State v. Addleman ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. ADDLEMAN
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JOHN R. ADDLEMAN, APPELLANT.
Filed November 2, 2021. No. A-20-793.
Appeal from the District Court for Scotts Bluff County: LEO P. DOBROVOLNY, Judge.
Affirmed.
Audrey M. Elliott, of A. Elliott Law, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
RIEDMANN, BISHOP, and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
Following a jury trial, John R. Addleman was convicted of one count of third degree sexual
assault of a child and one count of first degree sexual assault of a child. The Scotts Bluff County
District Court sentenced him to a mandatory minimum of 10 years’ imprisonment and up to 20
years’ imprisonment for the count of third degree sexual assault of a child, and 30 to 60 years’
imprisonment for the count of first degree sexual assault of a child, which included a mandatory
minimum of 15 years. The sentences were ordered to be served consecutively. Addleman appeals
his convictions and sentences, claiming errors related to the amended information filed by the State
before trial, the admission of evidence regarding his prior attempted sexual assault convictions,
the sufficiency of the evidence, the denial of his motion for new trial, and the excessiveness of his
sentences. We affirm.
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II. BACKGROUND
This case arises from allegations that in November 2017, Addleman, 44 years old at the
time, sexually assaulted two minors: M.K., then 7 years old, and A.K., then 13 years old. We
summarize the events in this case, which will be set forth in more detail later in our analysis.
1. PRETRIAL PROCEEDINGS
On July 30, 2019, the State filed an initial information in the Scotts Bluff County District
Court charging Addleman with count I, third degree sexual assault of a child, second offense, in
violation of Neb. Rev. Stat. § 28-320.01(5) (Reissue 2016); count II, first degree sexual assault of
a child less than 12 years of age in violation of Neb. Rev. Stat. § 28-319.01(2) (Reissue 2016);
count III, attempted third degree sexual assault of a child in violation of Neb. Rev. Stat. § 28-201(Reissue 2016) and § 28-320.01; and count IV, being a habitual criminal pursuant to Neb. Rev.
Stat. § 29-2221 (Reissue 2016). M.K. was the named victim in counts I and II, and A.K. was the
named victim in count III. Addleman pled not guilty to all counts.
Following developments in the case, the State subsequently filed an amended information
on January 22, 2020, charging Addleman with count I, third degree sexual assault of a child, second
offense, in violation of § 28-320.01(5); count II, first degree sexual assault of a child less than 12
years of age in violation of § 28-319.01(2); count III, third degree sexual assault of a child in
violation of § 28-320.01(3); count IV, being a habitual criminal pursuant to § 29-2221; and count
V, first degree sexual assault of a child more than 12 years of age but less than 16 years in violation
of § 28-319.01(2). M.K. was the named victim in counts I and II, and A.K. was the named victim
in counts III and V. Addleman objected to the amended information at a hearing held on February
7, and the district court allowed the amended information over the objection. At the same hearing,
Addleman pled not guilty to the charges in the amended information.
On August 8, 2019, the State filed a notice of its intent to present evidence, pursuant to
Neb. Rev. Stat. § 27-414 (Reissue 2016), of prior sexual assaults for which Addleman had been
convicted. At a hearing on March 4, 2020, the State offered certified copies of court documents
evidencing that Addleman had been convicted of first degree sexual assault of a child in 1994,
attempted first degree sexual assault in 2002, and attempted first degree sexual assault of a child
in 2003. The victims from those previous cases were not present at the hearing. The district court
declined to rule on the admissibility of any evidence or testimony under § 27-414 without hearing
from those victims.
Addleman thereafter filed, among other motions, a motion in limine seeking to exclude the
witness testimony concerning his prior sexual assault convictions. After a hearing in June 2020,
the district court again declined to rule on the admissibility of the evidence regarding Addleman’s
prior sexual assault convictions until those victims testified.
2. TRIAL
Trial commenced on June 29, 2020, and continued through July 1. Addleman was present
at trial. We proceed to summarize the testimony of the events underlying the charges against
Addleman and the occurrences during trial relevant to the issues on appeal.
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(a) Sexual Assaults of M.K. (age 7) and A.K. (age 13)
The charges against Addleman stem from disclosures by M.K. and A.K. that each was
sexually assaulted by a man, later identified as Addleman, late one night in November 2017, while
their mother was not present in the family home. In her testimony, M.K. recalled that she was
assaulted “the night [her] Mom died.” She woke up late at night and “wanted to get a snack or a
drink.” When she “was about to get up” from her mother’s bed, she felt that “someone was there”
who then “stuck his hand down [her] pants” and touched “[her] bottom.” M.K. remembered feeling
“[u]ncomfortable” at the contact, and she then “got up and . . . left the bedroom” to go sleep on the
couch in the living room. M.K. believed that she had met this man before, and she remembered
seeing him speaking with her mother at some time prior to the night of the assault. She did not
remember this man’s name.
A.K. testified that her mother died on November 22, 2017. She remembered that the assault
occurred late at night during the week before November 22. A.K. had gone to bed “around nine,
10 o’clock” and chose to sleep with M.K. in their mother’s bed. M.K. was already sleeping when
A.K. went to bed. Their mother was not home that night, and A.K. stated that their oldest sister
was home. As A.K. was sleeping, a man came into the bedroom. He began to rub A.K.’s lower
back, and she woke up as a result of the touching. He was “laying next to [A.K.] on his side” and
was “wearing a [T-]shirt and jeans.” When A.K. woke up, M.K. was no longer in the bed. A.K.
asked what happened to M.K., and the man responded that “he took care of her.” He then told A.K.
to undress and began “tugging at [A.K.’s] shorts” and taking off her shirt and underwear. A.K.
told him “[t]o stop” as he was removing her clothing. He then “put his penis inside” her vagina.
A.K. continued saying “[s]top,” and he responded with “[s]h-sh’s and hushes.” According to A.K.,
he smelled of vodka. After some time, the penetration stopped, and A.K. left the bedroom while
getting dressed and she moved to the living room where M.K. was sleeping. A.K. texted their
mother, complaining of sickness and asking if she could come home, but their mother texted back
that “she couldn’t because she had already drank[] a few beers and that driving would be unsafe.”
