In re Interest of Angel C. ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF ANGEL C.
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).
IN RE INTEREST OF ANGEL C., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
EFREN C., APPELLANT.
Filed November 5, 2019. No. A-18-1158.
Appeal from the Separate Juvenile Court of Douglas County: CHRISTOPHER E. KELLY,
Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Noelle M. Obermeyer for
appellant.
Donald W. Kleine, Douglas County Attorney, Anthony M. Hernandez, Laura E. Lemoine,
and Katherine G. Corwin, Senior Certified Law Student, for appellee.
MOORE, Chief Judge, and PIRTLE and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Efren C. appeals the adjudication of Angel C. as a minor child within the meaning of Neb.
Rev. Stat. § 43-247(3)(a) (Reissue 2016). Angel was removed from Efren’s home after Angel’s
stepsister accused Efren of inappropriately touching her. Efren contends that the juvenile court
erred in excluding certain evidence, in finding there was sufficient evidence to adjudicate Angel,
and in failing to grant a continuance. For the reasons stated below, we affirm.
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II. STATEMENT OF FACTS
Efren and his wife, the victim’s mother, reside in a home with Angel, age 7. Also residing
in the home were the victim’s mother’s son, age 14, and daughter, age 12. On April 27, 2018,
Efren’s 12-year-old stepdaughter (hereinafter referred to as the victim) reported that Efren had
inappropriately touched her. The following day, the State filed a juvenile petition alleging that the
parties’ three minor children were juveniles within the meaning of § 43-247(3)(a) due to Efren’s
faults or habits. Specifically, the petition alleged that Efren subjected a child to inappropriate
sexual touching and sexual situations; that Efren failed to provide proper parental care, support,
and/or supervision; and that due to these allegations, the parties’ three minor children were at risk
of harm. That same day, the parties’ three minor children were removed from their home. This
appeal involves only one of the minor children, Angel.
1. ADJUDICATION HEARING
The adjudication hearing was held over 3 days in September, October, and November
2018. The day before the scheduled adjudication hearing, the mother and Efren filed a joint motion
to continue the adjudication hearing on the basis that the victim had accused a sibling of
inappropriate sexual contact, that a new witness had just been identified as an unnamed visitation
worker, and that it was imperative to both the mother and Efren’s defense that the visitation worker
be identified and located so that the individual could be brought to testify before the court. The
State clarified that the information was also new to the State and that “there’s a belief that the child
made an allegation against a sibling, not that there actually [was a sexual assault committed].” The
juvenile court acknowledged that the parents’ concern was related to “having the ability to possibly
make a showing with respect to [the] credibility of the child who is endorsed to testify here today.”
The court declined to delay the start of the adjudication hearing, but stated it might entertain
another motion to continue “as we get deeper in.”
(a) Adjudication Hearing--Day 1
During the first day of the adjudication hearing, the State adduced testimony from the
victim and Omaha police officer Shannon Knuth.
The victim testified Efren is her stepfather and, during the period of time when she was
between 11 and 12 years old, he made her feel uncomfortable on approximately ten different
occasions. The victim described the first occasion as having occurred in the kitchen when Efren
came up from behind her and started hugging her and touching her breasts, vaginal area, and
buttocks over her clothes. The victim did not tell her mother because she did not think that her
mother would believe her. The victim testified that this happened more than once and that on some
of the other occasions, Efren would put his “private part” against her “butt” over her clothes. The
victim described another occasion when she entered Efren’s bedroom to tell him goodnight and he
touched her buttocks.
On cross-examination, the victim admitted that when she was “little,” she lied when she
told relatives that she did not have any change leftover after making a purchase. The victim
testified that she had a cell phone during the first 2 weeks of January 2018, but her parents took
the cell phone because she did not help with chores at home. Efren’s counsel asked the victim if
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she had a Facebook account and the State objected on the basis of relevance and Neb. Evid. R.
412, Neb. Rev. Stat. § 27-412 (Reissue 2016). Efren’s counsel stated:
Judge, this gets to motive as the timeline of events, per the parents, establishes that they
took [the victim]’s phone away for her activity on that phone, and I would like to address
. . . why that upset [the victim] and why that might speak to motive to fabricate.
[GUARDIAN AD LITEM FOR THE CHILDREN]: Your Honor, I would object
on foundation and to the contents of the messages. I think that she can ask [the victim]
about whether or not her parents did something to make her be mad at them, but I don’t
think that the contents are relevant to establishing motive, just the actions taken by her
parents.
[STATE’S ATTORNEY]: And, Your Honor, this also falls under 412. They’re
going to try and show that any type of sexual stuff that may or may not have happened on
Facebook may have caused this, that it’s sexual in nature. They didn’t provide any notice.
There’s a two-week requirement of notice and a motion that should be heard to see if that
information will be admissible in a civil trial under 412. That wasn’t done. There was no
notice given that they’re going to be presenting this. If it’s not sexual in nature, then it
wouldn’t be relevant.
So I would ask that it be inadmissible, the entire line of questioning regarding
Facebook.
THE COURT: Well, I’m not going to -- I’m going to sustain the objection, but . . .
I’m not prohibiting the entire line of questioning, but Facebook is off the table now. Go
ahead.
[EFREN’S COUNSEL]: Your Honor, if I may make the same show of proof that I
made regarding the previous statement under the 412 with the case law in State v.
Lavalleur.
THE COURT: Go ahead.
[EFREN’S COUNSEL]: And that case, again, allowed the admission being that the
information was to establish motive and not just as evidence of past sexual predisposition,
presexual behaviors. So just for clarification purposes, I can’t ask the client if she has a
Facebook account? Because that’s the only question I’ve asked.
THE COURT: I’m not going to let you get into what’s in any Facebook account,
so Facebook is off the table.
