State v. Kozisek ( 2015 )

Decisions of the Nebraska Court of Appeals
STATE v. KOZISEK 805
Cite as 22 Neb. Ct. App. 805
State of Nebraska, appellee, v.
Ryan E. Kozisek, appellant.
___ N.W.2d ___
Filed March 24, 2015. No. A-14-022.
1. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal
case, a motion for new trial is addressed to the discretion of the trial court, and
unless an abuse of discretion is shown, the trial court’s determination will not
be disturbed.
2. Trial: Evidence: Appeal and Error. The admission of demonstrative evidence
is within the discretion of the trial court, and a judgment will not be reversed on
account of the admission or rejection of such evidence unless there has been a
clear abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
4. Trial: Testimony. Testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact.
5. Trial: Testimony: Witnesses. Opinion testimony by a lay witness is permit-
ted only where it is rationally based on the perception of the witness and it is
helpful to a clear understanding of his testimony or the determination of a fact
in issue.
6. ____: ____: ____. Opinion testimony by a lay witness is generally admissible
where it is necessary and advisable as an aid to the jury, but it should be excluded
whenever the point is reached at which the trier of fact is being told that which it
is itself entirely equipped to determine.
7. ____: ____: ____. A lay witness’ function is to describe what he has observed,
and the trier of fact will draw a conclusion from the facts observed and repro-
duced by the witness.
8. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial of
a criminal case, whether an error in admitting or excluding evidence reaches a
constitutional dimension or not, an erroneous evidential ruling results in prejudice
to a defendant unless the State demonstrates that the error was harmless beyond
a reasonable doubt.
9. Trial: Evidence: Verdicts: Juries: Appeal and Error. Evidentiary error is harm-
less when improper admission of evidence did not materially influence the jury
to reach a verdict adverse to substantial rights of the defendant. Harmless error
review looks to the basis on which the trier of fact actually rested its verdict; the
inquiry is not whether in a trial that occurred without the error a guilty verdict
would surely have been rendered, but, rather, whether the actual guilty verdict
rendered in the questioned trial was surely unattributable to the error.
10. Jurisdiction: Prosecuting Attorneys: Indictments and Informations. A pros-
ecutor is required to file an information listing the offense in the county with
jurisdiction over that offense.
Decisions of the Nebraska Court of Appeals
806 22 NEBRASKA APPELLATE REPORTS
11. Prosecuting Attorneys: Witnesses: Indictments and Informations. A prosecu-
tor must endorse the names of witnesses known to the prosecutor at the time the
information is filed.
12. Witnesses: Indictments and Informations. The purpose of Neb. Rev. Stat.
§ 29-1602 (Reissue 2008) is to notify the defendant as to witnesses who may
testify against the defendant and give the defendant an opportunity to investi-
gate them.
13. Rebuttal Evidence: Witnesses: Indictments and Informations. The require-
ment of endorsement of the State’s witnesses on the information has no applica-
tion to rebuttal witnesses.
14. Trial: Rebuttal Evidence. Rebuttal evidence is confined to new matters first
introduced by the opposing party and is not an opportunity to bolster, corroborate,
reiterate, or repeat a case in chief.
15. ____: ____. Rebuttal evidence is limited to that which explains, disproves, or
counteracts evidence introduced by the adverse party.
16. Trial: Rebuttal Evidence: Appeal and Error. The abuse of discretion standard
is applied to an appellate court’s review of a trial court’s ruling on the admissibil-
ity of rebuttal testimony.
17. Trial: Juries: Evidence. Demonstrative exhibits are defined by the purpose for
which they are offered at trial—to aid or assist the jury in understanding the evi-
dence or issues in a case.
18. Trial: Evidence: Testimony: Proof. Demonstrative exhibits are admissible if
they supplement the witness’ spoken description of the transpired event, clarify
some issue in the case, and are more probative than prejudicial.
19. ____: ____: ____: ____. Demonstrative exhibits are inadmissible when they
do not illustrate or make clearer some issue in the case; that is, when they are
irrelevant, or when the exhibit’s character is such that its probative value is sub-
stantially outweighed by the danger of unfair prejudice.