A.K. also did not “want to wake up and tell” their oldest sister about what happened. A.K. testified
that the man “left after giving [A.K.] his [business] card.” The card “was black and white and said
something about a D.J. and Company.”
A.K. later described this man as “bald” with blue eyes, “a scruffy beard,” and a build
“between muscular and skinny.” A.K. could not recall whether this man had any tattoos. At trial,
A.K. pointed towards Addleman and stated that he was the one who came into the bedroom, but
A.K. could not recall his name other than his name was “[s]omething that starts with a J, John.”
A.K. also recalled briefly meeting him once before during the summer in 2017 when he was talking
with her mother outside of their house.
Neither M.K. nor A.K. disclosed the November 2017 assaults until later points in time.
M.K. reported the assault to her therapist in June 2018, and law enforcement thereafter began an
investigation into M.K.’s disclosure. In early July, forensic interviews were conducted for M.K.,
A.K., and the oldest sister. Investigator Rob Kiesel recalled that during her interview, M.K.
described the person who assaulted her as having “brownish, whitish hair.” Although only M.K.
had disclosed the sexual assault at this time, A.K. and the oldest sister were interviewed to gather
additional information and to verify if either was “a victim of some type of abuse or neglect.”
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During their separate interviews, A.K. and the oldest sister were asked whether they would suspect
any of the men their mother was seeing at the time of “being capable of doing something
inappropriate” towards M.K., and in response, the two siblings each mentioned a disc jockey and
gave physical descriptions of this individual. According to Investigator Kiesel, A.K. described him
as “[b]alding” and the oldest sister stated that he had “brown hair which was super short.” Based
on the siblings’ interviews and subsequent investigation, law enforcement identified Addleman as
a primary suspect. Thereafter, A.K. and the oldest sister identified Addleman in separate photo
arrays as the person each believed would have assaulted M.K. Law enforcement did not conduct a
photo array with M.K. Later in July, Investigator Kiesel interviewed Addleman regarding the
sexual assault allegations against him.
According to A.K.’s therapist, A.K.’s own disclosures of sexual assault occurred in July or
August 2019. A second forensic interview of A.K. was held in December. Regarding the delayed
disclosure of the assault, A.K. explained at trial, “It’s just not a topic I like to think about.”
(b) Admission of § 27-414 Evidence of Prior Sexual Assaults
During the course of trial, the district court held a hearing outside the presence of the jury
in which three witnesses, N.W., H.J., and Officer Martin McIntire of the Holdrege Police
Department, testified regarding Addleman’s prior sexual assault convictions in 2002 and 2003.
The State did not call a witness to testify regarding Addleman’s 1994 sexual assault conviction.
N.W. testified that she dated Addleman for a period of time in approximately 2000 or 2001
when she was “[a]bout 15” years old; at the time of trial she was 34 years old. She stated Addleman
looked to be in his “[l]ate 20’s, early 30’s” when they dated. She explained that she first met
Addleman in an online chatroom and met him in person the first time at his house, which she
described as a “party house . . . where people went that were underage to drink.” She stated that
Addleman’s house was in “Gering[, Nebraska].” She believed she and Addleman “were in some
kind of a relationship” and stated that there were multiple sexual encounters in that time period.
She acknowledged that regardless of her age at the time, it was consensual. The relationship ended
when someone called her “parents’ house” regarding her relationship with Addleman. Charges
relating to these events were later brought against Addleman in Scotts Bluff County, Nebraska.
Pursuant to a plea agreement, Addleman was convicted in 2003 of attempted first degree sexual
assault of a child for which he was sentenced to 3 to 5 years’ imprisonment.
H.J., formerly H.V., testified that she met Addleman in 2002 when she was 15 years old
and living in Holdrege, Nebraska; at the time of trial she was 33 years old. She first met Addleman
at “a high school party” where she recalled telling him that she was 18 years old. Following this
party, she exchanged “[a] few phone calls” with Addleman and later went over to his house, which
was in Holdrege at the time. Addleman broached the topic of sex, but the encounter did not escalate
beyond “kissing” and “touch[ing]” with some digital penetration. She acknowledged that the
“sexual engagement” she had with Addleman was consensual. Charges relating to these events
were subsequently brought against Addleman in Phelps County, Nebraska. Pursuant to a plea
agreement, he was convicted in 2002 of attempted first degree sexual assault for which he was
sentenced to 3 to 4 years’ imprisonment.
Officer McIntire testified as to his role in the investigation of the 2002 sexual assault case
involving H.J., who was 15 years old at the time, and Addleman, who was 28 years old at the time.
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Officer McIntire recalled that during an investigative interview with Addleman, Addleman advised
that he “had sexual contact with [H.J.]” at a party and alcohol was involved. Addleman also
admitted “that there was lots of alcohol at the party and then later he actually admitted to giving
alcohol to some of the minors.” While “working this Holdrege investigation,” Officer McIntire
was contacted by the Scottsbluff Police Department concerning the sexual assault involving N.W.
and a theft reported at the high school. He recalled that when he interviewed Addleman regarding
the sexual assault of N.W., Addleman advised that “he had a relationship with [N.W.]” and “that
it went on for a period of time” after the two met at a party where alcohol was present. When
Officer McIntire was asked if he “[saw] anything that [he] would term ‘grooming,’” he replied
that he “was able to see that [Addleman] found both victims at parties, he then was able to start
communicating with them, and that at some point it became more private. . . . [I]n Phelps County,
he provided the victim with something, that being alcohol, something [the victim] couldn’t get
normally.”
After the district court heard the witness testimony regarding Addleman’s prior sexual
assault convictions, Addleman objected to the admission of testimony and evidence relating to
those convictions. The court took the evidence and Addleman’s objection under consideration. In
a journal entry dated June 30, 2020, the district court allowed the presentation of evidence
regarding Addleman’s 2002 and 2003 convictions. The court found there was clear and convincing
evidence of those two assaults and that the probative value of the evidence was not outweighed by
the “likelihood that the jury will misuse the evidence.” The court did not permit evidence regarding
Addleman’s 1994 conviction to be presented to the jury, as the court found the documents received
at the March 4 hearing to be insufficient evidence from which the court could “make balancing
findings as required in section 414.” The testimonies of N.W. and H.J. were subsequently read to
the jury when trial resumed.
