State v. Newman ( 2013 )

Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 29
Cite as 21 Neb. App. 29compensation court, the evidence in the record supports a
finding that she suffered a cumulative, repetitive trauma injury
in January 2011.
[11] Although we need not address this argument in order to
resolve this case, we do note that this issue was not assigned
as error in Hadfield’s brief. Errors argued but not assigned will
not be considered on appeal. Sheperd v. Chambers, 281 Neb.
57, 794 N.W.2d 678 (2011).
CONCLUSION
We conclude that the compensation court’s order of dis-
missal did not comply with rule 11(A), because it failed to
clearly address whether it had considered Hadfield’s injuries
under a cumulative, repetitive trauma theory. Therefore, we
reverse the judgment and remand the cause to the compensa-
tion court with directions to consider this matter under a cumu-
lative, repetitive trauma theory.
R eversed and remanded with directions.
State of Nebraska, appellee, v.
Stewart O. Newman, appellant.
___ N.W.2d ___
Filed July 16, 2013. Nos. A-12-404, A-12-405.
1. Constitutional Law: Search and Seizure: Motions to Suppress. In reviewing
a trial court’s ruling on a motion to suppress based on a claimed violation of the
Fourth Amendment, an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial court’s findings for
clear error. But whether those facts trigger or violate Fourth Amendment protec-
tions is a question of law that an appellate court reviews independently of the
trial court’s determination.
2. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. For the
protections of the Fourth Amendment to apply, a seizure must have occurred. A
seizure requires either a police officer’s application of physical force to a suspect
or a suspect’s submission to an officer’s show of authority.
3. Search and Seizure. Determinations as to whether a person has been seized are
questions of fact.
4. Constitutional Law: Search and Seizure. A seizure in the Fourth Amendment
context occurs only if, in view of all the circumstances surrounding the incident,
a reasonable person would have believed that he or she was not free to leave.
Decisions of the Nebraska Court of Appeals
30 21 NEBRASKA APPELLATE REPORTS
5. Police Officers and Sheriffs: Search and Seizure. In addition to situations
where an officer directly tells the suspect that he or she is not free to go, circum-
stances indicative of a seizure may include the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of the
citizen’s person, or the use of language or tone of voice indicating that compli-
ance with the officer’s request might be compelled.
6. ____: ____. The question of whether a person’s consent to accompany law
enforcement officials was in fact voluntary or was the product of duress
or coercion, express or implied, is to be determined by the totality of the
circumstances.
7. ____: ____. A request to accompany law enforcement to a police station for ques-
tioning does not carry an implication of obligation so awesome for a suspect that
it renders his actions involuntary.
8. Constitutional Law: Search and Seizure: Waiver. Both the U.S. and Nebraska
Constitutions guarantee the right to be free from unreasonable searches and sei-
zures. That right may be waived by consent.
9. Warrantless Searches: Proof. When the prosecution seeks to justify a war-
rantless search by proof of voluntary consent, it is not limited to proof that the
consent was given by the defendant, but may show that the permission to search
was obtained from a third party who possessed common authority over or other
sufficient relationship to the premises or effects sought to be inspected.
10. Warrantless Searches: Police Officers and Sheriffs. A warrantless search is
valid when based upon consent of a third party whom the police, at the time
of the search, reasonably believed possessed authority to consent to a search of
the premises, even if it is later demonstrated that the individual did not possess
such authority.
11. Speedy Trial. Neb. Rev. Stat. § 29-1207 (Cum. Supp. 2012) provides that, in
general, a defendant must be brought to trial within 6 months after the filing of
the information, unless the 6 months are extended by any period to be excluded
in computing the time for trial.
12. ____. If a defendant is not brought to trial before the running of the time for
trial, as extended by excluded periods, he or she shall be entitled to an absolute
discharge from the offense charged.
13. Judgments: Speedy Trial: Appeal and Error. As a general rule, a trial
court’s determination as to whether charges should be dismissed on speedy
trial grounds is a factual question which will be affirmed on appeal unless
clearly erroneous.
14. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
15. Indictments and Informations: Speedy Trial. When determining the impact the
filing of an amended information has on speedy trial considerations, it is impor-
tant to determine whether the amendment charges the same or a totally different
crime, and if it does not change the nature of the charge, then the time continues
to run against the State for purposes of the speedy trial act.
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 31
Cite as 21 Neb. App. 2916. Indictments and Informations. An amended information which charges a differ-
ent crime, without charging the original crime(s), constitutes an abandonment of
the first information and acts as a dismissal of the same.
17. Sexual Assault: Words and Phrases. Neb. Rev. Stat. § 28-319.01 (Cum. Supp.
2012) provides, in relevant part, that a person commits sexual assault of a child
in the first degree when he or she subjects another person under 12 years of age
to sexual penetration and the actor is at least 19 years of age or older.
18. ____: ____. Neb. Rev. Stat. § 28-318(6) (Reissue 2008) defines sexual penetra-
tion as meaning sexual intercourse in its ordinary meaning, cunnilingus, fellatio,
anal intercourse, or any intrusion, however slight, of any part of the actor’s or
victim’s body or any object manipulated by the actor into the genital or anal
openings of the victim’s body which can be reasonably construed as being for
nonmedical or nonhealth purposes.
19. Convictions: Evidence: Appeal and Error. In reviewing a sufficiency of the
evidence claim, whether the evidence is direct, circumstantial, or a combination
thereof, the standard is the same: An appellate court does not resolve conflicts in
the evidence, pass on the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact. The relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
20. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
21. 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.