20. Trial: Evidence: Testimony. Demonstrative exhibits are relevant only because of
the assistance they give to the trier of fact in understanding other real, testimo-
nial, and documentary evidence.
21. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court, whether erroneously or not, would have been sufficient
to sustain a guilty verdict.
Appeal from the District Court for York County: Alan G.
Gless, Judge, and J. Patrick Mullen, Judge, Retired. Reversed
and remanded for a new trial.
Mark E. Rappl for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Irwin, Riedmann, and Bishop, Judges.
Decisions of the Nebraska Court of Appeals
STATE v. KOZISEK 807
Cite as 22 Neb. Ct. App. 805
Riedmann, Judge.
INTRODUCTION
Ryan E. Kozisek was convicted in the district court for
York County of intentional child abuse resulting in death. He
appeals, arguing that his motion for new trial should have been
granted because of the erroneous admission of opinion testi-
mony and improper rebuttal evidence. He also claims that the
district court erred in overruling his objection to a demonstra-
tive video. We agree that the district court abused its discretion
in overruling the motion for new trial, because the admis-
sion of the opinion testimony constituted prejudicial error. We
therefore reverse, and remand for a new trial.
BACKGROUND
Kozisek was charged with intentional child abuse result-
ing in death following the death of his 4-month-old daughter,
Kaley Kozisek (Kaley). Kozisek married Kassandra Roper
(Kassandra) in 2008. Their first daughter was born in January
2009, and their second daughter, Kaley, was born in September
2010. Kozisek was disappointed when he and Kassandra
found out their second child would be a girl, and he became
“[m]ore stressed [and d]epressed” after Kaley was born. He
did not understand why Kaley cried so much, and Kassandra
recalled him saying that he “hated” Kaley. He also told a
coworker that he “hated” Kaley and told another coworker
that Kaley cried so much that he felt like “shaking [her] to the
point where [she] would stop crying.”
Kaley had “milk and soy protein intolerance [and] spit up
a lot” during feedings. Kassandra described her as a “[f]ussy”
eater, but otherwise, as generally healthy. Kaley contracted
the stomach flu in early January 2011, however, so Kassandra
called the pediatrician because Kaley was vomiting. Around
that same time, Kassandra noticed an indentation on the back
of Kaley’s head and mentioned it to the pediatrician when
Kaley was in her office on January 17. Kaley also saw her
pediatrician on January 21 for her 4-month checkup. At that
visit, she was bright-eyed, very alert, developing appropriately,
and breathing comfortably. According to Kassandra, Kaley
was also “fine” on January 22 and 23 and played with toys,
Decisions of the Nebraska Court of Appeals
808 22 NEBRASKA APPELLATE REPORTS
giggled, and smiled. Kaley was still fussy during feedings, but
according to Kassandra, that was normal for her.
Kozisek quit his job in January 2011, forcing Kassandra to
find employment while Kozisek stayed home with his daugh-
ters. On Kassandra’s first day of work, January 24, she got up
around 3 a.m., and before leaving for work, she checked on
Kaley, who was sleeping “perfectly fine.” When she called
home around 10 a.m., Kozisek said Kaley was “breathing kind
of funny” and put the telephone up to Kaley so Kassandra
could hear her breathing. Kassandra thought Kaley sounded
“a little bit different,” but she was not too concerned and said
she would look at Kaley when she got home around 1 p.m. At
12:18 p.m., Kozisek called the 911 emergency dispatch service
and reported that Kaley was barely breathing, limp, and start-
ing to turn blue.
When emergency medical services initially arrived, Kaley
was unresponsive and did not have a pulse. She was initially
taken to a hospital in York, Nebraska, and then shortly thereaf-
ter, she was “life-flighted” to a hospital in Omaha, Nebraska.
Kaley died the following day.
At trial, the State called several expert witnesses who tes-
tified that Kaley’s injuries were not caused accidentally. An
ophthalmologist who examined Kaley at the hospital in Omaha
observed extensive hemorrhaging in the back of her eyes. He
opined that the cause of Kaley’s injuries was nonaccidental
trauma and could think of no other causes that would explain
Kaley’s retinal hemorrhaging.