Efren’s counsel clarified:
Judge, just so we have a clear record, I anticipate that you would make the same ruling as
you did with Facebook and the cell phone with regards to any other information that I
would inquire about for Snapchat, WhatsApp, the Boost Mobile text message feature on
the phone in question. And so I would . . . just like to make the record clear that I would
like to make a line of inquiry, but I’m anticipating a limitation from the Court, and I would
ask a show of proof be made with reference to all of those other messaging systems and
phone content.
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THE COURT: You can make your offer of proof.
[EFREN’S COUNSEL]: Okay. And, Judge, I would make the same offer of proof,
that I believe that this is an exception to the 412 rule under the same case cited, [State v.
Lavalleur,] 289 Neb. 102, [853 N.W.2d 203 (2014),] where information went to establish
motive and is meant -- clearly, the statute is meant to stop harassing and humiliating the
witness; however, this would be a Sixth Amendment Right of my client to confront the
witness and speak, specifically, to motive and reason to falsify information.
THE COURT: I guess I should know would there be an objection to that line of
questioning from any party?
[STATE’S ATTORNEY]: Yes, Your Honor, there would be an objection from the
State. And the State would also argue that the confrontation clause has never been found
to be admissible or a requirement in civil matters. And this is a civil matter. The first line
of the Sixth Amendment is in all criminal actions.
THE COURT: And does that conclude your offer of proof. . . .
[EFREN’S COUNSEL]: Yes.
THE COURT: The objection is sustained.
As its second witness, the State called Knuth, who testified that she works in the child
victim sexual assault unit. Knuth became familiar with the victim after the victim made allegations
that Efren had inappropriate sexual contact with her. After conducting an investigation, Knuth
arrested Efren for the felony offense of third degree sexual assault of a child. Knuth also testified
that she determined that the victim and other children were at risk for harm if they remained in the
home. Knuth testified that, during her interview with the victim’s mother, the mother indicated
that she did not believe the victim’s allegations against Efren. Knuth testified that the mother
identified that 3 or 4 years ago, when the parties lived in Mexico, the victim had made another
allegation of sexual assault. The victim’s mother indicated that the false nature of that prior
allegation was one reason she believed that the victim was lying in the current case. Knuth also
testified that the mother attempted to show her the victim’s phone because the victim “was still
talking to the boy that allegedly sexually assaulted her in Mexico” and this boy was “older.” Knuth
also testified that the mother told her that “she had [the victim’s phone] that day, and . . . she had
taken the phone away from [the victim] and that’s why [the victim] was making up these
allegations.” Knuth testified that, although the mother attempted to show her text messages on the
victim’s cell phone, Knuth did not view them.
At the conclusion of the first day of the adjudication proceedings, Efren and the victim’s
mother renewed their motion to continue the proceedings with no objection from the State. The
court granted a continuance noting that the parties had only received notification the previous day
of the victim’s allegation of sexual assault made against her sibling and the issue might “affect
credibility issues.”
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(b) Adjudication Hearing--Day 2
When the adjudication hearing resumed on October 9, 2018, the State rested. No evidence
was presented by either the victim’s mother or the guardian ad litem (GAL) for the children. Efren
called the victim’s mother and the victim as witnesses.
The victim’s mother testified that, earlier in the year, she became concerned about the
victim’s behavior. She stated that in mid-April 2018, the school reported to her that teachers saw
the victim kissing a boy. The victim’s mother also reported that the victim was isolating herself in
her room while using her cell phone and was “acting strange[ly].” Due to her concerns with the
victim’s behavior, the victim’s mother sought “counseling help” for assistance with confronting
the victim over the victim’s behaviors, but they “were barely going to get started with counseling.”
The victim’s mother stated that, approximately 2 to 3 years ago, the victim had received
psychological counseling in Mexico for lying and “steal[ing] out of anxiety” but those problems
had been resolved.
The following colloquy then occurred between Efren’s counsel and the victim’s mother
regarding the victim’s Facebook name and password:
[EFREN’S COUNSEL]: Did you have a conversation with [the victim] about her
Facebook name and password?
A. Yes.
Q. Why?
[GAL FOR THE CHILDREN]: Objection, relevance. And I believe that this
evidence about the contents of her Facebook was precluded . . . during the State’s case in
chief . . . .
THE COURT: I remember. Where do you intend to go with this?
[EFREN’S COUNSEL]: I want to ask the mother questions about taking [the
victim]’s phone away, what materials were found on the phone that gave the mother cause
for concern, and what happened -- what the mother observed on the phone afterwards.
[STATE’S ATTORNEY]: Your Honor --
[GAL FOR THE CHILDREN]: And I think that --
[STATE’S ATTORNEY]: -- that would go under 412. That’s specifically what
412 --
THE COURT: Well, just a minute. Is it sexualized behaviors of the minor child
with anyone other than -- other than Efren . . . that you are trying to get to? Yes or no?
[EFREN’S COUNSEL]: Not sexualized behaviors, sexually-heightened
conversations that were taking place on the phone.
I don’t believe anyone has any knowledge of any video sex going on necessarily,
but I do believe that Mother had concerns based on phone calls that the mother received
while she was in possession of the phone, in addition to screen shots that the mother took.
This, I don’t believe, falls under 412 because there are -- these are statements. These
aren’t -- I’m not looking to assert that the child --
THE COURT: Statements of whom?
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[EFREN’S COUNSEL]: Statements that are made via text message by the owner
of the phone and the other participant, having conversations back and forth on Facebook
and text message.
THE COURT: Sexualized conversations?
[EFREN’S COUNSEL]: Yes, conversations that were sexually heightened,
although in my review there’s nothing -- there’s no evidence that this child was having
phone sex, which would be, I believe, conversations about sex through audio, nor do I have
reason to believe that she was having video sex, which would be her having sexualized
behavior through video functions on the telephone. But I do believe that there are
statements in conversations back and forth that Mother saw that gave her concern and gave
her a reason to take the phone away, which get to why I believe she’s made these allegations
against her father.