3. DELIBERATION, VERDICT, AND POSTTRIAL PROCEEDINGS
At the conclusion of the State’s case in chief, Addleman moved for count I (third degree
sexual assault of M.K.) and count II (first degree sexual assault of M.K.) to be dismissed on the
basis that the State failed to prove a prima facie case as to those charges. The State did not contest
the motion with respect to count II. The district court overruled Addleman’s motion as to count I
and granted his motion as to count II. The case was then submitted to the jury.
After deliberation, the jury found Addleman guilty of count III (third degree sexual assault
of A.K.) and count V (first degree sexual assault of A.K.). The jury found Addleman not guilty of
count I, the third degree sexual assault of M.K.
Addleman filed a motion for new trial, and a hearing was held on October 16, 2020,
addressing this motion, as well as sentencing. Addleman alleged first that the prosecution’s
statements during closing arguments amounted to prosecutorial misconduct that caused him
prejudice. Addleman further alleged that the district court improperly issued a response to a
question from the jury during deliberation in the absence of and without consulting the parties and
thus deprived Addleman of a fair trial. Addleman also asserted that the evidence was not sufficient
to sustain a guilty verdict. The district court found that no impropriety occurred and overruled
Addleman’s motion for new trial.
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The district court thereafter found Addleman to be a habitual criminal and sentenced him
to consecutive sentences of 10 to 20 years’ imprisonment for the third degree sexual assault of
A.K., with a 10-year mandatory minimum, and 30 to 60 years’ imprisonment for the first degree
sexual assault of A.K., with a 15-year mandatory minimum. Addleman was credited with 430 days
for time previously served.
Addleman appeals.
III. ASSIGNMENTS OF ERROR
Addleman assigns five errors on appeal: (1) the district court erred in allowing the State to
file an amended information, (2) the district court erred in admitting his prior convictions for the
jury’s consideration, (3) there was insufficient evidence to support his convictions, (4) the district
court abused its discretion in denying his motion for new trial, and (5) the sentences imposed were
excessive.
IV. STANDARD OF REVIEW
A ruling on whether to allow a criminal information to be amended is made by the trial
court in its discretion. State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015).
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is
controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. State v. Valverde, 286 Neb. 280, 835 N.W.2d
732 (2013). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the
discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse
of discretion. State v. Valverde, supra.Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the
evidence, or failure to prove a prima facie case, the standard is the same: in reviewing a criminal
conviction, 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, and a conviction will be
affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed
most favorably to the State, is sufficient to support the conviction. State v. Wheeler, 308 Neb. 708,
956 N.W.2d 708 (2021).
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. Hairston, 298 Neb. 251, 904 N.W.2d 1 (2017).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
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. State v. Martinez, 306 Neb. 516, 946 N.W.2d 445 (2020).
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V. ANALYSIS
1. AMENDED INFORMATION
Addleman claims that the district court abused its discretion when it permitted the State to
file the amended information. More specifically, he argues that he was prejudiced by the timing of
the filing of the amended information which contained altered and additional charges as compared
to the original information, and by the increased penalties brought by the new charges in the
amended information.
As previously set forth, the initial information filed in July 2019 charged Addleman with
first degree and third degree sexual assault of a child, M.K., and attempted third degree sexual
assault of a child, A.K. Addleman was also charged with being a habitual criminal. Addleman pled
not guilty to all charges in the initial information. However, in the January 2020 amended
information, the charges related to A.K. were changed; the other charges remained the same. The
amended information now charged Addleman with third degree sexual assault of a child (count
III) and first degree sexual assault of a child older than 12 years old but younger than 16 years old
(count V), with both charges naming A.K. as the victim.
On February 7, 2020, the district court held a hearing in which it considered the State’s
motion for leave to amend the information. The State explained that A.K. had “disclosed . . . more
details,” and “further information . . . provided to the State” through A.K.’s second forensic
interview, supplied the basis for the two new charges in the amended information. Addleman
objected to the State’s motion, arguing that the State did not properly file the amended information,
the new charges were “significantly different” from those in the initial information, the amended
information was untimely and prejudicial in light of the pretrial conference scheduled for March
25, and the State’s filing was vindictive in nature. The court overruled Addleman’s objection and
granted the State’s motion. The court advised Addleman of his right to a preliminary hearing
regarding the new charges contained in the amended information and asked if he desired a
preliminary hearing for those charges. Addleman replied, “No,” and the court accepted his
response as “a knowingly, intelligent waiver of the right to a preliminary hearing.” The court then
advised Addleman of the allegations underlying the two new charges and the penalties if convicted,
and Addleman pled not guilty to both counts.
A district court, in its discretion, may permit the prosecution to amend a criminal
information before trial, provided the amendment does not change the nature or identity of the
offense charged and the information, as amended, does not charge a crime other than the one on
which the accused has his preliminary examination. State v. Gascoigen, 191 Neb. 15, 213 N.W.2d
452 (1973). However, this proposition does not preclude the State from ever filing an amended
information containing charges substantially different from those contained in the original
information. Rather, if an amended information containing new, unrelated charges is filed, due
process requires the defendant be afforded an additional preliminary hearing on those new charges.
See State v. Ferree, 207 Neb. 593, 299 N.W.2d 777 (1980) (determining that under State v.
Costello, 199 Neb. 43, 256 N.W.2d 97 (1977), prosecution could not amend complaint so that
nature or identity of charged offenses had been changed without preliminary hearing on those
charges in amended complaint). However, if the defendant is given a preliminary hearing and the
information is later amended to charge a crime that includes some of the elements of the original
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crime charged without the addition of any element irrelevant to that original charge, no new
preliminary hearing is necessary. See State v. Ferree, supra.After overruling Addleman’s objection, the district court advised Addleman of his right to
a preliminary hearing on the amended information and asked if he desired that hearing. After
conversing with counsel, Addleman declined to have a preliminary hearing and thereafter pled not
guilty to the new charges. We need not address whether the charges in the amended information
were substantially different from those in the original information, because we find Addleman
knowingly and intelligently waived his right to a preliminary hearing on the charges in the
amended information. See id. (to be valid, waiver of constitutional rights must be intentional
relinquishment or abandonment of known right or privilege). In this case, Addleman was properly
afforded due process with respect to the filing of the charges in the amended information. See id.(defendant not afforded due process when trial court allowed prosecution to file amended
complaint without additional preliminary hearing; record did not affirmatively demonstrate
defendant waived right to preliminary hearing for charges of violating probation based on grounds
not supported by evidence presented at initial preliminary hearing).