A child abuse pediatrician also examined Kaley at the hos-
pital in Omaha. She noticed that Kaley’s eyes were fixed and
widely dilated, which is an indication of severe brain injury.
Because Kaley’s eyes were so widely dilated, the child abuse
pediatrician could look through the pupils and see the back
of Kaley’s eyes, where she “very clearly” observed blood. A
CT scan showed evidence of severe brain injury. The back of
Kaley’s skull was depressed, an injury that is referred to as
a “ping pong skull fracture” (ping pong fracture), because it
looks like the indentation that occurs when “a ping pong ball
[is] pushed in.” Kaley also had bleeding between her brain and
skull all around, including fresh blood, and severe swelling to
Decisions of the Nebraska Court of Appeals
STATE v. KOZISEK 809
Cite as 22 Neb. Ct. App. 805
the brain. According to the child abuse pediatrician, it was not
the blood or blood pressure in Kaley’s brain that caused her to
be ill, but her brain had been damaged by the same force that
caused the bleeding. In the child abuse pediatrician’s opin-
ion, Kaley suffered from abusive head trauma and the injury
occurred after the night of January 23, 2011.
Finally, the coroner’s physician who performed the autopsy
on Kaley on January 26, 2011, testified during the State’s
case in chief. He observed a cluster of bruises on the top of
Kaley’s head, as well as fresh blood, which is a manifestation
of blunt force trauma. He also observed a subdural hemor-
rhage and subarachnoid hemorrhage, meaning she had bleed-
ing in the connective tissues between the scalp and the brain.
He further found bleeding around the optic nerves in both of
her eyes extending into the retinas. The coroner’s physician
concluded that parts of the subdural hematoma were at least
3 days old; however, the subarachnoid hemorrhage, retinal
hemorrhages, and bruising on the top of the head were no
more than 1 day old. The coroner’s physician opined that
Kaley’s cause of death was blunt force trauma to the head
and brain.
Kassandra was called as a witness for the State. During her
direct examination, the following exchange occurred:
Q Now during the interview with the state patrol
. . . you continually denied that - - 100 percent that . . .
Kozisek would have anything to do with the injuries to
Kaley; is that correct?
A I remember saying that, yes.
Q Again, I don’t know how many times that you denied
it but it was numerous times?
A Correct.
Q And this was during your interview on the 24th of
January, 2011?
A Correct.
Q Have you come to change your opinion?
[Defense counsel]: Your Honor, objection. Two rea-
sons. One, it calls for an improper opinion. Two, it’s an
ultimate issue for the jury to decide.
THE COURT: Overruled.
Decisions of the Nebraska Court of Appeals
810 22 NEBRASKA APPELLATE REPORTS
Q . . . Have you changed your opinion on whether or
not the injuries were caused by [Kozisek]?
A Yes, I have.
Q And why was it that you continued to say that he
didn’t - - or look - - reflecting back on the 24th?
A I was in shock. I honestly did not know what hap-
pened. I thought being with somebody for 10 years,
how would they be able to hurt their own child. I never
thought that he would do anything like that.
Kassandra said that she and her older daughter moved out
of the family home in March 2011 and that she ultimately
dissolved her marriage with Kozisek and moved to a differ-
ent city.
Kozisek did not testify at trial, but his prior statements were
introduced through several witnesses. He denied injuring Kaley
and asserted that her death was caused by a series of tragic
accidents, beginning with the ping pong fracture on the back
of her head. He repeatedly claimed that while he was at home
with his daughters on January 24, the older daughter fell or
jumped off of a chair onto Kaley, which caused Kaley’s breath-
ing to change.
At trial, Dr. Janice Ophoven testified in Kozisek’s defense.
She is a medical doctor specializing in forensics and pedi-
atric forensics. In Dr. Ophoven’s opinion, there was insuf-
ficient evidence to conclude that Kaley’s injuries and death
were the result of abuse. Dr. Ophoven believed that the ping
pong fracture put pressure on the veins in the back of Kaley’s
head, which increased intercranial pressure. Increased inter-
cranial pressure is also associated with bleeding in the eyes.