22. Sentences. In imposing a sentence, a sentencing judge should consider the
defend­ nt’s (1) age, (2) mentality, (3) education and experience, (4) social and
a
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense and (8)
the amount of violence involved in the commission of the crime.
23. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding the
defendant’s life.
Appeals from the District Court for Douglas County: J.
Patrick Mullen, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Jeanine E. Tlustos for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Decisions of the Nebraska Court of Appeals
32 21 NEBRASKA APPELLATE REPORTS
Inbody, Chief Judge, and Irwin and Moore, Judges.
Irwin, Judge.
I. INTRODUCTION
Stewart O. Newman appeals his convictions and sentences
on one count of first degree sexual assault of a child and six
counts of visual depiction of child pornography. On appeal,
Newman challenges rulings of the district court for Douglas
County overruling two motions to suppress, overruling a
motion to discharge, finding sufficient evidence to support
the sexual assault conviction, and imposing sentences. We
find Newman’s assertions on appeal to be meritless, and
we affirm.
II. BACKGROUND
This case involves allegations of first degree sexual assault
of a child and visual depiction of child pornography involv-
ing one young girl, who was born in March 1999 and was
approximately 10 years of age at the time of the events giv-
ing rise to these criminal charges. To protect her anonymity,
we will simply refer to her as “Jane” (as in “Jane Doe”)
throughout this opinion. In addition, inasmuch as the factual
background of this case is graphic, our explanations of the
testimony will be only as detailed as necessary to explain
the underlying legal analysis that results in affirmance of
Newman’s convictions.
In February 2010, Jane sent her mother a text message
indicating that Newman had been “trying to have sex with
[her].” Jane’s mother called the 911 emergency dispatch serv­
ice and reported the allegations and then took Jane to “Project
Harmony,” where she was interviewed by a member of the
Omaha Police Department’s special victims/child sexual assault
unit. After Jane’s interview with law enforcement, Newman
was arrested. Sometime later, Newman’s wife contacted law
enforcement about suspecting that there was child pornography
on a laptop computer in Newman’s home, and a search of that
laptop revealed a variety of suspected pornographic images of
children, including photographs of Jane.
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 33
Cite as 21 Neb. App. 291. Jane’s Testimony and Interview
Jane testified at trial, recounting the history of Newman’s
conduct toward her. Jane testified that Newman began speak-
ing with her about sex when she was approximately 6 years
of age. She testified that when she was approximately 7 or
8 years of age, she observed Newman looking at pornog­
raphy on a computer and Newman began showing her por-
nographic images. She testified that when she was 6 years
of age, Newman began touching her “private parts” with his
hands, and that when she was approximately 8 years of age,
he touched her “private” with his “private.” She testified that
he also would sometimes “touch [her] private” with his mouth
and “lick [her] private.”
Jane testified that there were occasions where Newman and
Jane would both be unclothed and Newman would rub his
penis on her vagina, rubbing it “back and forth.” She testi-
fied that Newman rubbed his penis “inside the folds” of her
vagina and that he would then instruct her to lie on her stom-
ach. She testified that after she lay on her stomach, Newman
would rub his “front area” on her “bottom,” with his penis
“on top of [her] hole area,” and that eventually “white stuff”
would come out of Newman’s penis, which she could feel on
her back.
Jane testified that she was approximately 8 years of age
when Newman first showed her what came out of his penis.
She testified that Newman had told her her “opening” was too
small for his penis to go inside of and that nothing ever went
inside the “hole” of her vagina or the “hole” of her “butt area.”
She testified, however, that when Newman would lick her
vaginal area, she could feel the “folds” of her vagina “com-
ing apart.”
Jane also testified that in September 2009, when she was
10 years of age, Newman took photographs of her without any
clothes on. She testified that Newman “posed” her in certain
positions in the photographs. At trial, six photographs were
received into evidence and the parties stipulated that the photo-
graphs were of Jane. These photographs depict Jane, including
her genitalia, and Newman’s penis is depicted in more than one
Decisions of the Nebraska Court of Appeals
34 21 NEBRASKA APPELLATE REPORTS
of the photographs. In one of the photographs, Jane’s hand is
holding Newman’s penis and pointing it at her vagina.
Det. Robert Butler testified that he interviewed Jane at
Project Harmony in February 2010. Detective Butler testified
that Jane had described to him that Newman had “separat[ed]”
the labia of her vagina with his tongue and with his penis.
He testified Jane had indicated that Newman put his tongue
“inside of her” and that although Newman’s licking of her
vagina was sometimes on the “outside,” it was “most[ly]” on
the “inside.”
2. Newman’s Statements and Testimony
On or about February 12, 2010, after Jane reported Newman’s
conduct to her mother and Jane was interviewed at Project
Harmony, Omaha law enforcement officers made contact with
Newman at his home. Two detectives in plain clothes and two
uniformed officers made contact with Newman. The detectives
advised Newman that they wanted to conduct a formal inter-
view with him at the police station, and Newman agreed to
accompany them. Newman was then transported to the police
station in an unmarked vehicle. According to one of the detec-
tives, Newman never expressed any reluctance to accompany-
ing them.
At the police station, Newman was advised of his rights
from a standard rights advisory form and was interviewed. The
interview lasted approximately 2 hours and was recorded, with
both audio and video. During the interview, Newman never
indicated that he wanted to stop the interview and never asked
to speak with an attorney.