We further note that despite Addleman’s claim that the amended information required him
to modify his defense plan in a short window of “5 weeks prior to pretrial,” brief for appellant at
29, the record indicates the pretrial conference initially scheduled for March 25, 2020, was first
continued until March 30, and later continued until May 22. Addleman therefore had at least two
additional months to prepare his defense before the pretrial conference, and the record indicates
that his counsel was able to gather evidence and depose several witnesses relevant to the charges
in the amended information during that period. Moreover, if Addleman was not prepared, he could
have requested an additional continuance, but there is nothing in our record to indicate that was
done. Trial did not begin until June 29. In light of the record and applicable law, we conclude the
district court did not abuse its discretion in allowing the State to file the amended information.
2. ADDLEMAN’S PRIOR SEXUAL ASSAULT CONVICTIONS
Addleman claims the district court erred in allowing the State to present to the jury
testimony and evidence regarding his prior convictions for attempted sexual assault.
Pursuant to § 27-414(1), in a criminal case in which the defendant is accused of an offense
of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual
assault is admissible if there is clear and convincing evidence otherwise admissible under the
Nebraska Evidence Rules that the defendant committed the other offense or offenses. If admissible,
such evidence may be considered for its bearing on any matter to which it is relevant. Id. When
the State intends to offer evidence of a defendant’s prior offenses of sexual assault, § 27-414(2)
requires the prosecuting attorney to disclose that evidence to the defendant, including witness
statements or summaries of any testimony expected to be offered, at least 15 days prior to trial.
Before that evidence is admitted, the trial court must hold a hearing outside the presence of the
jury where the rules of evidence apply, and the court shall apply a balancing test pursuant to Neb.
Rev. Stat. § 27-403 (Reissue 2016), to determine whether the risk of prejudice substantially
outweighs the probative value of that evidence. See § 27-414(3). The trial court “may consider any
relevant factor such as (a) the probability that the other offense occurred, (b) the proximity in time
and intervening circumstances of the other offenses, and (c) the similarity of the other acts to the
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crime charged.” Id. In the context of this balancing test, “unfair prejudice” means an undue
tendency to suggest a decision based on an improper basis and speaks to the capacity of some
concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from
proof specific to the offense charged, commonly on an emotional basis. See State v. Chauncey,
295 Neb. 453, 890 N.W.2d 453 (2017).
Addleman first argues that the State should not have been allowed to present the testimony
of the witnesses to the district court during trial because “the State was not able to follow[] clear
statutory requirements prior to trial under its own motion.” Brief for appellant at 31. Addleman
claims that his “rights were clearly violated by the State not being prepared” for the March 2020
hearing as the State was given “a second chance to ‘prove’ their case during the middle of trial”
through the admission of the evidence of Addleman’s prior sexual assault convictions. Id.The State gave notice of its intent to offer evidence and witness testimony regarding
Addleman’s prior convictions on August 8, 2019, when it filed a “Notice of State’s Intent to Use
N.R.S. § 27-414.” While the State failed to produce the prior victims to testify at the March 4,
2020, hearing, the district court expressly declined to rule on the admissibility of the evidence and
testimony until those two witnesses testified. Those witnesses thereafter testified outside the
presence of the jury during trial. After hearing their testimony, the court granted the State
permission to present the § 27-414 testimony and evidence to the jury. Our review of the record
indicates that the procedural requirements of § 27-414 were satisfied in this case, and we
accordingly find no impropriety in the sequence of events.
Addleman next argues that the district court erred in admitting testimony and evidence
relating to Addleman’s 2002 and 2003 convictions. Addleman primarily asserts that these “prior
convictions do not have similarities to the current charges and only served to highly prejudice
[him] and to confuse and manipulate the jury into conviction under a theory of ‘he did it before,
so it had to be him now.’” Brief for appellant at 29-30. Addleman highlights several dissimilarities
between his prior convictions and the present case. He states that, unlike the victims in his prior
convictions, M.K. and A.K. could not clearly identify him as the perpetrator and that their
encounters were limited to a single instance rather than multiple separate encounters. He further
contrasts the prior convictions, which stemmed from sexual encounters with consenting
participants (although not of legal age to consent), to his encounters with M.K. and A.K., who, by
their testimony, were not willing participants. Addleman also emphasizes the difference in the ages
between the prior victims, who testified that they were 15 at the time of their encounters with
Addleman, and M.K. and A.K., who were 7 and 13 respectively in November 2017. He also notes
the temporal remoteness of these prior offenses, as “[t]here was a difference of 15 years between
the last conviction and current charge, wherein the three priors were basically 1 year apart.” Id. at
32.
As previously set forth, the district court “allow[ed] the presentation of the prior sexual
assaults from Phelps County . . . and Scotts Bluff County[,]” but determined that “the [1994] sexual
assault from Douglas County [was] not admissible.” The court found “strong similarity between
the Phelps and Scotts Bluff County cases and the case currently on trial.” In its June 30, 2020,
journal entry, the court stated:
All of the victims are young; mid-teens or younger. All the victims had some level
of social acquaintance with the defendant. In each case, the defendant had some level of
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trust established with the victims to create an opportunity for the assaults. In the prior cases,
the defendant offered the victims alcohol, something they wanted and would have had
some difficulty obtaining, to place himself in a position to engage in sexual conduct with
them. The victims displayed a belief they had some type of “relationship” with the
defendant. In the current case, the defendant was acquainted with the victim’s [sic] mother,
and the victims had met him before; and this gave him access to the victims. None of the
assaults are random acts of violence against unknown victims.
The assaults all involve some level of contact or penetration.
None of the acts are initially legal acts which become illegal due to withdrawal of
consent; in the prior cases, the acts are illegal because of the age difference, regardless of
consent. While there is no indication of consent in the current case, the issue is the same,
as the age differen[ce] makes consent irrelevant.