Dr. Ophoven believed that Kaley’s vomiting and fussiness in
the days leading up to her death were evidence of complica-
tions from increased intercranial pressure and that the older
daughter’s falling onto Kaley potentially caused a spike in
pressure that shut down circulation to her brain and caused
cardiac arrest.
Dr. Ophoven also testified that in the last 10 years, there
has been a shift in the literature and science involving what is
known as shaken baby syndrome. She claimed that it has been
discovered that no matter how hard or how long you shake a
Decisions of the Nebraska Court of Appeals
STATE v. KOZISEK 811
Cite as 22 Neb. Ct. App. 805
baby, the amount of force that can be generated is insufficient
to cause the brain injury and retinal hemorrhaging that is so
commonly seen in abused children. As a result, according to
Dr. Ophoven, “the scientific basis for the original theory has
now become controversial.”
After the conclusion of Dr. Ophoven’s testimony, the State
indicated its intention to call a rebuttal witness. Kozisek
objected, but his objection was overruled. The State then called
Dr. Daniel Davis, a forensic pathologist and deputy medical
examiner in Oregon, to testify on rebuttal. Dr. Davis testified
that he disagreed with Dr. Ophoven’s opinion. He believed that
the ping pong fracture was unrelated to Kaley’s death and that
her vomiting was associated with her continued feeding issues.
If the fracture were crimping the central vein in the back
of Kaley’s head as Dr. Ophoven claimed, Dr. Davis said he
would expect to see symptoms immediately after the fracture
occurred, but the fracture was nearly healed.
Dr. Davis testified that what is present in this case are the
classic signs of a shaken baby. First, he disagreed with the
notion that Kaley experienced cardiac arrest, and instead, he
asserted that because she was unresponsive and not breathing
but her heart was still beating, she was in respiratory arrest,
which occurs as a result of interference with the brainstem.
In addition, when a baby is shaken, the brain rotates inside
of the head, which causes the veins on both sides of the cen-
tral vein to tear and bleed over the surface of the brain and
into the subdural space, which is exactly what was seen in
Kaley. Moreover, what is seen in virtually all shaken baby
cases is significant hemorrhage into the eyes, as was seen in
Kaley’s eyes.
Dr. Davis explained that when a baby is shaken, the brain
is “basically stirred,” and as a result, millions of nerve fibers
throughout the brain are torn at a microscopic level. That causes
the signals in the brainstem controlling alertness, breathing,
and heart rate to be lost, which causes sudden unresponsive-
ness, changes to breathing for a few minutes, and then the ces-
sation of breathing. He said that “it happens identically every
time” because the effect on the brainstem is so profound in
shaking due to shearing at the microscopic level.
Decisions of the Nebraska Court of Appeals
812 22 NEBRASKA APPELLATE REPORTS
To help illustrate Dr. Davis’ explanation of the effects of
shaking a baby, the State played a demonstrative video that
Dr. Davis helped create approximately 10 years ago. Kozisek
objected to the video, but his objections were overruled. Dr.
Davis said that he was very heavily involved in the production
of the video because he was the source of the accuracy of the
medical information contained in it. He said that he has used
the video about a dozen previous times in court and that it
has also been used by other medical professionals in a variety
of courtrooms throughout the country. The video is a graphic
animation of the injuries that occur in a baby’s brainstem when
the baby is shaken. Dr. Davis described the video as “a demon-
strative aid to help [him] explain the mechanism of injury
in shaking.”
Dr. Davis testified that the difference between his opinion
on intercranial pressure and Dr. Ophoven’s was “cause and
effect.” He believes that the increase in Kaley’s intercranial
pressure was an effect of the injuries she sustained, but Dr.