That would be -- that would be the defense -- defense’s case, that this is a retaliation
based on Mother and Father taking away the phone and also Mother and Father looking at
these conversations and having cause for concern; also, again, Mother receiving a phone
call that she has told me about on a previous occasion that is -- that is highly sexualized
and is a video phone. But [the victim] is not involved in that phone conversation at all. It’s
just the mother.
[GAL FOR THE CHILDREN]: Your Honor, may I respond:
THE COURT: Yes.
[GAL FOR THE CHILRDEN]: I still think that this goes to sexual predisposition,
but, in any event, under Leslie and Lavalleur, 412 still requires the notice for us to have a
hearing to determine this. So there was no notice given for us to even litigate this issue.
But even if they’re arguing that this is a motive to fabricate under Leslie or
Lavalleur, that does not permit them to go into the contents. They can certainly get into if
Mom took her phone away --
THE COURT: And I --
[GAL FOR THE CHILRDEN]: -- and it made the child mad, that’s fine, but --
THE COURT: And I agree. I’ll sustain the objection, but you are not precluded
from getting the fact, if, indeed, it is a fact, that the phone was confiscated from the child
by the parent, and make what you will of that.
[EFREN’S COUNSEL]: I’m sorry. Can I get --
THE COURT: You can’t get . . . into the contents on the phone.
[EFREN’S COUNSEL]: I can ask what the mother reviewed of the phone,
though --
THE COURT: No, you may not.
[EFREN’S COUNSEL]: -- after the fact?
THE COURT: You may ask her . . . I’m not going to do your case for you. You can
ask her if she took the phone away and, I think a general description of why. And I’m really
hesitant to even say that because you’re going to probably take that as far as you can go.
But the fact of the taking of the phone and what her belief is as to the motive of the child
from that point on.
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The objection is sustained.
[EFREN’S COUNSEL]: And, Your Honor, may I make a show of proof at this
time:
THE COURT: Yes, you can.
[EFREN’S COUNSEL]: Judge, I would point the Court to 257 Neb. 903 State of
Nebraska v. Richard Lessley. That’s an October 15, 1999 opinion.
....
While I know that the fact pattern [in Lessley] is quite different than the one [in]
the case at hand, I do believe that the holding is still relevant to our case at hand as I do
believe my client has a right to confront the witness about evidence related to the phone.
Specifically, I believe that the phone is not evidence of sexual actions in the past.
I’m simply trying to get admissible statements in. We’re not cross-examining at this time
the alleged victim, so the heart of 412 wouldn’t be applicable to someone who isn’t the one
that’s having these alleged sexual behaviors. But, again, I would point that I don’t believe
that we’re actually talking about sex acts at all. We’re talking about conversations on a
phone.
THE COURT: All right. And that is not an offer of proof. That is further argument.
The objection is still sustained.
Efren’s attorney resumed examination of the victim’s mother, who testified that she took
the victim’s phone away in mid-April 2018, which caused the victim to become “very upset,” quit
doing her household chores, stop talking to her mother and Efren, and continue “to lock herself
up.” After confiscating the victim’s phone the mother saw “concerning” things on it including
content of Facebook, Whatsapp (a text messaging app), and Instagram. The victim’s mother also
testified that she received concerning phone calls on the victim’s phone. The victim’s mother
testified that she told the victim that she had viewed the contents of the victim’s phone the day
before the victim made the allegations against Efren. The mother testified the victim got very angry
and responded “that she was going to hurt me where it hurt the most, that she was going to take
me to the police.” The victim’s mother opined that the victim made the allegations against Efren
in response to what her mother had “found on [the victim’s] phone.” When the State’s attorney
asked if the mother “believe[d] the stuff that you found made [the victim] make up these allegations
against Efren,” she responded, “Of course.”
Efren called the victim as his second witness. He asked her if she ever reported to her
visitation worker that her brother had touched her inappropriately. The State objected and Efren’s
counsel explained that the question was relevant because the victim’s allegations were similar, and
close in time, to the allegations the victim made against Efren. Efren’s counsel stated that he
wanted to know, “for impeachment purposes,” whether the victim made those statements, but the
State argued that a party cannot call, or recall, a witness solely to impeach the witness’ prior
testimony. Efren stated that he was not calling the victim solely for impeachment purposes, but
that he also wanted to know “what has been done with the allegations against her brother.” The
court sustained the State’s objection. Efren then made an offer of proof stating that, if allowed, the
victim would testify that she did make allegations against her brother to a visitation worker in early
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May 2018. Alternatively, Efren’s counsel stated that if the victim denied making allegations
against her brother, counsel would be able to, among other things, use the allegations for
impeachment purposes. The court continued to sustain the State’s objection.
(c) Adjudication Hearing--Day 3
The third and final day of the adjudication hearing was held on November 13, 2018. Efren
called Knuth to testify regarding the victim’s alleged statements accusing her brother of sexual
assault. Knuth testified that “an advocate . . . or a [Child Protective Services] worker” told her that
the victim had made a statement about her brother sexually assaulting her. Knuth did not make the
allegation a part of her investigation because the allegation was a “third-party disclosure” with
language barriers which could have led to a misinterpretation or misunderstanding; therefore, a
suggestion was made that the victim be placed in therapy for a possible therapeutic disclosure.
At the conclusion of the adjudication hearing, Efren requested another continuance because
three of his witnesses had not appeared despite subpoenas being issued. The court denied the
motion and the hearing concluded.
2. ADJUDICATION ORDER
The juvenile court found that Angel was a juvenile within the meaning of § 43-247(3)(a)
based upon its findings that Efren had subjected a child in the household to inappropriate sexual
contact and situations and that Angel was at a risk for harm in his father’s care. Efren has timely
appealed to this court.
III. ASSIGNMENTS OF ERROR
Efren contends that the juvenile court erred in (1) excluding evidence of the contents of the
victim’s cell phone and social media use on the basis that the evidence was barred by the rape
shield law, (2) finding that there was sufficient evidence to adjudicate Angel, (3) refusing to allow
Efren to question the victim regarding sexual assault accusations the victim made against her
brother, and (4) denying his request for a continuance to produce necessary witnesses who failed
to appear despite being subject to subpoenas.