The two priors show a consistent and continuous pattern of sexual assault against
young female victims.
The court also noted that there had “been about 15-16 years between the prior offenses and the
current.” However, the court found that this time period did not render the prior offenses so remote
that the evidence should not be admissible; intervening circumstances included Addleman’s
incarceration for those prior offenses.
While we recognize that there are differences between Addleman’s prior offenses and the
facts of the case before us, § 27-414 does not require the circumstances of those prior offenses to
precisely match the circumstances of the present offenses. See, State v. Valverde, 286 Neb. 280,
835 N.W.2d 732 (2013) (finding prior offenses sufficiently similar to be admitted under § 27-414
despite victims’ ages ranging from 12 to 14, individual assaults involving different forms of sexual
contact, and each assault occurring at different location where defendant was residing); State v.
Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012) (finding prior offenses sufficiently similar to be
admitted under § 27-414 where all victims knew defendant and their ages ranged from 5 to 16;
prior and charged offenses also included common acts such as touching and digital penetration).
We observe, as the district court did, that Addleman’s prior sexual assaults and the present case
were initiated by Addleman and involved victims who were below the age of consent at the time
of the respective offenses. The prior offenses and the current charges all involved touching in a
sexual nature and, with the exception of the charges relating to M.K. in this case, also involved the
digital or penile penetration of the victim. The record before us also indicates the victims all knew
Addleman in some capacity prior to the respective offenses and Addleman likewise knew them.
We find that Addleman’s prior offenses were similar enough to the charges in the present case to
be admissible under § 27-414.
We also recognize the significant amount of time between Addleman’s prior offenses and
the charges in the present case. However, the question of whether evidence of other conduct is too
remote in time is largely within the discretion of the trial court. See State v. Valverde, supra. While
remoteness in time may weaken the value of the evidence, such remoteness does not, in and of
itself, necessarily justify exclusion of the evidence. See id. We note that the Nebraska Supreme
Court has upheld the admission of prior sexual assaults that were similarly remote to the charged
offense as in the present case. See, id. (evidence of prior sexual assaults admissible where earliest
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prior act occurred 15 years before charged offenses and latest prior act occurred 13 years before
charged offenses); State v. Kibbe, supra (evidence of prior sexual assaults admissible when earliest
prior act occurred 26 years before charged offenses and latest prior act occurred 14 years before
charged offenses). In light of the similar timeframe between Addleman’s prior sexual assaults and
the present case, and taking into account Addleman’s terms of incarceration for those prior
offenses, we are not persuaded that Addleman’s prior sexual assaults were so temporally remote
as to render the evidence thereof inadmissible.
In considering the provisions of § 27-414 and the record before this court, we cannot say
the district court abused its discretion in admitting the evidence and testimony regarding
Addleman’s 2002 and 2003 attempted sexual assault convictions. This evidence was therefore
properly placed before the jury at trial.
3. SUFFICIENCY OF EVIDENCE
Addleman contends that the evidence was not sufficient to sustain his sexual assault
convictions.
In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate
court does not resolve conflicts in evidence, pass on the credibility of witnesses, or reweigh the
evidence; such matters are for the finder of fact. State v. Figures, 308 Neb. 801, 957 N.W.2d 161(2021). The relevant question for an appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id.(a) Statutory Elements and Relevant Testimony
The jury convicted Addleman of third degree sexual assault of child and first degree sexual
assault of a child. Section 28-320.01 provides, in relevant part:
(1) A person commits sexual assault of a child in the second or third degree if he or
she subjects another person fourteen years of age or younger to sexual contact and the actor
is at least nineteen years of age or older.
....
(3) Sexual assault of a child is in the third degree if the actor does not cause serious
personal injury to the victim.
Additionally, § 28-319.01 provides in relevant part that a person commits first degree sexual
assault of a child when he or she “subjects another person who is at least twelve years of age but
less than sixteen years of age to sexual penetration and the actor is twenty-five years of age or
older.”
As we have set forth previously, testimony and other evidence adduced at trial indicated
that A.K. was subjected to sexual contact and sexual penetration in November 2017, and A.K.
identified Addleman in a photo array and at trial as the perpetrator. A.K. was 13 years old in
November 2017, and Addleman was around 44 years old at that time. Taking the record before us
in the light most favorable to the prosecution, a rational fact finder could have found Addleman
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guilty of third and first degree sexual assault of a child beyond a reasonable doubt. The evidence
was therefore sufficient to support his convictions.
(b) Challenges to Evidence
Nevertheless, Addleman makes two general claims challenging the evidence supporting
his convictions. First, he once again asserts that the district court erred in admitting the evidence
of his prior sexual assault convictions and alleges that it was this “purely prejudicial 15-year-old
evidence that allowed [him] to be convicted.” Brief for appellant at 38. As we previously found,
the district court did not abuse its discretion in admitting this evidence.
Second, Addleman claims that attempts to identify him as the perpetrator of the current
crimes were unreliable, flawed, and prejudicial. More specifically, he asserts that (1) A.K.’s
identifications of him during the photo array and at trial were improperly suggestive and therefore
unreliable, (2) the investigation by law enforcement was flawed, and (3) his presence at trial was
prejudicial such that his constitutional rights to due process were violated.
Addleman claims that the description given by A.K. to law enforcement of a person who
was “bald” with blue eyes, “a scruffy beard,” and a build “between muscular and skinny” did not
match Addleman’s “brown hair, not balding, . . . brown eyes and tattoos.” Brief for appellant at
39. Addleman contends that this mismatch was further compounded by photo arrays that included
photographs that had more differences than similarities to Addleman’s photograph, including
“differences such as hair vs balding, beards vs no beards, etc.” Id. at 40. He argues that these photo
arrays were impermissibly suggestive due to the differences between his photograph and the other
photographs, and he asserts that such suggestiveness rendered the photo array constitutionally
invalid. Addleman further claims that his mere presence at trial, where A.K. identified him,
violated his right against self-incrimination because it made “it easy for any witness to claim he
was their assailant” despite the State not having “any identification [by M.K. or A.K.] prior to
trial.” Id. at 42. Our review of the record does not show that Addleman raised these constitutional
concerns at the trial court level, and thus we will not consider such on appeal. See State v. Reinhart,
283 Neb. 710, 811 N.W.2d 258 (2012) (constitutional issue not presented to or passed upon by
trial court not appropriate for consideration on appeal).