Ophoven believed the pressure increase caused Kaley’s inju-
ries. According to Dr. Davis, shaking a baby injures the brain,
and the brain’s major reaction to injury is swelling. When the
brain swells, intercranial pressure increases. Dr. Davis stated
that Dr. Ophoven’s opinion that increased pressure somehow
caused everything else to happen was “backwards.” He also
stated that he could not “buy in” to the theory that the older
daughter’s falling on Kaley, which he noted was not even a
substantiated fact, caused Kaley’s death.
Dr. Davis was also asked to respond to Dr. Ophoven’s claim
that shaken baby syndrome is now a controversial diagnosis.
He explained that “rather than just calling everything shaken
baby,” the suggestion now, when it is unclear whether there
was also trauma, is to call it “abusive head trauma,” which
encompasses shaking, shaking with impact, and impact. The
goal of this new position by physicians was not to detract from
shaking as a mechanism of abusive head trauma but to broaden
the terminology to account for the multitude of injuries that
result from abusive head trauma. Thus, physicians are using the
term “abusive head trauma” instead of “shaken baby” because
Decisions of the Nebraska Court of Appeals
STATE v. KOZISEK 813
Cite as 22 Neb. Ct. App. 805
it is more inclusive of all of the mechanisms that can happen
to children.
After the conclusion of evidence and deliberation, the
jury found Kozisek guilty of intentional child abuse result-
ing in death. Kozisek filed a motion for new trial challenging
Kassandra’s opinion testimony, the State’s rebuttal expert, and
use of the demonstrative video. The district court found that
the jury could infer Kassandra’s opinion of Kozisek’s guilt
from her testimony and allowing this testimony was error.
However, because there was abundant evidence adduced by
the State to show Kozisek’s guilt, the court found the error
harmless. It also found no error in admitting the State’s rebut-
tal expert or the demonstrative video. Accordingly, the district
court denied Kozisek’s motion for new trial. Kozisek was sen-
tenced to 35 to 50 years’ incarceration. He has now appealed
to this court.
ASSIGNMENTS OF ERROR
Kozisek assigns that the district court erred in (1) denying
his motion for new trial after concluding that the admission
of Kassandra’s opinion testimony was improper but harmless
error, (2) denying his motion for new trial because the State’s
rebuttal evidence did not respond to new matters introduced
by him, and (3) overruling his objection to the demonstra-
tive video.
STANDARD OF REVIEW
[1] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not
be disturbed. State v. Ramirez, 287 Neb. 356, 842 N.W.2d
694 (2014).
[2] The admission of demonstrative evidence is within the
discretion of the trial court, and a judgment will not be
reversed on account of the admission or rejection of such evi-
dence unless there has been a clear abuse of discretion. State
v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), abrogated
on other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d
749 (2010).
Decisions of the Nebraska Court of Appeals
814 22 NEBRASKA APPELLATE REPORTS
[3] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. State v. Ramirez, supra.
ANALYSIS
Opinion Testimony.
Kozisek asserts that the district court erred in denying his
motion for new trial after concluding that Kassandra’s opinion
testimony was improper but harmless error. He claims allowing
Kassandra to infer her opinion of Kozisek’s guilt was not only
erroneous, but materially influenced the jury’s decision.
The district court concluded that although Kassandra did
not specifically give her opinion, the implication that she now
believes Kozisek caused Kaley’s injuries is clear from her tes-
timony. Kozisek asserts that allowing Kassandra to state her
opinion of his guilt was error. We agree.
[4-7] Testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces
an ultimate issue to be decided by the trier of fact. Neb.
Rev. Stat. § 27-704 (Reissue 2008). Opinion testimony by
a lay witness is permitted only where it is rationally based
on the perception of the witness and it is helpful to a clear
understanding of his testimony or the determination of a fact
in issue. See Neb. Rev. Stat. § 27-701 (Reissue 2008). It is
generally admissible where it is necessary and advisable as an
aid to the jury, but it should be excluded whenever the point
is reached at which the trier of fact is being told that which it
is itself entirely equipped to determine. State v. William, 231
Neb. 84, 435 N.W.2d 174 (1989). A lay witness’ function is to
describe what he has observed, and the trier of fact will draw
a conclusion from the facts observed and reproduced by the
witness. See id.
