, 562 N.W.2d
840 (1997) (state-of-mind exception to hearsay rule allows admission of extrajudicial statements
to show state of mind of declarant only if declarant’s then existing state of mind is material issue
in case). Similarly, the “effect on hearer” rule would allow the admission of a statement under its
governing principles only if the state of mind of the hearer is a material issue in the case. Because
we hold that Payne’s state of mind was not a material issue in the case, the statements made to her
were not relevant and we need not address an issue not meaningful to the outcome of the case. See
State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018) (appellate court not obligated to engage in
analysis not necessary to adjudicate case and controversy before it).
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2. INCOMPLETE OFFER OF PROOF
As we previously set forth, the recorded “jail call” between Payne and Ford was received
as an exhibit during trial. Following its admission, Ford attempted to question Payne about prior
conversations with Sergeant Novotny which were excluded by the court. Following the court’s
ruling, Ford attempted to make an offer of proof governing what Payne would have testified to if
allowed. In making the offer of proof, Ford argues that prior to concluding his full offer of proof,
he was cut off in an “unorthodox” way and prohibited from completing his offer. Brief for
appellant at 30. The full colloquy between Ford’s counsel and the court was as follows:
[Defense Counsel]: Your honor, if I may make an offer of proof?
THE COURT: You may.
OFFER OF PROOF EXAMINATION
BY [Defense Counsel]:
Q. Now, when you met with Sergeant Novotny, was she mainly telling you her
opinion on the case?
[State]: This is an offer of proof?
[Defense Counsel]: Yes, offer of proof.
THE COURT: As to which objection?
[Defense Counsel]: The last objection regarding the conversation and hearsay and
the state of mind --
THE COURT: Not the relevance objection?
[Defense Counsel]: And the relevance as will (sic).
THE COURT: Both? All right. You may proceed. You want to do it by question
and answer?
[Defense counsel]: Yes.
THE COURT: You may.
Q. (By [Defense counsel]) Was the bulk of the meeting with Sergeant Novotny . . .
telling you her opinion about what happened?
A. Yes.
Q. Was she using a commanding tone of voice?
A. Yes.
Q. Was she repeatedly saying it had to be intentional?
A. Yes.
Q. Did she in a commanding tone tell you to look at her at times?
A. Yes.
Q. Did she tell you that, we’re on your team as long as you’re on our team?
A. Yes.
Q. Prior to the hospital meeting with Sergeant Novotny, had you had concerns that
this was an intentional act?
[State]: I’m sorry. Does that conclude your offer of proof?
[Defense Counsel]: No.
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THE COURT: I think you are done with the offer of proof. The issues raised were
the hearsay and the tone. You’re now moving on to a new area. That will conclude the offer
of proof.
In the court’s opinion, the objections both remain sustained.
Ford argues that the court’s curtailment of his offer of proof prohibited him from fully establishing
the relevancy of Novotny’s statements to Payne. Specifically, Ford argues that, had the court not
cut him off, he could “connect how Novotny’s statement directly affected Payne since exhibit 25
has Payne emotionally yelling at Ford about Abusive Head Trauma at a time when Payne was very
emotional. The line of questioning was extremely relevant . . . and important for the defense to
explain exhibit 25.” Brief for appellant at 30.
Neb. Rev. Stat. § 27-103(1) (Reissue 2016) provides:
Error may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, and:
....
(b) In case the ruling is one excluding evidence, the substance of the evidence was
made known to the judge by offer or was apparent from the context within which questions
were asked.
“[I]n order to predicate error upon a ruling of the court refusing to permit a witness to
testify, or to answer a specific question, the record must show an offer to prove the facts sought to
be elicited.” State v. Schreiner, 276 Neb. 393, 407, 754 N.W.2d 742, 755 (2008). That said, the
offer itself need not be a detailed recitation of the excluded testimony but simply enough to provide
the general nature of the testimony so that an appellate court can properly review its effect. Cf.
Birkel v. Hassebrook Farm Serv., 219 Neb. 286, 363 N.W.2d 148 (1985). Here, Ford argues that
he was not allowed to expand enough in his offer of proof so as to demonstrate how the excluded
evidence was relevant to the court. We disagree.