During the interview, Newman initially denied that any
sexual assault had occurred. Eventually, however, he acknowl-
edged the conduct and indicated that it had “snowballed”
from touching to instances of oral sex. During the interview,
Newman indicated that on at least one occasion, Jane had put
her mouth on his penis.
At trial, Newman testified in his own behalf. Although he
acknowledged that he had made statements during the inter-
view about Jane’s placing his penis in her mouth, he denied
that such conduct ever occurred. He testified that he showed
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 35
Cite as 21 Neb. App. 29Jane what a “blow job” was by showing her a video on the
computer. He also denied ever placing his mouth on Jane’s
vaginal area.
Newman acknowledged that he had watched pornography
with Jane and had shown her pornography on a computer.
He testified that Jane had heard about sex from other girls
and asked him questions about it, and he testified that he
thought he could “curb [her] curiosity” by watching pornog­
raphy with her. He testified that the “wors[t]” the conduct ever
got between him and Jane was “showing each other” and “a
little bit of touching” and “some rubbing.” He testified that he
did not know what had been in his mind to make him remove
his pants while looking at pornography with Jane.
Newman testified that he “only ejaculated on [Jane] once,”
in 2009. He testified that he rubbed his penis on her “bottom”
while looking at pornography with her, and he acknowledged
that Jane may have rubbed her hands on his penis to make
it erect.
Newman testified that there were approximately six instances
of some contact in 2009, that he “probably” rubbed his penis
on Jane five of those times, and that he ejaculated on one occa-
sion. He testified that this conduct occurred with clothes on,
and described that he would stand between Jane’s spread legs
while rubbing back and forth. He testified that initially, he was
trying “to educate” Jane.
Newman acknowledged that he had posed Jane and taken
pictures of her in the nude. He acknowledged that one of the
photographs received into evidence depicted his erect penis
with Jane’s hand around it. He testified that the photographs
were taken on the same occasion when he ejaculated. Newman
testified that Jane “wanted” the photographs taken.
Although Newman testified that he had shown pornog-
raphy to Jane, that he had viewed pornography with Jane,
that he and Jane had become naked in each other’s presence
and had engaged in “showing each other” and “a little bit of
touching” and “some rubbing,” that Jane had rubbed his penis
on at least one occasion, that he had ejaculated after rubbing
his penis against Jane’s bottom, and that he had posed Jane
and taken a number of pictures of her nude genitalia and a
Decisions of the Nebraska Court of Appeals
36 21 NEBRASKA APPELLATE REPORTS
photograph of her hand around his penis, Newman denied
that any penetration ever occurred during any of the instances
with Jane.
3. Laptop Computer
Approximately 1 week after Newman was arrested, his wife
(now his ex-wife) contacted law enforcement officers because,
while she was using a laptop computer in their house, she dis-
covered “inappropriate” Web sites in the computer’s browser
history. During a hearing on a motion to suppress, she testified
that the Web sites had names that included such words as “little
models” and “incest.” She testified that she observed a picture
(which she did not describe) and “shut it down real quick”
before calling law enforcement.
Newman’s wife testified that she and Newman shared
expenses, had combined financial accounts, and usually made
joint decisions regarding purchases. She testified that the two
had purchased two computers with a joint tax refund and that
although one of the computers was primarily used by her and
one primarily used by Newman, she had access to both com-
puters and had business files on the computer primarily used
by Newman that she accessed frequently. She testified that the
computer was owned jointly and that she gave law enforcement
permission to search the computer.
Newman’s wife testified that on the occasion on which she
discovered the questionable content that caused her to con-
tact law enforcement, she was not required to log onto the
computer because it was already “booted up” and was on the
kitchen counter in the house.
Newman’s wife testified that both computers had, at one
time, required the same password for logging on, because
both she and Newman used both computers. She testified that
Newman had changed the password on the subject computer
in November or December 2009, because the couple had a
teenage girl staying with them and Newman had wanted to
keep her from being able to access the Internet through the
computer. Newman’s wife testified that she did not recall
whether Newman had told her the new password; she was
never actually asked whether she knew the password, but
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 37
Cite as 21 Neb. App. 29she testified that she knew typical words that Newman used
as passwords.
One of the detectives involved in the investigation of the
case testified that Newman’s wife contacted law enforcement
approximately 1 week after Newman’s arrest and indicated
that she had found child pornography on a computer primarily
used by Newman. The detective testified that he understood
she had access to the computer and that law enforcement
obtained her permission to search the computer. He testified
that he believed the computer was password protected, but that
Newman’s wife provided law enforcement with the password.
He testified that he believed the password was written on a slip
of paper found inside the laptop computer’s case.
After the computer was booked into property, a forensics
analysis was performed. The law enforcement officer who per-
formed the analysis testified that he believed the other officer
provided him with the password for the computer, but that he
did not need the password because he was able to use a foren-
sics software program to view files on the computer without
use of the password. He later testified at trial that he did not
have the password for the computer.
The officer who performed the forensics analysis testi-
fied that he found evidence of child pornography on the
computer and that law enforcement then decided to obtain a
search warrant to make a full analysis of the computer. After
a search warrant was obtained, 11 images of Jane and more
than 90 images of other children were located. He testified
that many of the images of other children were consistent
with images in a Nebraska State Patrol repository of known
child pornography and were downloaded to the computer
through a peer-to-peer program called LimeWire. The offi-
cer who performed the forensics analysis also testified that
he found information on the computer concerning numerous
Web sites catering to people looking for images of young
children and teenagers.