In the present case, Kassandra’s testimony was not objec-
tionable for the reason that it embraced the ultimate issue in
the case, that is, Kozisek’s guilt. However, her opinion failed
to meet the § 27-704 requirement that it be “otherwise admis-
sible” because it lacked sufficient foundation to show that her
testimony was rationally based on her perception. The only
Decisions of the Nebraska Court of Appeals
STATE v. KOZISEK 815
Cite as 22 Neb. Ct. App. 805
information elicited from Kassandra was that she initially did
not think Kozisek had anything to do with Kaley’s injuries,
but that she has since changed her opinion. We do not know,
however, the basis for her change in opinion. This leaves
the record in doubt as to whether her belief of Kozisek’s
guilt is an expression of her actual knowledge or merely an
expression of her opinion, which is impermissible. See State
v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993). Moreover,
Kassandra’s opinion would not be helpful to the fact finder
because she was merely drawing a conclusion based on the
same evidence that was being presented to the jury. We there-
fore agree with the district court that allowing Kassandra to
testify that she has changed her opinion regarding Kozisek’s
guilt was error.
[8,9] Having concluded that the district court erred in allow-
ing Kassandra’s testimony as to her opinion of Kozisek’s guilt,
we must now determine whether such error was harmless. In
a jury trial of a criminal case, whether an error in admitting
or excluding evidence reaches a constitutional dimension or
not, an erroneous evidential ruling results in prejudice to a
defend­ant unless the State demonstrates that the error was
harmless beyond a reasonable doubt. State v. Cox, 231 Neb.
495, 437 N.W.2d 134 (1989). Evidentiary error is harmless
when improper admission of evidence did not materially influ-
ence the jury to reach a verdict adverse to substantial rights of
the defendant. State v. Freemont, 284 Neb. 179, 817 N.W.2d
277 (2012). Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty ver-
dict would surely have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely
unattributable to the error. Id.
Here, the implication from Kassandra’s testimony that she
changed her opinion is that she now, at a minimum, questions
whether Kozisek had something to do with Kaley’s injuries
or, worse, now believes that he intentionally caused them.
Who better than Kozisek’s then-wife and mother of his chil-
dren would know whether Kozisek was capable of the crime
with which he was charged? Given the spousal relationship
Decisions of the Nebraska Court of Appeals
816 22 NEBRASKA APPELLATE REPORTS
between Kassandra and Kozisek, we cannot say that the ver-
dict rendered against Kozisek was surely unattributable to
her testimony. Although Kassandra was not an expert, the
weight of her opinion differed because of her relationship
with Kozisek. See Simon v. Drake, 285 Neb. 784, 829 N.W.2d
686 (2013).
In Simon v. Drake, the Nebraska Supreme Court recognized
the differing weight a witness’ testimony may have depend-
ing upon his relationship with the party against whom he is
testifying. In Simon v. Drake, a medical malpractice action,
the defendant was allowed to elicit testimony from one of
the plaintiff’s treating physicians that the needle size used
by the defendant was within the range of the proper needle
size for the procedure at issue. He had not been designated
as an expert. The trial court found this to be harmless error,
and on appeal, we agreed. Upon further review, the Nebraska
Supreme Court reversed. It reasoned that the treating physi-
cian’s testimony was not substantially similar to the testimony
of the parties’ designated experts because “[c]ompared to the
testimony of a hired expert, a juror was likely to give great
weight to [the treating physician’s] opinion because he was
[the plaintiff’s] treating physician and testifying as an expert
against his own patient.” Id. at 794, 829 N.W.2d at 693. The
court went on to explain that the relationship between a patient
and a treating physician was one of confidence and trust and
that therefore, the jury would have given significant weight
to that testimony. The court stated that it could not conclude
that the weight the jury likely would have given to the treating
physician’s opinions was not the “tipping point” for finding in
favor of the defendant, especially since the defendant’s only
expert conceded he would have used a different needle size. Id.
at 796, 829 N.W.2d at 694.