Ford’s offer of proof clearly delineated that he believed Sergeant Novotny’s statements to
Payne and Sergeant Novotny’s impact on Payne were relevant to the case. The court ended the
offer of proof once Ford began to venture into a question governing whether Payne had
individually drawn conclusions about Ford’s guilt or innocence prior to her conversation with
Sergeant Novotny. As explained in the previous section of this opinion, Payne’s state of mind was
not relevant to the issue in this case. Ford’s offer of proof was more than adequate to apprise this
appellate court of the general nature and likely effect of the excluded testimony. Because Ford
made an offer of proof which adequately communicated the substance and likely effect of the
excluded testimony, this assignment of error is without merit.
3. PAYNE’S STATEMENTS CONTAINED IN “JAIL CALL”
Ford next argues that the district court improperly overruled his objection to the admission
of Payne’s statements to Ford contained in the “jail call” received into evidence as exhibit 25.
After the State offered exhibit 25 into evidence, Ford objected “on form except for the limited
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purpose to explain state of mind at the time of the phone calls.” That objection was followed by
the following colloquy:
[Defense counsel]: What happens is, there was a time when --
THE COURT: Excuse me . . . This is very simple. We’ve got a record of a
conversation that includes the defendant, which means this may be an admission. Do you
have an objection? And if so, give me the legal basis.
[Defense counsel]: I object to her [Payne’s] statements on there as far as 701 and
702.
THE COURT: Thank you. The objection will be overruled. [Exhibit] 25 will be
received.
At trial then, Ford’s objection was to all statements made by Payne to Ford during their jail
call on the basis that any or all such statements were a violation of Neb. Rev. Stat. § 27-701 or
§ 27-702 (Reissue 2016).
Section 27-701 provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or
inferences is limited to those opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding of his testimony or the
determination of a fact in issue.
Section 27-702 provides: “If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.”
We have not reproduced here the full transcript of the short 3-minute jail call between
Payne and Ford that is at issue. Suffice it to say that during the call, Payne referenced that there
was evidence that was consistent with a shaken child here and that she wanted to know whether
Ford did abuse Skyler so that medical personnel could be in a better position to help Skyler. Ford
then responded to Payne’s specific questions. Ford does not object to his responses to Payne’s
questions but objects to Payne’s portion of the dialogue as being inadmissible under rules 701 and
702.
The Nebraska Supreme court recently addressed a similar issue in State v. Rocha, 295 Neb.
716, 890 N.W.2d 178 (2017). In Rocha, the State offered a recorded interview between a police
interrogator and the defendant. The defendant objected arguing that allowing the interrogator’s
commentary was the equivalent of one witness testifying about the credibility of another. After
finding that the specific issue was one of first impression, and after reviewing pronouncements on
the issue from courts of numerous other jurisdictions, the Nebraska Supreme Court held:
We find the approach of the Michigan Supreme Court in [People v.] Musser[, 494
Mich. 337, 835 N.W.2d 319 (2013),] to be the most persuasive. A rule that would render
categorically inadmissible all statements by law enforcement in a recorded interview that
happened to implicate the defendant’s credibility would run the risk of excluding important
and necessary context to the defendant’s admissible responses. On the other hand, a rule
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that categorically allowed all such statements to be admitted would run the risk of allowing
the admission of irrelevant and potentially unfair prejudicial statements. The approach
articulated in Musser avoids both of these pitfalls. It also has the added virtue of not
creating any new evidentiary rules, but, rather, analyzing these types of statements within
the framework of the existing rules of evidence.
We hold that statements by law enforcement officials on the veracity of the
defendant or other witnesses, made within a recorded interview played for the jury at trial,
are to be analyzed under the ordinary rules of evidence. Such commentary is not admissible
to prove the truth of the matter asserted in the commentary. But it may be independently
admissible for the purpose of providing necessary context to a defendant’s statements in
the interview which are themselves admissible. The police commentary must be probative
and material in light of that permissible purpose of providing context to the defendant’s
responses. And even statements that are otherwise admissible may be excluded under rule
403. Upon request, a defendant is entitled to a limiting instruction that such statements are
to be considered only for the permissible purpose of providing context to the defendant’s
statements in the interview.
State v. Rocha, 295 Neb. at 740-41, 890 N.W.2d at 199.