IV. STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches a conclusion
independently of the juvenile court’s findings. In re Interest of Isabel P. et al., 293 Neb. 62, 875
N.W.2d 848 (2016).
An appellate court independently decides questions of law presented on appeal. State v.
Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). In proceedings where the Nebraska Evidence
Rules apply, the admissibility of evidence is controlled by such rules; judicial discretion is
involved only when the rules make discretion a factor in determining admissibility. Id. We review
for abuse of discretion a trial court’s evidentiary rulings on relevance, and whether the probative
value of evidence is substantially outweighed by the danger of unfair prejudice. Id. Whether
evidence is excluded under the rape shield statute is reviewed de novo as a matter of law. See State
v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014), disapproved on other grounds, 292 Neb. 424,
873 N.W.2d 155 (2016).
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An appellate court reviews a judge’s ruling on a motion to continue for an abuse of
discretion. Moreno v. City of Gering, 293 Neb. 320, 878 N.W.2d 529 (2016).
V. ANALYSIS
1. ADMISSIBILITY OF CONTENTS OF VICTIM’S CELL PHONE
AND VARIOUS SOCIAL MEDIA OUTLETS
Efren argues that the juvenile court erred in excluding relevant, probative evidence of the
contents of the victim’s cell phone and evidence regarding the victim’s use of various social media
outlets on the basis that the evidence was barred by § 27-412; that exclusion of the evidence
violated his right to confront his accuser; and that the court erred in refusing to allow the victim’s
mother to testify about the contents of the victim’s cell phone after the door was opened on the
State’s cross-examination.
(a) Exclusion of Evidence Pursuant to § 27-412
Efren’s counsel was precluded from questioning the victim’s mother regarding her
knowledge about the victim’s use of the cell phone and the mother’s concerns which preceded the
mother’s decision to confiscate the victim’s cell phone on the basis that the questioning violated
§ 27-412. During an offer of proof, Efren’s counsel stated, “I want to ask the mother questions
about taking [the victim]’s phone away, what materials were found on the phone that gave the
mother cause for concern, and what happened -- what the mother observed on the phone
afterwards.”
Efren also contends that the juvenile court erred in barring him from questioning the victim
about her use of Facebook, Snapchat, WhatsApp, and the Boost Mobile text message feature. Efren
argues that “[t]here is a significant amount of information that would not have touched on sexual
behavior or sexual predisposition, including the number of conversations, the names of the people
conversing, their ages, location, the topics of discussion, and a number of other questions.” Brief
for appellant at 22. He also argues that he sought “to establish a timeline of events regarding
activity on the account and when [the victim] had her phone taken away from her, which would
help establish a motive to fabricate because [the victim] was mad at her parents[.]” Id.
Section 27-412 provides, in pertinent part:
(1) The following evidence is not admissible in any civil or criminal proceeding
involving alleged sexual misconduct except as provided in subsections (2) and (3) of this
section:
(a) Evidence offered to prove that any victim engaged in other sexual behavior; and
(b) Evidence offered to prove any victim’s sexual predisposition.
(2)(a) . . . .
....
(b) In a civil case, evidence offered to prove the sexual behavior or sexual
predisposition of any victim is admissible if it is otherwise admissible under the Nebraska
Evidence Rules and its probative value substantially outweighs the danger of harm to any
victim and of unfair prejudice to any party. Evidence of a victim’s reputation is admissible
only if it has been placed in controversy by the victim.
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(3)(a) A party intending to offer evidence under subsection (2) of this section shall:
(i) File a written motion at least fifteen days before trial specifically describing the
evidence and stating the purpose for which it is offered unless the court, for good cause,
requires a different time for filing or permits filing during trial; and
(ii) Serve the motion on all parties and notify the victim or, when appropriate, the
victim’s guardian or representative.
(b) Before admitting evidence under this section, the court shall conduct a hearing
in camera outside the presence of any jury.
(We note that § 27-412 was amended effective May 18, 2019; however, that amendment is not
applicable to the instant case.)
Subject to several exceptions, § 27-412(1) bars “[e]vidence offered to prove that any victim
engaged in other sexual behavior” and “[e]vidence offered to prove any victim’s sexual
predisposition” in civil or criminal proceedings involving alleged sexual misconduct.
§ 27-412(1)(a) and (b). See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
Nebraska’s rape shield statute serves two purposes. First, the statute protects rape
victims from grueling cross-examination about their past sexual behavior or sexual
predisposition that too often yields testimony of questionable relevance. Second, the rape
shield statute prevents the use of evidence of the complaining witness’ past sexual conduct
with third parties or sexual predisposition from which to infer consent or undermine the
witness’ credibility. The rape shield statute is not meant to prevent defendants from
presenting relevant evidence, but to deprive them of the opportunity to harass and humiliate
the complaining witness and divert the jury’s attention to irrelevant matters.
Id. at 751, 915 N.W.2d at 809.
Evidence is relevant if it has “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.” Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2016). Relevant
evidence may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice. Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016). Unfair prejudice means an
undue tendency to suggest a decision based on an improper basis. State v. Munoz, 303 Neb. 69,
927 N.W.2d 25 (2019).
Here, Efren’s counsel was prohibited from questioning the victim, and the victim’s mother,
regarding the victim’s social media use and the contents of the victim’s cell phone on the basis
that such questioning violated Nebraska’s rape shield law. Efren sought to adduce this evidence to
establish that the victim was lying about the sexual abuse as retaliation for her mother taking the
victim’s cell phone away following her discovery of the contents on that phone. The State argues
that “[d]igging deeper into the specific ‘concerning content’ on [the victim]’s phone has low
probative value and opens a dangerous path to confusing the issues before the Court.” Brief for
appellee at 25.