Here, we determine that the jury would have given signifi-
cant weight to Kassandra’s testimony, given the spousal rela-
tionship between her and Kozisek. And we cannot conclude
that the weight given to this testimony was not the “tipping
point” for finding against Kozisek, especially when the medi-
cal evidence was conflicting and complex. See id. We therefore
conclude that the State failed to prove beyond a reasonable
Decisions of the Nebraska Court of Appeals
STATE v. KOZISEK 817
Cite as 22 Neb. Ct. App. 805
doubt that the admission of Kassandra’s opinion of Kozisek’s
involvement in Kaley’s death was harmless error. Accordingly,
we reverse the conviction.
Rebuttal Evidence.
Although the foregoing determination resolves this appeal,
we nonetheless consider the remaining assignment of error,
because it presents issues which are likely to reoccur in the
new trial we must order, as further explained below.
Kozisek argues that the district court erred in denying his
motion for new trial because the State’s rebuttal evidence was
improper. He asserts that it was unfair for the State to call an
unendorsed rebuttal expert and that doing so denied him an
opportunity to depose and effectively confront the witness.
Kozisek also claims that the State’s rebuttal expert did not
respond to new matters introduced by his expert; rather, the
State used its rebuttal expert to improperly bolster and reiterate
its case in chief. We disagree.
[10-12] Neb. Rev. Stat. § 29-1602 (Reissue 2008) requires
a prosecutor to file an information listing the offense in the
county with jurisdiction over that offense. The prosecutor must
also endorse the names of witnesses known to the prosecutor
at the time of the filing. See id. The purpose of § 29-1602
is to notify the defendant as to witnesses who may testify
against the defendant and give the defendant an opportunity to
investigate them. State v. Molina, 271 Neb. 488, 713 N.W.2d
412 (2006).
[13] But it has long been the rule in this state that the
requirement of endorsement of the State’s witnesses on the
information has no application to rebuttal witnesses. Id. See,
also, State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000);
State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977); Griffith
v. State, 157 Neb. 448, 59 N.W.2d 701 (1953). Thus, the State
was not required to provide Kozisek with Dr. Davis’ name
prior to trial.
[14-16] Kozisek also claims that Dr. Davis’ testimony did
not respond to new matters raised by Dr. Ophoven. Rebuttal
evidence is confined to new matters first introduced by the
opposing party and is not an opportunity to bolster, corroborate,
Decisions of the Nebraska Court of Appeals
818 22 NEBRASKA APPELLATE REPORTS
reiterate, or repeat a case in chief. State v. Sandoval, 280
Neb. 309, 788 N.W.2d 172 (2010). It is limited to that which
explains, disproves, or counteracts evidence introduced by the
adverse party. Id. The abuse of discretion standard is applied
to an appellate court’s review of a trial court’s ruling on the
admissibility of rebuttal testimony. Id.
An argument similar to Kozisek’s was proffered and rejected
by the Nebraska Supreme Court in State v. Swillie, 218 Neb.
551, 357 N.W.2d 212 (1984). There, the defendant contended
that the rebuttal testimony should have been presented in the
State’s case in chief because it only corroborated the State’s
other witnesses. The Supreme Court iterated its prior hold-
ing that in a criminal prosecution, any testimony, otherwise
competent, which tends to dispute the testimony offered on
behalf of the accused as to a material fact is proper rebuttal
testimony. See id. Thus, the court concluded that because the
testimony tended to dispute testimony offered on behalf of
the defendant as to a material fact, it was properly offered in
rebuttal. Id.
Similarly, in the present case, Dr. Davis disputed Dr.
Ophoven’s testimony as to a number of material facts, includ-
ing Kaley’s cause of death and whether shaken baby syndrome
is now a controversial diagnosis. Further, Dr. Ophoven claimed
that the cause of death in cases such as this should be deter-
mined by a forensic pathologist, and Dr. Davis was the only
one of the State’s expert witnesses who was a forensic patholo-
gist. Accordingly, we cannot find that the district court abused
its discretion in allowing Dr. Davis to testify as a rebuttal
witness. Therefore, Kozisek’s motion for new trial was prop-
erly denied.