Although the specific holding in Rocha involves statements made by law enforcement
officials in recorded interviews, the same concept applies here. After reviewing the entirety of the
short approximately 3-minute call, we hold that Payne’s dialogue with Ford was necessary to
provide context for Ford’s responses. Although a limiting instruction was not necessary because
the matter was tried to the court, the court’s response to another objection and the offer of proof
demonstrates that the court considered Payne’s statements from the recording only for contextual
purposes. First, as mentioned earlier in this opinion, Ford asked Payne whether “[s]he had a belief
of what happened prior to meeting with Sergeant Novotny.” The State objected on relevancy
grounds and the trial court sustained the objection. This ruling objectively demonstrates that the
court would not allow Payne to provide her opinion as to whether or not Ford committed the
alleged crime. Second, during the offer of proof, the court stopped Ford’s questioning of Payne
when he again appeared to venture into the area of eliciting Payne’s opinion on Ford’s guilt or
innocence again demonstrating the irrelevance of her opinion. Further, after reviewing the entirety
of the “jail call,” we note that there were no statements by Payne in the recorded “jail call” that
would amount to opinions as contemplated by rules 701 and 702. Instead, the statements and
questions by Payne were inquisitive in nature and offered and considered solely to provide context
to Ford’s responses. In short, the court did not err in allowing the recorded statement of Payne,
offered and received as exhibit 25, on the bases of rules 701 and 702. Ford’s claim is without merit.
4. INSUFFICIENCY OF EVIDENCE
Next, Ford contends that the evidence was insufficient to support his conviction. He
contends that no rational trier of fact could have found him guilty, beyond a reasonable doubt, of
the intentional element of child abuse. Specifically, he claims that the district court erred in (a)
finding sufficient evidence to support his conviction based upon expert witness testimony; (b) in
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finding sufficient evidence to support his conviction given the lack of corroborating evidence to
support abusive head trauma; and (c) that the State could not sufficiently account for the earlier
brain bleeds and the discrepancy of their expert testimony regarding Skylar’s brain bleeds.
As charged in this case, in order to find Ford guilty of child abuse resulting in serious
bodily injury, the State was required to prove, beyond a reasonable doubt, that Ford knowingly
and intentionally caused or permitted Skylar, a minor child, to be placed in a situation that
endangered her life or physical or mental health or was cruelly confined or cruelly punished and
resulted in serious bodily injury to Skylar. See § 28-707(1) and (7). In this case, Ford admitted that
he caused Skylar’s injuries. The only question was whether he had intentionally done so.
As we previously noted earlier, an appellate court will sustain a conviction in a bench trial
of a criminal case if the properly admitted evidence, viewed and construed most favorably to the
State, is sufficient to support that conviction. State v. Schuller, 287 Neb. 500, 843 N.W.2d 626
(2014). In making this determination, we do not resolve conflicts in the evidence, pass on the
credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are
within a fact finder’s province for disposition. Id. Instead, the relevant question 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.
Here, Ford has consistently maintained that he accidently dropped Skylar, that she hit her
head on her crib, and then hit her head on the floor. There is no dispute that Skylar was in Ford’s
care when she sustained her injuries. The issue is whether Ford caused Skylar’s injuries
intentionally. Despite Ford’s arguments to the contrary, the State adduced proof beyond a
reasonable doubt that Ford’s actions resulting in Skylar’s injuries were committed intentionally.
There is no question that on August 3, 2017, Skylar suffered a combination of devastating
injuries: subdural hemorrhaging including a midline hemorrhage, retinal hemorrhaging in both
eyes, and a global brain injury caused by a lack of oxygen and blood to the brain. The State’s
medical experts, Drs. Norton, Haney, and Poage, all testified that Skylar’s injuries could not have
been caused accidentally in the manner described by Ford. Both Drs. Norton and Haney opined,
within a reasonable degree of medical certainty, that the cause of Skyler’s injuries was abusive
head trauma. Even Ford’s two experts admitted that Skylar’s injuries could have been inflicted
intentionally.