We first note that the State objected to the contents of the phone and other social outlets on
the basis of relevancy, unfair prejudice, and § 27-412. After listening to arguments from both
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counsel, the court appeared to sustain the objection on the basis of § 27-412. In that regard, Efren
argues the court erred for two separate reasons. First, Efren argues that the contents of the phone
and other social media outlets included both sexual content and non-sexual content and that
§ 27-412 would not apply to the nonsexual content. Second, Efren argues that, as to that portion
of the information involving sexual content, the evidence was not being offered to prove the
victim’s other sexual behavior or sexual propensity, but instead was being offered to show that the
victim’s parents’ removal of the phone and the highly personal information contained therein
provided sufficient motive for the victim to fabricate a claim against Efren in retaliation for the
phone’s removal.
As to Efren’s first argument that certain content on the phone or other social media outlets
contained some material that was nonsexual, we agree that § 27-412 would have no application.
Accordingly, as to that content, the court should have conducted a relevancy and unfair prejudice
analysis governing the content of the phone and social media outlets based upon the State’s
additional objections on those bases.
As to Efren’s second argument that the sexual content being offered was not being offered
to prove prior sexual behavior or sexual propensity, we acknowledge that § 27-412 does not
exclude evidence being offered for a purpose other than to prove the victim engaged in other sexual
behavior or to prove the victim’s sexual predisposition, and further acknowledge that in civil
matters, even if offered to prove other sexual behavior or sexual predisposition, § 27-412 does not
necessarily act as a complete bar to said evidence. As the rule states for civil cases, “evidence
offered to prove the sexual behavior or sexual predisposition of any victim is admissible if it is
otherwise admissible under the Nebraska Evidence Rules and its probative value substantially
outweighs the danger of harm to any victim and of unfair prejudice to any party.” § 27-412(2)(b).
Thus, as to both the nonsexual content and the sexual content the court was obligated, in light of
the State’s objection, to undergo a relevancy analysis in order to determine whether the contents
of the phone and other social media outlets was admissible here.
However, we are also cognizant of the Nebraska Supreme Court’s statements in State v.
Schreiner, 276 Neb. 393, 407, 754 N.W.2d 742, 755 (2008):
Pursuant to Neb. Evid. R. 103(1)(b), [Neb. Rev. Stat. § 27-103(1)(b) (Reissue 1995),] error
may not be predicated upon a ruling which excludes evidence unless a substantial right of
the party is affected, and the substance of the evidence was made known to the judge by
offer or was apparent from the context within which questions were asked. So, in 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.
The offer 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. Birkel
v. Hassebrook Farm Serv., 219 Neb. 286, 363 N.W.2d 148 (1985).
Here, when the trial court asked Efren to make an offer of proof as to the contents of the
phone and other social media outlets that Efren desired to admit into evidence, the following
colloquy ensued:
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[EFREN’S COUNSEL]: And, Your Honor, may I make a show of proof at this
time.
THE COURT: Yes, you can.
[EFREN’S COUNSEL]: Judge, I would point the Court to 257 Neb. 903, State of
Nebraska v. Richard Lessley. That’s an October 15, 1999 opinion.
....
While I know that the fact pattern [in Lessley] is quite different than the one [in]
the case at hand, I do believe that the holding is still relevant to our case at hand as I do
believe my client has a right to confront the witness about evidence related to the phone.
Specifically, I believe that the phone is not evidence of sexual actions in the past.
I’m simply trying to get admissible statements in. We’re not cross-examining at this time
the alleged victim, so the heart of 412 wouldn’t be applicable to someone who isn’t the one
that’s having these alleged sexual behaviors. But, again, I would point that I don’t believe
that we’re actually talking about sex acts at all. We’re talking about conversations on a
phone.
THE COURT: All right. And that is not an offer of proof. That is further argument.
The objection is still sustained.
We agree with the trial court that, although Efren was provided an opportunity to make an
offer of proof governing the contents of the phone and other social media outlets he desired to
elicit (which opportunity was provided on more than one occasion), Efren never described the
content in a manner which would allow this court to determine whether the contents were relevant
or unfairly prejudicial to this proceeding. We further note that Efren did elicit testimony from the
victim’s mother that she believed the victim fabricated the claim against Efren because the mother
had taken the victim’s phone which contained evidence of “troubling materials” and, during the
period of the time when the victim’s phone was in her possession, the victim’s mother received a
sexualized phone call from a man she could not identify. On balance, because Efren did proffer
evidence of his theory that the victim fabricated the claim in response to her phone being taken
away, and because there is nothing in the record that provides a sufficient description of the
phone’s contents or the contents of other social media outlets (other than that which was admitted
into evidence) that allows this court to determine whether the content was relevant to the
proceeding or whether the exclusion of that content affected a substantial right of Efren, we hold
that Efren’s offer of proof failed to demonstrate that the court excluded relevant evidence and that
the exclusion of that content unfairly prejudiced a substantial right of Efren in connection with this
adjudication proceeding.
(b) Additional Claims Regarding Cell Phone Evidence
Efren also claims that the exclusion of the content of the victim’s cell phone and social
media outlets violated his right to confront his accuser and that the door was opened to the
testimony by questions elicited by the State during cross-examination.
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We first note that in relation to Efren’s Confrontation Clause assertion, the Nebraska
Supreme Court has previously held in In re Interest of Brian B. et al., 268 Neb. 870, 875, 689
N.W.2d 184, 189 (2004):
Because this is a juvenile proceeding and not a criminal case, the heightened standards of
the Confrontation Clause are not applicable. See In re Interest of Kelley D. & Heather D.,
256 Neb. 465, 590 N.W.2d 392 (1999). Compare State v. Vaught[, 268 Neb.] 316, 682
N.W.2d 284 (2004) (Confrontation Clause analysis of child’s statement to physician under
§ 27-803(3)). Instead, the proper analysis is whether [the parent’s] due process rights were
violated. See In re Interest of Kelley D. & Heather D., supra.