Addleman also claims that the investigation into these assaults was flawed in that
“Investigator Kiesel did not interview all potential suspects; did not ask for other DJs; [and] did
not ask [Addleman] for his [dating app] profile” or the mother’s profile. Brief for appellant at 41.
Additionally, per Investigator Kiesel’s testimony, A.K.’s text message sent to the siblings’ mother
on the night of the assaults was not recovered from their mother’s phone or A.K.’s phone during
the investigation. Addleman’s brief primarily emphasizes the apparent inconsistencies in the
siblings’ given descriptions and the manner in which the criminal investigation was carried out.
However, we note that Addleman’s counsel extensively cross-examined M.K., A.K.,
Investigator Kiesel, and other witnesses during trial regarding these matters. We have previously
set forth the accounts given by M.K. and A.K. regarding the night of the assaults and events
occurring thereafter. Investigator Kiesel testified extensively regarding the criminal investigation
and his decisions throughout, and matters such as the discrepancies in the siblings’ descriptions,
the nature of the photo arrays, and the leads he chose to not follow in the investigation were
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highlighted by Addleman’s counsel on cross-examination. The alleged shortcomings in the
investigation were made known to the jury and emphasized significantly over the course of trial.
The evidentiary challenges Addleman brings on appeal do not go towards the question of
whether the essential elements of third and first degree sexual assault of a child have been satisfied
in this case. Rather, Addleman’s arguments go towards the credibility of witness testimony and
the weight to be given to the results of the criminal investigation and other evidence presented at
trial. As precedent makes clear, that is not the province of this court. See State v. Figures, supra(appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, or reweigh
evidence; such matters are for finder of fact).
4. MOTION FOR NEW TRIAL
Addleman claims the district court abused its discretion in denying his motion for new trial.
In his motion, he argued that prosecutorial misconduct occurred during closing arguments, the
district court improperly responded to a question from the jury during deliberation, and the
evidence was insufficient to sustain his conviction. 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. Hairston, 298 Neb. 251, 904 N.W.2d 1 (2017).
We have already found that the evidence was sufficient to sustain Addleman’s conviction,
and the district court therefore did not abuse its discretion in denying Addleman’s motion for new
trial on that basis.
(a) Juror Affidavit
Before we address Addleman’s remaining claims regarding the denial of his motion for
new trial, we observe that Addleman’s claims rely extensively on the juror affidavit offered and
received at the hearing on Addleman’s motion for new trial.
Neb. Rev. Stat. § 27-606(2) (Reissue 2016) governs the admissibility of evidence regarding
the validity of a jury’s verdict and states:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to
any matter or statement occurring during the course of the jury’s deliberations or to the
effect of anything upon his or any other juror’s mind or emotions as influencing him to
assent to or dissent from the verdict or indictment or concerning his mental processes in
connection therewith, except that a juror may testify on the question whether extraneous
prejudicial information was improperly brought to the jury’s attention or whether any
outside influence was improperly brought to bear upon any juror. Nor may his affidavit or
evidence of any statement by him indicating an effect of this kind be received for these
purposes.
The Nebraska Supreme Court has further stated that no evidence may be received concerning the
effect of any statement upon a juror’s mind, its influence upon the juror, or the mental processes
of a juror. See State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015). Section 27-606(2) does
not allow a juror’s affidavit to impeach a verdict on the basis of jury motives, methods,
misunderstanding, thought processes, or discussions during deliberations. Id.- 13 -
The juror affidavit in this case includes statements regarding the juror’s position as a “hold
out” during deliberation and his reasoning behind his position, the district court’s response to the
jury’s request to view the recording of A.K.’s forensic interview causing the juror to feel “as if
[he] had to change [his] vote,” the impact of the prosecution’s statements concerning an
intrauterine device (IUD) on the jury’s deliberation, and the alleged weight given by other jurors
to Addleman’s prior convictions and other evidence and statements. The operative portions of the
affidavit primarily describe the mental processes of the individual juror as well as those of the
other jurors over the course of deliberation. Under § 27-606(2), it is improper for a court to
consider such statements in determining whether misconduct affecting the verdict has occurred
and whether any such misconduct was prejudicial. See, also, State v. Stricklin, supra (juror’s
statements as to his desire to vote not guilty, pressure from other jurors to change his vote, his
“moral dilemma,” and jury’s reliance upon defendant’s failure to testify were inadmissible under
§ 27-606(2) and could not have been considered by trial court regarding defendant’s motion for
new trial). A juror may provide evidence regarding “whether extraneous prejudicial information
was improperly brought to the jury’s attention or whether any outside influence was improperly
brought to bear upon any juror.” § 27-606(2). See, also, State v. Stricklin, supra. As such, in the
context of Addleman’s motion for new trial, we consider the juror affidavit only in regard to the
district court’s response to the jury’s request to see the recording of A.K.’s forensic interview and
the prosecution’s statements during closing argument concerning A.K. having an IUD.
We proceed now to address Addleman’s remaining claims alleged in his motion for new
trial.
(b) Prosecutorial Misconduct
Addleman argues that statements made by the prosecution during closing arguments
regarding A.K. having an IUD were improper and constituted prosecutorial misconduct.