Demonstrative Video.
Finally, Kozisek argues that the district court erred in over-
ruling his objection to the demonstrative video played during
Dr. Davis’ testimony. We find no merit to this argument.
[17-20] Demonstrative exhibits are defined by the pur-
pose for which they are offered at trial—to aid or assist
the jury in understanding the evidence or issues in a case.
Decisions of the Nebraska Court of Appeals
STATE v. KOZISEK 819
Cite as 22 Neb. Ct. App. 805
State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).
Demonstrative exhibits are admissible if they supplement the
witness’ spoken description of the transpired event, clarify
some issue in the case, and are more probative than prejudi-
cial. Id. Conversely, they are inadmissible when they do not
illustrate or make clearer some issue in the case; that is, when
they are irrelevant, or when the exhibit’s character is such that
its probative value is substantially outweighed by the danger
of unfair prejudice. Id. They are relevant only because of the
assistance they give to the trier of fact in understanding other
real, testimonial, and documentary evidence. Id.
In the present case, the video was used to assist Dr. Davis
in explaining what happens when a baby is shaken. Dr. Davis
disagreed with Dr. Ophoven’s theory that the ping pong frac-
ture was crimping the central vein in Kaley’s head and that
the older daughter’s falling on Kaley threw off her equilib-
rium and caused her to suffer cardiac arrest. First, Dr. Davis
opined that Kaley suffered respiratory arrest, not cardiac
arrest, because although she was unresponsive and not breath-
ing, her heart was still beating. He believed that this occurred
as a result of interference with her brainstem from abusive
head trauma. He explained that shaking a baby causes the
brain to move around in the head which results in the tear-
ing of nerve fibers at a microscopic level. The signals in the
brainstem that control alertness, breathing, and heart rate are
lost, which is why the child suddenly becomes unresponsive
and stops breathing. The video visually depicted the above-
described testimony and assisted with Dr. Davis’ explanation
of his opinion on Kaley’s cause of death and why he disagreed
with Dr. Ophoven.
With respect to creation of the video, Dr. Davis testified
that for the last 15 or more years, he has operated a company
that makes graphics and demonstrative animation aids to help
people understand difficult medical concepts. He commis-
sioned the video to be made approximately 10 years prior and
was heavily involved in its creation as the source of the accu-
racy of the medical evidence contained in it. It was repeatedly
made clear to the jury during Dr. Davis’ testimony that the
Decisions of the Nebraska Court of Appeals
820 22 NEBRASKA APPELLATE REPORTS
animation in the video was not intended to represent Kaley,
but, rather, the video simply depicted what generally happens
in a baby’s brain when it is shaken.
Based on the foregoing, we find no abuse of discretion in
the district court’s conclusion that the video could assist the
jury in understanding Dr. Davis’ testimony and clarifying an
issue in the case. This assignment of error is without merit.
Double Jeopardy.
[21] Having found reversible error in the admission of
Kassandra’s opinion testimony, we must determine whether
the totality of the evidence admitted by the district court was
sufficient to sustain Kozisek’s conviction. If it was not, then
the concepts of double jeopardy would not allow a remand for
a new trial. See State v. Borst, 281 Neb. 217, 795 N.W.2d 262
(2011). The Double Jeopardy Clause does not forbid a retrial
so long as the sum of all the evidence admitted by a trial court,
whether erroneously or not, would have been sufficient to sus-
tain a guilty verdict. State v. Borst, supra.
After reviewing the record, we conclude that the evidence
presented at trial, including the evidence that should have been
excluded, was sufficient to support Kozisek’s conviction. As
such, we conclude that double jeopardy does not preclude a
remand for a new trial on the charge of intentional child abuse
resulting in death. We therefore remand the cause to the district
court for a new trial.
CONCLUSION
We conclude that the district court erred when it denied
Kozisek’s motion for new trial because the admission of
Kassandra’s opinion regarding Kozisek’s involvement in
Kaley’s death was prejudicial error. We reverse the decision of
the district court and remand the cause to the district court for
a new trial.
R eversed and remanded for a new trial.