In further explaining due process rights in connection with a juvenile proceeding, the Supreme
Court went on to hold:
The concept of due process embodies the notion of fundamental fairness and defies
precise definition. In re Interest of Kelley D. & Heather D., supra; In re Interest of L.V.,
240 Neb. 404, 482 N.W.2d 250 (1992). As we noted in In re Interest of Kelley D. & Heather
D., Neb. Rev. Stat. § 43-279.01(1)(d) (Reissue 2004) states in part that where a parent or
custodian appears in an adjudication proceeding, the court shall inform the parties of the
right to confront and cross-examine witnesses. In deciding due process requirements in a
particular case, we must weigh the interest of the parent, the interest of the State, and the
risk of erroneous decision given the procedures in use. In re Interest of Kelley D. & Heather
D., supra. Due process is flexible and calls for such procedural protections as the particular
situation demands. Id.; In re Interest of L.V., supra.
In re Interest of Brian B. et al., 268 Neb. at 875-76, 689 N.W.2d at 189-90.
Here, we note that Efren was not prohibited from confronting the victim and actively
cross-examined the victim during the trial. Instead, Efren argues that not being able to
cross-examine the victim on the content of her phone or social media outlets was a denial of due
process. But as we noted before, Efren failed to provide the court with any description of the
content of the phone or other social media outlets for this court to determine whether the content
was relevant or whether exclusion of the content unfairly prejudiced a substantial right of Efren in
connection with the adjudication proceeding. Because Efren was able to confront the victim and
elicit testimony that the removal of the victim’s phone provided the victim with motive to fabricate
the claim, we fail to see how the court’s prevention of Efren from delving into the phone’s contents
deprived Efren of “fundamental fairness” here and Efren did not provide the court with any context
within which we could determine that the exclusion of this evidence unfairly prejudiced a
substantial right of Efren. Because of this, we hold that Efren’s assignment that his due process
rights were violated fails.
Similarly, in relation to his claim that the State opened the door to this testimony, in light
of the State’s objection, the testimony still had to be relevant in order to justify its admission, and
without a sufficient description of its contents to enable this court can determine its relevancy or
prejudicial effect, Efren’s assignment on this basis similarly fails.
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2. FINDING SUFFICIENT EVIDENCE
TO SUPPORT ADJUDICATION
Second, Efren claims that the court erred in finding that there was sufficient evidence to
adjudicate Angel.
In In re Interest of Kane L. & Carter L., 299 Neb. 834, 845-46, 910 N.W.2d 789, 798-99
(2018), the Nebraska Supreme Court stated:
To obtain jurisdiction over a juvenile at the adjudication stage, the court’s only
concern is whether the conditions in which the juvenile presently finds himself or herself
fit within the asserted subsection of Neb. Rev. Stat. § 43-247 (Reissue 2016). Section
43-247(3)(a) outlines the basis for the juvenile court’s jurisdiction and grants exclusive
jurisdiction over any juvenile “who lacks proper parental care by reason of the fault or
habits of his or her parent, guardian, or custodian.”
The purpose of the adjudication phase is to protect the interests of the child. The
Nebraska Juvenile Code does not require the separate juvenile court to wait until disaster
has befallen a minor child before the court may acquire jurisdiction. While the State need
not prove that the child has actually suffered physical harm, Nebraska case law is clear that
at a minimum, the State must establish that without intervention, there is a definite risk of
future harm. The State must prove such allegations by a preponderance of the evidence.
Efren argues that the court erred in adjudicating Angel. He contends that the State failed to
prove, by a preponderance of the evidence, that Efren sexually assaulted Angel’s step-sister and
that the evidence actually supported that the victim fabricated the claim against Efren to retaliate
against him and the victim’s mother for taking the victim’s phone. In support of this theory, Efren
points to the State’s failure to call any other person in the household to corroborate the victim’s
allegations and documents evidence of the victim’s prior history which could lead a factfinder to
conclude the victim was capable of fabricating the allegations. That said, the victim testified at
trial, under oath, to specific allegations of sexual misconduct which, if true, would clearly support
Angel’s adjudication as a child within the meaning of § 43-247(3)(a). See In re Interest of W.C.O.,
220 Neb. 417, 370 N.W.2d 151 (1985) (holding father’s previously abusive acts against another
minor child is sufficient basis for juvenile court’s intervention regarding that father’s parental
rights with different child). Further, Detective Knuth testified that, based upon forensic interviews
with the victim’s siblings and the interviews of the victim and her mother, she concluded that a
sexual assault had occurred. And although we conduct a de novo review of the record, we note
that where credible evidence is in conflict on a material issue of fact, we may consider and give
weight to the fact that the trial judge heard and observed the witnesses and accepted on version of
the facts rather than another. See In re Interest of Jac’Quez N., 266 Neb. 782, 669 N.W.2d 429
(2003). We find that upon our de novo review of the record, while giving weight to the fact that
the trial judge heard and observed the witnesses and found the victim’s testimony to be credible,
there is sufficient evidence in the record to support the court’s determination that Angel comes
within the meaning of § 43-247(3)(a).
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3. REFUSAL TO ALLOW QUESTIONING OF VICTIM REGARDING
NEW SEXUAL ASSAULT ALLEGATIONS
Efren next claims that the court erred in refusing to allow him to question the victim
regarding a separate sexual assault accusation the victim made against her brother.
This trial took place over three separate days in September, October, and November 2018.