We further reject Ford’s claim that the evidence was insufficient to support his convictions
because “the State’s exerts disagreed initially on how many events were presented on the
radiology.” Brief for appellant at 27. Even though Poage testified that Skylar’s radiology images
showed earlier brain bleeds, his testimony was also very clear that Skylar could have sustained
some type of trauma earlier than August 3, but was not symptomatic. The evidence established
that, prior to the August 3, 2017, incident, Skylar was developing normally and had only minor
health issues. The evidence established that Skyler was in Ford’s care on August 3 when she
suffered a serious brain injury. Multiple doctors testified that Skyler’s injuries could not have been
caused by an accident in the manner claimed by Ford and that the cause of her injuries was abusive
head trauma. When viewed in the light most favorable to the State, we find the evidence supports
Ford’s conviction, that is, that Ford knowingly and intentionally caused or permitted 7-week-old
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Skylar to be placed in a situation that endangered her life or physical or mental health or was
cruelly confined or cruelly punished and resulted in serious bodily injury to her.
5. EXCESSIVE SENTENCE
Ford contends that the sentence imposed was excessive. Ford was convicted of child abuse
resulting in serious bodily injury, a Class II felony. See § 28-707(1) and (7). The sentence imposed
of 10 to 20 years’ imprisonment is within the statutory sentencing range of 1 to 50 years’
imprisonment. See Neb. Rev. Stat. § 28-105 (Reissue 2016).
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. State v. Tucker, 301 Neb. 856, 920 N.W.2d 680 (2018); State v. Russell,
299 Neb. 483, 908 N.W.2d 669 (2018). Relevant factors customarily considered and applied are
the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the
offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the
commission of the crime. Id. The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life. State v. Tucker, supra;
State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018).
At the time the presentence investigation report was prepared, Ford was 23 years old,
single, with two dependents. Ford earned a GED and was unemployed at the time of the incident.
The probation officer conducting the presentence investigation interview noted that Ford
repeated numerous times that this situation was an accident and he never meant to harm
his daughter. He went on to specifically deny ever shaking her, or throwing her to the table
or ground as he reported was mentioned during his trial. He expressed a great deal of
remorse for not only his daughter’s injuries, but the predicament he has now left his
girlfriend and her children in.
Ford has a minimal criminal history with a misdemeanor conviction for third degree assault
and minor in possession for which he was sentenced to probation. However, only 5 days into his
term of probation, he was convicted of assault which ultimately led to his probation being revoked
and him being resentenced to 120 days in jail. Although Ford’s criminal history is minimal, two
out of his previous three convictions have involved the injury of others through his actions. During
Ford’s incarceration at the Douglas County Correctional Center awaiting trial in this matter, he
has incurred four disciplinary lockdown penalties between January 28 and March 22, 2018, for
issues related to refusing housing, threatening an inmate, contraband possession, and tattooing
activities. Ford’s counsel pointed out that other inmates at the DCCC have been targeting Ford due
to the charges he was facing and that Ford has been forced to defend himself. Additionally, Ford’s
score on the level of service/case management inventory placed him in the high risk category to
reoffend.
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Ford indicated that he has had experiences with marijuana, cocaine, methamphetamine,
mushrooms, heroin, acid, and during the previous year, he had been abusing prescription pills. He
further acknowledged that his substance abuse patterns had negatively affected his life including
contributing to him being shot and stabbed, contributed to relationship issues with his family, and
his prior association “with a negative caliber of individuals.” Ford scored in the maximum problem
risk area for drugs on the Substance Abuse Questionnaire which indicates “that drug abuse is
evident, and [Ford] should be considered to have a serious drug problem.” Ford also reported that
he has been diagnosed with depression, bipolar disorder, and a personality disorder and he further
appears to have documented anger management difficulties. Ford further reported that he suffered
“a traumatic brain injury while in the military after a fellow soldier committed suicide with a
grenade [while in] his vicinity.” He reported that his step-father had been “very physically and
mentally abusive towards him,” and that he has had two failed suicide attempts, but denied ever
spending time in a psychiatric facility. Ford also believes that he suffers from post-traumatic stress
disorder due to witnessing the aforementioned suicide of a fellow soldier. Despite acknowledging
his mental health issues, Ford related that he was inconsistent in taking his medication for his
mental health afflictions prior to his latest incarceration.
Based upon the facts that the sentence imposed was within the statutory sentencing range,
the seriousness of the offense, Ford’s likelihood to reoffend, his criminal history, that a lesser
sentence would depreciate the seriousness of the offense and promote disrespect for the law, the
sentence imposed was not an abuse of discretion.
VI. CONCLUSION
Having considered and rejected Ford’s assignments of error, we affirm his conviction and
sentence.
AFFIRMED.
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