4. P rocedural Background
On February 17, 2010, Newman was charged by informa-
tion with first degree sexual assault of Jane. On March 1,
Decisions of the Nebraska Court of Appeals
38 21 NEBRASKA APPELLATE REPORTS
Newman was charged by information with six counts of visual
depiction of child pornography.
(a) Suppression
Prior to trial, Newman sought to suppress evidence obtained
from the search of the laptop computer. Newman also sought
to suppress statements made during his February 12, 2010,
interview.
On February 28, 2011, the district court denied Newman’s
motion to suppress evidence obtained from the computer. The
court found that the computer was jointly purchased and owned
by Newman and his wife, that his wife had mutual access to
and use of the computer, and that she gave the password to
law enforcement. The court also found that law enforcement
was reasonable in believing Newman’s wife had authority to
provide consent for a search of the computer and that Newman
had waived any privacy interest in the computer when he left it
logged on in a common area of the house.
On June 15, 2011, the district court denied Newman’s
motion to suppress statements. The court found that Newman
had voluntarily accompanied law enforcement to the police
station and had been properly advised of his rights before he
made incriminating statements.
(b) Discharge
On July 29, 2010, Newman waived his right to speedy trial
concerning the then-pending first degree sexual assault of
a child charge and the six visual depiction of child pornog­
raphy charges.
In May 2011, a second amended information was filed con-
cerning the child pornography charges. In the second amended
information, Newman was charged with 10 counts of visual
depiction of child pornography and 10 counts of possession of
child pornography. In January 2012, Newman filed a motion
for discharge concerning the child pornography charges, alleg-
ing that more than 6 months had elapsed since the filing of the
second amended information.
In response to Newman’s motion to discharge, the State
filed a motion to dismiss the 14 additional charges which were
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 39
Cite as 21 Neb. App. 29included in the second amended information. The court granted
this motion, leaving Newman again charged with six counts of
visual depiction of child pornography. The district court denied
the motion to discharge, finding that after the State dismissed
the additional charges, Newman remained in exactly the same
position as he had been in when he waived his right to speedy
trial in July 2010.
(c) Verdict and Sentencing
Newman waived his right to jury trial. After a trial to the
bench, the district court found Newman guilty of one count of
first degree sexual assault of a child and guilty of six counts
of visual depiction of child pornography. The court sentenced
Newman to a term of 45 to 70 years’ imprisonment on the
sexual assault conviction. The court sentenced Newman to con-
current sentences of 5 to 10 years’ imprisonment on each of the
child pornography convictions. The court ordered the concur-
rent child pornography sentences to be served consecutively to
the sexual assault sentence. In addition, Newman was required
to comply with Nebraska’s Sex Offender Registration Act. This
appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Newman challenges the district court’s denial
of each of his motions to suppress, the court’s denial of his
motion to discharge, the sufficiency of the evidence to support
the sexual assault conviction, and the sentences imposed by the
district court.
IV. ANALYSIS
1. Motions to Suppress
[1] Newman challenges the district court’s denial of his
motions to suppress statements he made to law enforcement
investigating the claim of sexual assault and to suppress evi-
dence of child pornography obtained from law enforcement’s
search of a laptop computer. In reviewing a trial court’s ruling
on a motion to suppress based on a claimed violation of the
Fourth Amendment, an appellate court applies a two-part stan-
dard of review. State v. Casillas, 279 Neb. 820, 782 N.W.2d
Decisions of the Nebraska Court of Appeals
40 21 NEBRASKA APPELLATE REPORTS
882 (2010); State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469(2009). Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. Id. But whether those
facts trigger or violate Fourth Amendment protections is a
question of law that an appellate court reviews independently
of the trial court’s determination. Id. We find no merit to
either assertion.
(a) Statements
Newman first asserts that the district court erred in deny-
ing his motion to suppress statements made during his initial
interview with law enforcement. His argument is premised on
an assertion that law enforcement effected an unlawful arrest
of him at his home and that the entire subsequent interview
at the police station was fruit of the poisonous tree. We agree
with the district court that the circumstances demonstrate
that Newman made a voluntary statement, after being fully
advised of his rights, and we find no merit to this assertion
of error.
[2,3] It is axiomatic that for the protections of the Fourth
Amendment to apply, a seizure must have occurred. State v.
Hedgcock, supra. A seizure requires either a police officer’s
application of physical force to a suspect or a suspect’s submis-
sion to an officer’s show of authority. Id. Determinations as to
whether a person has been seized are questions of fact. State v.
Bronson, 242 Neb. 931, 496 N.W.2d 882 (1993).
[4,5] A seizure in the Fourth Amendment context occurs only
if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he or she was not
free to leave. State v. Casillas, supra; State v. Hedgcock, supra.In addition to situations where the officer directly tells the sus-
pect that he or she is not free to go, circumstances indicative
of a seizure may include the threatening presence of several
officers, the display of a weapon by an officer, some physical
touching of the citizen’s person, or the use of language or tone
of voice indicating that compliance with the officer’s request
might be compelled. State v. Hedgcock, supra.[6] The question of whether a person’s consent to accom-
pany law enforcement officials was in fact voluntary or was
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 41
Cite as 21 Neb. App. 29the product of duress or coercion, express or implied, is to
be determined by the totality of the circumstances. State v.