This assignment of error relates to the court’s ruling governing questions posed to the victim about
her separate accusation of a sibling of inappropriate sexual contact which Efren’s counsel
attempted to elicit on the second day of trial nearly 1 month after the trial had commenced and
following a continuance. Prior to the first day of trial in September, Efren had requested a
continuance of the adjudication hearing on the basis that he desired to pursue new information
about the victim’s possible sexual assault accusation against her brother which accusation
apparently was brought to the parties’ collective attention. In connection with that motion, the
State indicated “there’s a belief that the child made an allegation against a sibling, not there
actually [was a sexual assault committed].” The court acknowledged the parents’ concern related
to “having the ability to possibly make a showing with respect to [the] credibility of the child who
is endorsed to testify here today.” The court denied the motion to continue but acknowledged it
might entertain a later motion “as we get deeper in.” At the end of the first day of trial, the court
ultimately granted the continuance noting that the parties had only been notified the previous day
of the victim’s allegation against her brother and the issue might “affect credibility issues.”
The victim testified on the first day of trial and Efren did not raise questions about the
alleged accusation involving her brother at that time. Instead, in October 2018, Efren recalled the
victim and attempted to ask questions about the separate allegation involving the victim’s brother
now nearly one month following the commencement of trial. The following colloquy then ensued
in relation to an alleged statement the victim made to a woman named Vanessa who the victim
identified as a person who was present during visitations with her mother after the victim was
removed from her home:
Q. Was there ever an occasion that you talked to Vanessa about being touched by
your brother. . . ?
[STATE’S ATTORNEY]: Objection, your honor. Relevance.
THE COURT: What is the relevance, Counsel?
[EFREN’S COUNSEL]: Judge, I believe that the statement is relevant because it is
mere weeks after the allegations against the father. It’s close in time. It’s highly relevant
because it’s the same allegations the father is facing.
And further, Judge, I believe that the State has deemed that the statements were
false statements, and so I just want to know whether or not she made these statements for
impeachment purposes.
[STATE’S ATTORNEY]: So then she -- Your Honor, if she’s calling her witness
simply to impeach her, that’s not permissible [either].
[EFREN’S COUNSEL]: Judge, I’m not calling her simply to impeach her. I,
actually, want to know what has been done with the allegations against her brother,
specifically.
THE COURT: The objection is sustained.
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The court then provided Efren with an opportunity to make an offer of proof. In connection
with that offer, Efren’s counsel stated as follows:
Well, Your Honor, I believe that [the victim] would testify one of two ways. I
believe that, if allowed, she would testify that she did make allegations against her brother
to a visitation worker who was employed through Beneficial early in May of 2018. I believe
that would be her testimony because that’s what is contained in the IA report. And I’ve
talked to other individuals who confirm that these allegations were communicated to them.
In the alternative, there is a chance that she would testify here today that she did
not make any allegations against her brother . . . . While I can’t be sure of that, I wanted to
explore that opportunity to understand what happened with the rest of the investigation
with regards to the internal procedures of both Promiseship and Project Harmony and then
the Omaha Police Department.
I’m well aware of the fact there are no allegations about [the victim’s brother] in
the filing that the County Attorney has done, although it’s my understanding that the State
has been made aware of these allegations coming from the [victim] previously.
If allowed -- if she were to testify that these allegations -- that she did make them,
it would allow me to further question other caseworkers in this particular case as to what’s
being done to get a better picture of how the State -- whether or not the State believes the
allegations to be true or not and what they are doing to address them.
If she were to testify that she didn’t make these allegations, I would be able to use
this as impeachment testimony; however, that’s not the only reason that I’m doing this
because she could very well testify that she did make allegations against the brother. I don’t
know what she will say today, but I believe that I should have that opportunity.
Following this offer of proof and after hearing further argument from Efren’s counsel, the
court ultimately ruled as follows:
What I am hearing, then, is that you’ve recalled this witness and made this witness
your own witness for the purposes of, essentially, kind of a concise fishing expedition to
see if you can walk her into saying something that would lead to this witness being
impeached, either by her own testimony or testimony of others. It’s impermissible to call
a witness to set them up for impeachment. And so the ruling will stand as it is, and the child
is released.
Efren argues that the testimony was relevant and that the court erred in excluding it. In its
ruling, although the court appeared to focus more on the issue of Efren calling the witness simply
to impeach her, Efren actually made a second argument in relation to its relevance. That second
argument was that, in the event the victim acknowledged the accusation, Efren desired to further
pursue the outcome of that allegation in relation to the current accusation. We will discuss each
argument independently.
First, counsel argued in the offer of proof that if the victim denied the accusation against
her brother, she should be able to impeach the victim to show that the victim did make the
accusation thereby attacking the victim’s credibility. But as the Nebraska Supreme Court noted in
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Nickolizack v. State, 75 Neb. 27, 105 N.W. 895 (1905), that tactic is impermissible. In Nickolizack,
the defendant was on trial for sexual assault and, in connection with that charge, the prosecution
attempted to elicit testimony about a prior sexual assault which the defendant denied. The
prosecution then called a separate witness in order to establish that the defendant was being
untruthful about the collateral event. But in doing so, the Nebraska Supreme court held:
The rule is too well established to admit of question that, where a witness is cross-examined
on a matter collateral to the issues, he cannot, as to his answer be contradicted by the party
putting the question. When a party, on cross-examination, asks a witness an immaterial
question, he is concluded by the answer and will not be permitted to call a witness to
contradict it. McDuffie v. Bentley, 27 Neb. 380; Carpenter v. Lingenfelter, 42 Neb. 728;
Farmers Loan & Trust Co. v. Montgomery, 30 Neb. 33; Johnston v. Spencer, 51 Neb. 202.
A witness cannot be cross-examined as to any fact which is collateral and irrelevant to the
issues, for the purpose of contradicting him by other evidence if he should deny it, thereby
discrediting his testimony. Carter v. State, 36 Neb. 481. The rule is perhaps more strongly
stated in Republican Valley R. Co. v. Linn, 15 Neb. 234, where it is said:
“A party who on cross-examination of a witness asks him an immaterial question
is concluded by his answer and cannot call another witness to impeach him.”
That this evidence was incompetent and immaterial there can be no question. In
McAllister v. State, 112 Wis. 496, it was held: “On a trial for an assault with intent to rape,
evidence of an attempt of accused to commit a similar crime on another person is
inadmissible.”