Prosecutorial misconduct encompasses conduct that violates legal or ethical standards for
various contexts because the conduct will or may undermine a defendant’s right to a fair trial. State
v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020). Prosecutors are charged with the duty to conduct
criminal trials in such a manner that the accused may have a fair and impartial trial, and prosecutors
are not to inflame the prejudices or excite the passions of the jury against the accused. Id. A
prosecutor’s conduct that does not mislead and unduly influence the jury does not constitute
misconduct. Id. In assessing allegations of prosecutorial misconduct in closing arguments, a court
first determines whether the prosecutor’s remarks were improper. Id. It is then necessary to
determine the extent to which the improper remark had a prejudicial effect on the defendant’s right
to a fair trial. Id. Whether prosecutorial misconduct is prejudicial depends largely on the context
of the trial as a whole. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). In determining whether
a prosecutor’s improper conduct prejudiced the defendant’s right to a fair trial, an appellate court
considers the following factors: (1) the degree to which the prosecutor’s conduct or remarks tended
to mislead or unduly influence the jury; (2) whether the conduct or remarks were extensive or
isolated; (3) whether defense counsel invited the remarks; (4) whether the court provided a curative
instruction; and (5) the strength of the evidence supporting the conviction. Id.- 14 -
During closing arguments, Addleman drew attention to the lack of “medical proof” that
A.K. was penetrated and the fact that no physical examination of A.K. was conducted to “help
prove that [A.K.] was, in fact, penetrated.” In its rebuttal, the State argued in part:
There is some talk about SANE examination. I don’t believe there was any evidence as to
what a SANE exam actually is. There was a question about whether it was done. You have
to consider the evidence in front of you. The evidence from Investigator Kiesel was that
this was not a case we could do a rape kit on. The other testimony was that [A.K.] has an
IUD, an intrauterine device, which by definition is inserted into [A.K.’s] uterus up through
[A.K.’s] vagina and so there will be some sort of vaginal penetration.
Addleman subsequently objected to these statements, arguing that “the testimony about whether
[A.K.] had an IUD was not presented at trial.” Addleman requested that the district court instruct
the jury to disregard that statement. The court overruled the objection. Addleman subsequently
alleged the prosecution’s statements as a ground for his motion for new trial, and the court denied
this motion as well.
In determining whether the prosecutor’s statements amounted to misconduct, three pieces
of testimony are relevant. At trial, A.K. testified to having had an IUD implanted around August
2018; this was several months after the November 2017 sexual assault and prior to her 2019
disclosures of the assault. Investigator Kiesel then stated during direct examination that this was
not a case where DNA evidence would be possible to attain due to the “[t]imeframe” involved and
the issue of “cross contamination,” as A.K. had bathed in the time following the assault and “the
DNA would be gone.” And when questioned on cross-examination regarding why there was no
examination by a sexual assault nurse examiner (SANE) requested in this case, Investigator Kiesel
affirmed that they “could not do a rape kit . . . because of the delayed disclosure.”
A prosecutor must base his or her argument on the evidence introduced at trial rather than
on matters not in evidence. State v. Mrza, supra. While a prosecutor is entitled to draw reasonable
inferences from the evidence in presenting his or her case or to argue against a defense theory, see
State v. Price, supra, we conclude that the prosecution’s statements concerning A.K.’s IUD as a
reason for why no physical examination was conducted were not based upon the evidence adduced
at trial. Investigator Kiesel did not testify that A.K.’s IUD played a role in the decision to not
request a SANE examination, and the other evidence and testimony in the record does not suggest
that an IUD would factor into such a decision. We therefore find that these statements by the
prosecution were improper.
However, our inquiry does not end there, and we must determine whether the prosecutor’s
statements during closing argument prejudiced Addleman’s right to a fair trial. Addleman claims
that these “comments were extensive” and “highly influential on the conviction” as evidenced by
a juror affidavit offered and received during the hearing on his motion for new trial. Brief for
appellant at 35. The juror affidavit claims that the issues of whether A.K. had an IUD and the
impact of such an IUD comprised a significant portion of the discussions during deliberation.
However, as we previously described, these statements in the affidavit are not a proper
consideration for this court’s review. See § 27-606(2).
In considering the record before us, we are not persuaded that Addleman was prejudiced
by the prosecution’s statements during closing arguments. Despite Addleman’s assertions to the
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contrary, these statements comprised a minor and isolated part of the State’s closing argument and
rebuttal. We further note that the questions of whether A.K. had an IUD and the effect of that IUD
on the feasibility of a SANE examination do not bear on the essential elements of third and first
degree sexual assault of a child in this case, as it was undisputed that no SANE examination was
requested or conducted. While the district court did not provide a specific curative instruction, the
jury was instructed that the arguments presented by counsel during closing arguments were not to
be treated as evidence. The prosecution’s statement was also overshadowed by A.K.’s testimony
concerning the sexual assault and Investigator Kiesel’s testimony concerning the feasibility of any
physical examination of A.K., which we have previously set forth above. To the extent that the
State’s references to an IUD were improper, we find that Addleman was not prejudiced so as to
warrant a new trial.
(c) District Court’s Response to Jury Request
Addleman claims that the district court’s response to a question from the jury during
deliberation without counsel present was improper. During deliberation, the jury submitted a
question asking for “a copy of [A.K.’s] testimony if possible” and to see the videos of the forensic
interviews. The videos of the forensic interviews were not received into evidence during trial.
Without consulting the prosecution or Addleman’s counsel, the district court issued a response to
the jury that read: “You have all the evidence in the case, as it has been previously presented to
you. Do you have a specific question about the evidence you are trying to resolve?” The jury did
not respond to the court’s inquiry and did not submit further questions to the court during
deliberation. A copy of the jury’s question and the district court’s response was provided to the
State and Addleman when the jury returned from deliberation to deliver its verdict.
The Nebraska Supreme Court has stated that “if it becomes necessary to give further
instructions to the jury during deliberation, the proper practice is to call the jury into open court
and to give any additional instructions in writing in the presence of the parties or their counsel.”
State v. Hudson, 277 Neb. 182, 189, 761 N.W.2d 536, 542 (2009). In a similar vein, Neb. Rev.
Stat. § 25-1116 (Reissue 2016) provides:
After the jury have retired for deliberation, if there be a disagreement between them as to
any part of the testimony, or if they desire to be informed as to any part of the law arising
in the case, they may request the officer to conduct them to the court where the information
upon the point of law shall be given, and the court may give its recollection as to the
testimony on the point in dispute in the presence of or after notice to the parties or their
counsel.
When a jury makes a request to rehear certain evidence, under the common-law rule, the
trial court must discover the exact nature of the jury’s difficulty, isolate the precise testimony
which can solve it, and weigh the probative value of the testimony against the danger of undue
emphasis. State v. Bao, 263 Neb. 439, 640 N.W.2d 405 (2002). If, after this careful exercise of
discretion, the court decides to allow some repetition of the evidence, it can do so in open court in
the presence of the parties or their counsel or under strictly controlled procedures of which the
parties have been notified. Id.- 16 -
We find that the district court’s response to the jury in this case was neither an additional
instruction nor a recitation of evidence for which the law commands the parties or counsel to be
present. The jury inquired as to whether it could view the videos of the siblings’ forensic
interviews, however, those videos were not received as evidence. The court’s response informed
the jury that it had “all the evidence in the case, as it has been previously presented to you.” The
jury also requested to review A.K.’s testimony, and the court’s response, in accord with State v.