Bronson, supra.In State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990),
the Nebraska Supreme Court addressed the admissibility of
statements made after the defendant accompanied law enforce-
ment to the police station. In that case, the defendant was
suspected of being involved in a homicide and, while driving
his automobile, was stopped by a police cruiser accompanied
by an unmarked police vehicle. The defendant was asked to
accompany law enforcement to the police station. The defend­
ant asked whether he could leave his vehicle where it was
parked, was cooperative and agreed to accompany law enforce-
ment, and was transported in an unmarked police car. He was
not handcuffed.
[7] The Nebraska Supreme Court held that the record
“clearly demonstrate[d] that [the defendant] voluntarily coop-
erated with the police.” Id. at 782, 457 N.W.2d at 440. The
court concluded that given the totality of the circumstances,
the trial court was not clearly wrong in concluding that no
unlawful seizure had occurred when law enforcement stopped
the defendant, asked him to accompany them to the police sta-
tion, and transported him to the police station for an interview.
State v. Victor, supra. The court specifically rejected the asser-
tion that a request to accompany law enforcement “to a police
station for questioning carries an implication of obligation so
awesome for a suspect that it renders his actions involuntary.”
Id. at 782, 457 N.W.2d at 441.
Similarly, in State v. Bronson, 242 Neb. at 935, 496 N.W.2d
at 887, police officers made contact with the defendant at his
house, explained that they wanted to “‘talk to him at Central
Police Headquarters,’” and transported him to the police station
for an interview. The defendant “was not threatened, coerced, or
promised anything, was not told he was under arrest, was not
handcuffed, and rode in the back seat of [an] unmarked police
car with the two officers in the front.” Id. The defendant was
described as “calm and cooperative.” Id.In that case, the Nebraska Supreme Court again held that
the defendant had voluntarily accompanied law enforcement
Decisions of the Nebraska Court of Appeals
42 21 NEBRASKA APPELLATE REPORTS
to the police station. State v. Bronson, 242 Neb. 931, 496
N.W.2d 882 (1993). The court held that despite the fact that
the defendant was interrogated in privacy and in unfamil-
iar surroundings, considered from a totality of the circum-
stances, the situation did not rise to the level of a custodial
seizure. Id.The facts of the present case are substantially similar. One
of the detectives involved in the investigation testified that
he, another detective, and two uniformed officers went to
Newman’s house and made contact with him. The detective
testified that Newman “actually may have come out prior to
[their] knocking on [the door],” but that he could not recall
exactly. He testified they advised Newman that his name had
come up in an investigation and that they wanted to conduct a
formal interview at the police station. Newman “was receptive
and he agreed to accompany” the officers. Newman was then
transported in an unmarked vehicle with the two plainclothes
detectives. The detective also testified that he did not believe
Newman was handcuffed (and later testified Newman was
not in handcuffs when he arrived in the interview room at
the police station) and that Newman was not advised he was
under arrest. He testified that Newman never became reluctant
or indicated that he was unwilling to accompany law enforce-
ment. Once in the interview room, Newman was advised of
his rights from a standard rights advisory form before making
any statements.
There is no indication in the record that any law enforce-
ment officer displayed a weapon, physically touched Newman,
or otherwise took action to suggest that Newman was com-
pelled to accompany them. There is no indication that any law
enforcement officers took any action to suggest that Newman
was threatened or coerced into accompanying them. Rather,
the totality of the circumstances indicates that Newman was
asked to accompany law enforcement and that he willingly and
voluntarily did so.
As in State v. Bronson, supra, and State v. Victor, 235 Neb.
770, 457 N.W.2d 431 (1990), the totality of the circumstances
in this case indicates that Newman voluntarily accompanied
law enforcement to the police station and was not unlawfully
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 43
Cite as 21 Neb. App. 29seized at his home. As such, we find no merit to Newman’s
assertion that the district court erred in denying his motion to
suppress statements.
(b) Search of Laptop
Newman next asserts that the district court erred in denying
his motion to suppress evidence of child pornography found on
a laptop computer. His argument is premised on an assertion
that his wife lacked authority to grant consent for a search of
the laptop and that she did not know the password to access the
laptop. We find that the district court did not err in finding that
his wife had authority to consent to the search, and we reject
this assertion of error.
[8-10] The Nebraska Supreme Court recently addressed
the issue of shared authority to consent to a search in State
v. Reinpold, 284 Neb. 950, 824 N.W.2d 713 (2013). Both the
U.S. and Nebraska Constitutions guarantee the right to be free
from unreasonable searches and seizures. State v. Reinpold,
supra. That right may be waived by consent. Id., citing State
v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). When the
prosecution seeks to justify a warrantless search by proof of
voluntary consent, it is not limited to proof that the consent
was given by the defendant, but may show that the permis-
sion to search was obtained from a third party who possessed
common authority over or other sufficient relationship to the
premises or effects sought to be inspected. Id. Furthermore,
a warrantless search is valid when based upon consent of a
third party whom the police, at the time of the search, reason-
ably believed possessed authority to consent to a search of the
premises, even if it is later demonstrated that the individual did
not possess such authority. Id.In State v. Reinpold, supra, the defendant rented one of six
apartments located in a single dwelling owned by his parents.
At the time, the dwelling was also occupied by the defend­
ant’s grandparents and uncle. The defendant, his grandpar-
ents, and his uncle were the only occupants of the dwelling,
and all used the basement of the dwelling for storage. Both
the defendant and his uncle stored property in the northeast
corner of the basement. The defendant subsequently moved
Decisions of the Nebraska Court of Appeals
44 21 NEBRASKA APPELLATE REPORTS
from the dwelling, but left belongings in the basement stor-
age area.