In Elliott v. State, 34 Neb. 48, where the accused was a witness in his own behalf,
the prosecuting officer on cross-examination questioned him as to his being charged with
the commission of a similar independent offense, one not connected with the crime for
which he was being tried, and such cross-examination was held to be highly improper and
prejudicial.
Nickolizack v. State, 75 Neb. at 29-30, 105 N.W. at 896-97.
In Efren’s offer of proof, he was suggesting that, if the victim denied the allegation, it was
Efren’s intent to pursue evidence on this collateral issue in order to impeach her credibility. If this
was the basis for recalling the victim, the court did not err in finding that cross-examining the
victim on this collateral and irrelevant matter (as we discuss in the next paragraph) in order to
impeach her testimony was improper.
Alternatively, if the victim was to acknowledge the accusation, Efren stated in his offer of
proof:
I wanted to explore that opportunity to understand what happened with the rest of the
investigation with regards to the internal procedures of both Promiseship and Project
Harmony and then the Omaha Police Department.
I’m well aware of the fact there are no allegations about [the victim’s brother] in
the filing that the County Attorney has done, although it’s my understanding that the State
has been made aware of these allegations coming from [the victim] previously.
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If allowed -- if she were to testify that these allegations -- that she did make them,
it would allow me to further question other caseworkers in this particular case as to what’s
being done to get a better picture of how the State -- whether or not the State believes the
allegations to be true or not and what they’re doing to address them.
So Efren’s offer of proof was not that he could put on evidence to show the victim made a
false claim against her brother. Instead, Efren requested the opportunity to put on evidence to
determine what might have happened in connection with that accusation. In its order, the court
referred to Efren’s offer of proof as suggesting a “fishing expedition” in connection with that
collateral issue and we agree. The Nebraska Supreme Court very recently considered a similar
scenario in State v. Lee, 304 Neb. 252, ___ N.W.2d ___ (2019), wherein the Supreme Court
affirmed the district court’s denial of a defendant’s motion seeking to admit testimony regarding
a different sexual assault involving the victim’s brother in the defendant’s sexual assault trial. The
Nebraska Supreme Court held:
[The victim]’s brother had not been convicted or adjudicated of the allegations that he had
sexually assaulted [the victim]. As a result admission of the evidence would have led to a
potentially distracting “trial within a trial” which would have substantially risked confusing
the issues and misleading the jury. Moreover, an inquiry into whether [the victim] was also
abused by her brother would have done nothing to offset [the second victim]’s testimony
that Lee had abused her.
Id. at 275, ___ N.W.2d at ___. Similarly, Efren’s counsel admittedly was uncertain what had
happened regarding any allegation made by the victim concerning her brother and sought to
conduct a “trial within a trial” in connection with that collateral issue. We hold that on the basis of
Efren’s offer of proof, the court did not err in finding that the line of questioning of the victim
lacked relevance. This assignment of error fails.
4. DENIAL OF REQUEST FOR CONTINUANCE
Finally, Efren contends that the court erred in denying his request for a continuance to
produce necessary witnesses who failed to appear despite being subject to subpoenas.
Neb. Rev. Stat § 25-1148 (Reissue 2016) governs the requirements for requesting a
continuance. Section 25-1148 requires that the motion be in writing and supported by an affidavit.
Although it is not determinative, an appellate court considers whether the moving party complied
with § 25-1148 in determining whether the trial court abused its discretion in granting or denying
a motion to continue a trial. See, State v. Perez, 235 Neb. 796, 457 N.W.2d 448 (1990); State on
behalf of Keegan M. v. Joshua M., 20 Neb. Ct. App. 411, 824 N.W.2d 383 (2012); In re Interest of
Azia B., 10 Neb. Ct. App. 124, 626 N.W.2d 602 (2001). The failure to comply with § 25-1148 is a
procedural defect that affects the technical rights of an opposing party. See State on behalf of
Keegan M. v. Joshua M., supra. It does not affect the opposing parties’ substantial rights. Id.
Here, Efren argues that he subpoenaed a total of four witnesses to appear at the November
13, 2018, adjudication hearing. The court dismissed the first witness after the State objected that
this witness had been present during prior testimony in violation of the sequestration order. After
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the court dismissed the first witness, Efren’s counsel informed the court that his next three
witnesses were unavailable even though they had been subpoenaed to testify. Defense counsel
requested a continuance to present the necessary witnesses.
Efren contends that the court’s denial of his motion for a continuance deprived him of a
reasonable opportunity to present a defense. However, Efren’s counsel only stated that the first
witness’ testimony would go to the victim’s credibility and that regarding that other witnesses,
“[t]here is vital information that we would like to have these witnesses testify to.” However,
counsel also admitted “[w]e have had an extremely difficult time being in contact with one, in
particular, so to state that I know what she could testify to would be untrue.” Since Efren’s counsel
did not provide an offer of proof to establish what testimony counsel expected to elicit from the
witnesses, Efren could not establish any prejudice from the court’s denial of his request for a
continuance. There is no abuse of discretion where a party cannot establish prejudice from the
denial of a request for a continuance. See, Veik v. The Tilden Bank, 200 Neb. 705, 265 N.W.2d
214 (1978) (no abuse of discretion where district court denied defendant’s motion to continue
following defendant’s objection to withdrawal of plaintiff’s rest where defendant’s objections were
stated in general terms and stated no basis in fact as to how prejudice would arise if continuance
was not granted); Korte v. Betzer, 193 Neb. 15, 225 N.W.2d 30 (1975) (district court’s denial of
plaintiff’s motion for continuance not abuse of discretion where written motion was presented on
morning of scheduled trial and plaintiff did not support motion by affidavit in evidence or
testimony).
VI. CONCLUSION
Having considered and rejected Efren’s assigned errors, the order of the juvenile court is
affirmed.
AFFIRMED.
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