After the defendant had moved from the dwelling, his
grandparents located a laptop computer in his former apart-
ment and, while examining it, discovered images of suspected
child pornography. When the defendant’s uncle contacted him
about the laptop computer, the defendant denied owning it. The
defendant subsequently went to the dwelling to retrieve the
laptop computer, and its location was unknown to the date of
the Supreme Court’s opinion.
During a subsequent investigation, law enforcement was
informed about the images that had been viewed on the laptop
computer and the defendant’s grandparents and uncle informed
law enforcement that the defendant had stored several com-
puter hard drives in the basement of the dwelling. They
led the investigating officer to the northeast corner of the
basement, where three hard drives were located and seized.
Subsequent searches of the hard drives revealed suspected
child pornography.
In State v. Reinpold, supra, the Nebraska Supreme Court
held that the district court was not clearly wrong in finding
that the defendant’s grandparents and uncle had actual and/
or apparent authority to consent to a search of the northeast
corner of the basement area. The evidence demonstrated that
the defendant’s grandparents and uncle had unfettered access
to the basement and that the defendant’s uncle stored items in
the northeast corner of the basement. There was no evidence
adduced to demonstrate that the investigating officer had any
information to suggest that the defendant had exclusive use
of the northeast corner of the basement. Thus, the Supreme
Court rejected the defendant’s assertion that the search was
performed without valid consent.
Similarly, the evidence in the present case indicates that
Newman’s wife had actual and/or apparent authority to consent
to a search of the laptop computer. Newman’s wife testified
that the laptop computer was owned jointly and that there was
business information located on it that she “used frequently.”
She testified that the parties shared expenses, had combined
checking accounts, and usually made joint decisions about
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 45
Cite as 21 Neb. App. 29purchases. She testified that the laptop computer was pur-
chased by the parties with a joint tax refund. She testified that
they purchased two laptop computers at the same time, that the
one in question was primarily used by Newman, and that both
parties had access to the laptop computers.
Newman’s wife testified that when she discovered the ques-
tionable content on the laptop computer in question, it had
been located on the kitchen counter and it was “already booted
up,” so she did not need to enter a password to use it. She
testified that Newman had changed the password for access-
ing the computer in November or December 2009 to prevent
a teenager who had been staying with them from being able
to access the Internet. She testified that she could not recall
whether Newman had told her the new password, but that
they “[t]ypically . . . used similar” passwords and that she was
aware of other passwords that Newman utilized. She was never
asked whether she knew the password or whether she provided
the password to law enforcement.
One of the detectives testified that Newman’s wife con-
tacted law enforcement about having found possible child
pornography on the laptop computer. He testified that she
indicated she had found the possible child pornography “on a
computer primarily used by” Newman and that it was decided
law enforcement could seize the laptop computer because it
was joint property. He testified that law enforcement obtained
permission from Newman’s wife to search the laptop computer
and that she signed a standard consent-to-search form. He
testified that his understanding was that Newman’s wife had
access to the laptop computer.
We conclude that the district court was not clearly errone-
ous in finding that Newman’s wife had actual and/or appar-
ent authority to consent to a search of the laptop computer.
Newman’s assertion of error is without merit.
2. Motion to Discharge
Newman next challenges the district court’s denial of his
motion to discharge the child pornography charges brought
against him. His argument is premised on an assertion that
the filing of a second amended information resulted in
Decisions of the Nebraska Court of Appeals
46 21 NEBRASKA APPELLATE REPORTS
charges different from those previously charged and to which
he had waived speedy trial protections and that more than 6
months passed before he was brought to trial on the charges
in the second amended information. We find no merit to
Newman’s assertion.
[11,12] As Newman correctly notes on appeal, Neb. Rev.
Stat. § 29-1207 (Reissue 2008 & Cum. Supp. 2012) provides
that, in general, a defendant must be brought to trial within 6
months after the filing of the information, unless the 6 months
are extended by any period to be excluded in computing the
time for trial. See State v. Florea, 20 Neb. App. 185, 820
N.W.2d 649 (2012). If a defendant is not brought to trial before
the running of the time for trial, as extended by excluded peri-
ods, he or she shall be entitled to an absolute discharge from
the offense charged. Id.[13,14] As a general rule, a trial court’s determination as to
whether charges should be dismissed on speedy trial grounds
is a factual question which will be affirmed on appeal unless
clearly erroneous. Id. To the extent an appeal calls for statutory
interpretation or presents questions of law, an appellate court
must reach an independent conclusion irrespective of the deter-
mination made by the court below. Id.[15,16] In State v. French, 262 Neb. 664, 633 N.W.2d 908(2001), the Nebraska Supreme Court addressed the State’s fil-
ing of an amended information and such filing’s impact on
speedy trial considerations. The court concluded that “[i]t is
important to determine whether the amendment charges the
same crime or a totally different crime” and held that “[i]f the
amendment to the . . . information does not change the nature
of the charge, then obviously the time continues to run against
the State for purposes of the speedy trial act.” Id. at 670, 633
N.W.2d at 914. An amended information which charges a dif-
ferent crime, without charging the original crime(s), constitutes
an abandonment of the first information and acts as a dismissal
of the same. See id.In the present case, the initial information charging Newman
with child pornography alleged that he had committed six
counts of visual depiction of child pornography between
February 13 and 24, 2010. With respect to those charges,
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 47
Cite as 21 Neb. App. 29Newman specifically waived his right to speedy trial. The
second amended information included 10 counts of visual
depiction of child pornography and 10 counts of posses-
sion of child pornography. Certainly, the amended information
charged additional crimes for which a new speedy trial clock
would begin and for which Newman’s prior waiver of speedy
trial would not be effective.
However, at the hearing on Newman’s motion to discharge,
the State dismissed the 14 additional charges alleged in the sec-
ond amended information. Thus, the State elected to proceed
with prosecution of Newman only on the original six counts of
visual depiction of child pornography with which he had been
charged in the original information, and for which he had spe-
cifically waived his right to speedy trial.
The district court found that upon the State’s dismissal of
the additional charges in the second amended information,
Newman remained in the same position as he had been at
the time he waived his right to speedy trial: charged with six
counts of visual depiction of child pornography. We find no
error in this ruling, and we find no merit to Newman’s asser-
tion that the court erred in denying his motion for discharge of
the child pornography charges.
3. Sufficiency of Evidence
Newman next asserts that the district court erred in finding
sufficient evidence to sustain his conviction for first degree
sexual assault of a child. His argument is premised on an
assertion that the State failed to adduce sufficient evidence to
demonstrate that penetration occurred. Newman’s assertions on
appeal amount to challenges to the credibility of the victim,
and there was sufficient evidence to sustain the conviction. As
such, we find no merit to this assertion of error.
[17] Neb. Rev. Stat. § 28-319.01 (Reissue 2008 & Cum.
Supp. 2012) provides, in relevant part, that a person commits
sexual assault of a child in the first degree when “he or she
subjects another person under twelve years of age to sexual
penetration and the actor is at least nineteen years of age or
older.” There is no issue in this case concerning the ages of
Newman or the victim. Newman was born in 1971 and was
Decisions of the Nebraska Court of Appeals
48 21 NEBRASKA APPELLATE REPORTS
37 or 38 years of age during the relevant time period; the
victim was born in 1999 and was 10 years of age during the
relevant time period. Newman’s assertions on appeal con-
cern only the sufficiency of the evidence concerning “sexual
penetration.”
[18] Neb. Rev. Stat. § 28-318(6) (Reissue 2008) defines
sexual penetration as meaning
sexual intercourse in its ordinary meaning, cunnilingus,
fellatio, anal intercourse, or any intrusion, however slight,
of any part of the actor’s or victim’s body or any object
manipulated by the actor into the genital or anal openings
of the victim’s body which can be reasonably construed
as being for nonmedical or nonhealth purposes.
Section 28-318(6) also indicates that “[s]exual penetration shall
not require emission of semen.”
[19] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for
the finder of fact. State v. Watson, 285 Neb. 497, 827 N.W.2d
507 (2013). The relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Id.In this case, the victim (Jane) testified about Newman’s
conduct. She testified that Newman began touching her private
parts when she was approximately 6 years of age and that the
conduct ended when she was 10 years of age. She testified
that Newman “rubbed on” her by putting “his privates on [her]
front private.” She testified that Newman’s touching of her
happened “[t]oo many times to count.”
Jane testified that when she was approximately 6 years of
age, Newman primarily “touch[ed] [her] private parts with
his hands” and that, although “usually [her clothes] were
on, . . . sometimes they were off.” She testified that when
she was 7 or 8 years of age, Newman began showing her
pornography and began touching “his private parts on [her]
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 49
Cite as 21 Neb. App. 29private parts.” She testified that Newman would sometimes
touch her private parts with his mouth and that he would
“lick [her] private.”
Jane testified about Newman’s touching of his private parts
to her private parts. She described that both she and Newman
would have their clothes off and that Newman would rub his
penis on her vagina. She specifically testified that Newman
would rub “inside the folds of [her] vagina.” She testified that
“like halfway through he’d tell [her] to get on [her] stomach”
and that he would then rub “his front area on [her] bottom.”
She testified that Newman would rub his penis on the “inside
just on top of the hole area” of “[her] butt.” She testified that
“a white stuff came out, and then he’d just wipe the white stuff
off with like a sock or a towel.” She testified that Newman
ejaculated “[o]nto [her] back area.”
Jane also testified that when Newman would lick her vagina,
she remembered “like the folds coming apart.”
On cross-examination, Jane agreed that she had told law
enforcement during her interview at Project Harmony that
nothing ever went inside “the hole” of her vagina or her anus.
She also acknowledged that if there were differences in her
memory of what happened between her testimony at trial and
statements she made during the Project Harmony interview,
her memory at the time of the Project Harmony interview was
probably more accurate. She denied that her story of what
had happened had changed, however. On redirect examina-
tion, she again testified that she remembered that she could
feel that Newman was rubbing his penis inside the folds of
her vagina.
Detective Butler, who conducted the interview of Jane at
Project Harmony, was asked whether Jane described “any
penetration” by Newman with his penis or hands, and he
responded “no.” Detective Butler testified, however, that his
supplemental report referenced Newman’s “penetrating [Jane’s]
vaginal area with his tongue, separating the labia minor[a] and
the majora, and also rubbing her vaginal area with his penis,
separating the labia minor[a] and the majora and rubbing his
penis inside her butt, but not inside the hole.” He testified that
he did not go over the legal definition of “penetration” with
Decisions of the Nebraska Court of Appeals
50 21 NEBRASKA APPELLATE REPORTS
Jane. Detective Butler was asked whether Jane indicated that
Newman put his tongue “inside of her” and “[u]p into the hole”
and “in the hole,” and he responded, “Yes. She said that she
could feel it inside of her.”
Newman testified in his own behalf. During his testimony,
he acknowledged that the videotape of his initial interview
with law enforcement revealed that he had made statements
to law enforcement indicating that Jane had put her mouth on
his penis, but he denied that it ever happened. He also denied
ever putting his mouth on Jane’s vagina. He acknowledged
occasions between him and Jane of “showing each other” and
occasions of “a little bit of touching” and “a little bit of some
rubbing.” He testified that Jane “might have rubbed her hands
on [his penis] a couple of times” to help him get erect. He
acknowledged ejaculating onto Jane on one occasion.
Newman’s argument on appeal is that the above evidence is
not sufficient to sustain a factual finding that there was sexual
penetration. He argues that during her initial interview, Jane
indicated there had been no penetration, and that she acknowl-
edged at trial that her memory would have been more accurate
at the time of the initial interview than at trial. According to
Newman, the only evidence of penetration was statements of
Jane made more recently and “[i]t is likely that these later
statements were not as accurate as the statements that [Jane]
made during the initial interview at Project Harmony.” Brief
for appellant at 28.
We find no merit to Newman’s assertion of error. As
recounted above, Detective Butler’s report of the initial inter-
view of Jane indicated that she had described Newman’s
separating the labia of her vagina with both his tongue and
his penis and that she described Newman’s placing his tongue
“inside of her.” Jane testified at trial that Newman licked
her and rubbed his penis “inside the folds” of her vagina.
Newman himself acknowledged having made statements to
law enforcement indicating that Jane placed her mouth on his
penis, although he denied at trial that any such conduct hap-
pened. Newman’s argument on appeal is entirely an assertion
that the testimony of Jane and Detective Butler should not be
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 51
Cite as 21 Neb. App. 29found credible; credibility is not an issue we resolve on appel-
late review.
There was clearly sufficient evidence from which a rational
trier of fact could find that there was “any intrusion, however
slight, of any part of [Newman’s] body . . . into the genital or
anal openings of [Jane’s] body which can be reasonably con-
strued as being for nonmedical or nonhealth purposes.” See
§ 28-318(6). Newman’s assertion that there was insufficient
evidence to sustain a conviction for first degree sexual assault
of a child is meritless.
4. Excessive Sentences
Newman’s final assertion of error is that the district
court abused its discretion by imposing excessive sentences.
Newman’s argument on appeal is not that the sentences imposed
were outside of the relevant statutory limits, but, rather, that
the court should have given more consideration to mitigating
factors and imposed less harsh sentences. We find no abuse
of discretion.
[20,21] The standard for reviewing an excessive sentence
claim is well established. State v. Wills, 285 Neb. 260, 826
N.W.2d 581 (2013). An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of
discretion by the trial court. Id. 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 jus-
tice or conscience, reason, and evidence. Id.[22,23] In imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6)
motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the com-
mission of the crime. Id. The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and all the facts and circumstances surrounding the defendant’s
life. Id.Decisions of the Nebraska Court of Appeals
52 21 NEBRASKA APPELLATE REPORTS
We have recounted in a fair amount of detail throughout this
opinion what the evidence in this case demonstrated: Newman,
while 37 or 38 years of age, engaged in a pattern of sexual
conduct with a child, beginning when she was 6 years of age
and continuing until she reported it at 10 years of age. The
evidence indicates that the conduct included touching, lick-
ing, and rubbing of genitals and ejaculation on more than one
occasion. Newman was convicted of first degree sexual assault
of a child and six counts of visual depiction of child pornog­
raphy related to photographs he took of the 10-year-old victim.
Those photographs depict the child in the nude, posed, with
her breasts and genitals exposed, and include an image of the
child’s hand gripping Newman’s erect penis.
At trial, Newman did not dispute that he had engaged in
this inappropriate conduct, except to assert that there had
never been penetration. He attempted to explain his behavior
by indicating that the child in this case had asked questions
about sex and that he thought these actions would “curb
[her] curiosity” and “educate” her. Newman acknowledged
that he took photographs of Jane that included “posing” of
her, but testified that the 10-year-old child wanted the photo-
graphs taken.
At sentencing, the sentencing court in this case described
Newman’s conduct as grooming of this victim. The court
concluded that Newman had not shown any remorse or under-
standing of the “psychic pain” that he had caused the vic-
tim. The court found that Newman is a predator and a threat
to vulnerable children and noted that he not only sexually
assaulted this young child, but also photographed her, evidenc-
ing his enjoyment.
The court sentenced Newman to a term of 45 to 70 years’
imprisonment for the first degree sexual assault of a child
conviction, to be served consecutively with six concurrent
sentences of 5 to 10 years’ imprisonment on each of the
visual depiction of child pornography convictions. These sen-
tences were all within the statutory limits, and the sentences
on the child pornography convictions were near the low end
of the sentencing range. In light of the nature of the offenses
and the circumstances of this case, there was no abuse of
Decisions of the Nebraska Court of Appeals
STATE v. NEWMAN 53
Cite as 21 Neb. App. 29discretion by the sentencing court. This assertion of error
is meritless.
V. CONCLUSION
We find no merit to Newman’s assertions of error. The dis-
trict court did not err in denying his motions to suppress or his
motion for discharge. There was sufficient evidence to sustain
the convictions. The sentences imposed were not excessive.
As such, we affirm.
Affirmed.