Bao, supra, asked the jury for further information with which the court could identify and isolate
the jury’s concern regarding evidence it wished to rehear. The court did not issue a substantive
instruction to the jury outside the presence of counsel, and no piece of evidence was recited or
otherwise presented again to the jury during deliberation. Accordingly, we cannot say the district
court’s response to the jury was improper because of the absence of the parties.
Further, as previously described, Addleman’s claim that the district court’s response to the
jury’s request caused him prejudice primarily relies upon the juror affidavit describing that the
juror “felt as if [he] had to change [his] vote” of “not guilty” because of the court’s response. As
we have described, these statements fall within the purview of evidence deemed inadmissible by
§ 27-606(2), and we therefore will not consider them in our review for whether Addleman was
prejudiced by the court’s response to the jury’s request.
Rather, our review is guided by the inquiry into whether the district court’s communication
with the jury had any tendency to influence the verdict. See State v. Jackson, 264 Neb. 420, 648
N.W.2d 282 (2002). If the record affirmatively shows or is silent as to the possibility of such
prejudice, a new trial should be granted. See State v. Mahlin, 236 Neb. 818, 464 N.W.2d 312(1991). Reversal is not required if the record affirmatively shows that the communication had no
tendency to influence the verdict. State v. Jackson, supra. Upon our review of the record, the
court’s response to the jury’s inquiry did not have a tendency to influence the verdict. Despite
Addleman’s assertions to the contrary, the meaning of the court’s response was clear: the jurors
had all the evidence presented to them at trial for their consideration. Further, the court asked if
there was a specific question about the evidence that the jury was trying to resolve. The jury did
not respond and did not submit any further specific questions to the court during deliberation. The
court’s response was not a supplementary instruction and cannot reasonably be interpreted as
attempting to coerce or intimidate the jury into reaching a verdict or otherwise be construed to
have a tendency to improperly influence the verdict. The court did not abuse its discretion in
denying Addleman’s motion for new trial on this basis.
5. EXCESSIVE SENTENCE
Addleman further claims that the district court imposed excessive sentences. Addleman
was convicted of one count of third degree sexual assault of a child, a Class IIIA felony, pursuant
to § 28-320.01(3), and one count of first degree sexual assault of a child, a Class IB felony,
pursuant to § 28-319.01(2). A Class IIIA felony is punishable by a maximum of 3 years’
imprisonment and 18 months’ post-release supervision, a $10,000 fine, or both; there is no
minimum term of imprisonment, but there is a minimum of 9 months’ post-release supervision if
imprisonment is imposed. See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2020). However,
post-release supervision is not applicable in this case because Addleman was also sentenced to
imprisonment for a Class IB felony. See Neb. Rev. Stat. § 29-2204.02(4) (Reissue 2016). The
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Class IB felony in this case is punishable by a mandatory minimum of 15 years’ imprisonment and
a maximum of life imprisonment. See §§ 28-105(1) and 28-319.01(2). See, also, State v. Russell,
291 Neb. 33, 863 N.W.2d 813 (2015) (range of penalties for sexual assault of child in first degree,
first offense, under § 28-319.01(2) is 15 years to life imprisonment).
However, the district court also found Addleman to be a habitual criminal under Neb. Rev.
Stat. § 29-2221 (Reissue 2016) and therefore counts III and V were subject to that statute. Section
29-2221(1) provides that, with the exception of crimes committed in violation of particular
statutes, a defendant deemed to be a habitual criminal shall be punished by imprisonment for a
mandatory minimum term of 10 years and a maximum term of 60 years. Accordingly, because
Addleman was found to be a habitual criminal, his convictions were punishable by a mandatory
minimum term of 10 years’ and a maximum term of 60 years’ imprisonment.
The district court sentenced Addleman to 10 to 20 years’ imprisonment for count III, third
degree sexual assault of a child, and stated that 10 years was the mandatory minimum. It sentenced
him to 30 to 60 years’ imprisonment for count V, first degree sexual assault of a child, and stated
that 15 years was the mandatory minimum. At sentencing, the district court noted that the habitual
criminal enhancement had no effect on the sentence in count V because that conviction was already
subject to a mandatory minimum of 15 years’ imprisonment. In other words, the 10-year
mandatory minimum sentence for the habitual criminal enhancement was subsumed by the 15-year
mandatory minimum sentence required by § 28-319.01(2). The court ordered that the sentence for
count V was to be served consecutively to the sentence for count III. The court credited Addleman
with 430 days for time previously served. Addleman’s sentences are within the statutory ranges as
provided under the statutes discussed above. We next consider whether the district court abused
its discretion in the sentences ordered.
When 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 violence involved in the commission of the crime. State v.
Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). 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.Addleman was 47 years old at the time of sentencing. His criminal history includes “Sexual
Assault on Child (Class II Felony)” in 1994 (2 years’ probation); “Theft (Class I Misdemeanor)”
in 1997 ($200 fine plus court costs); “Disturbing the Peace” in 1999 ($150 fine plus court costs);
two charges of “Disturbing the Peace” in 2001 (1 day in jail on one; $50 fine plus court costs on
the other); one charge of “Procuring or Selling Alcohol to a Minor” in 2001 ($250 fine plus court
costs); “Attempted 1st Degree Sexual Assault” in 2002 (3 to 4 years’ imprisonment); “Attempted
1st Degree Sexual Assault on a Minor” in 2003 (3 to 5 years’ imprisonment); “Disturbing the
Peace” in 2009 (2 years’ probation); two charges of “Attempted Failure of Sexual Offender to
Register” in 2010 (concurrent sentences of 180 days in jail); a conviction in Wyoming for “Sex
Offender-Fail to Register-1st Offense” in 2010 (16 to 36 months’ imprisonment); “Sex Offender
Registration Violation-Felony Second or Subsequent Offense” in 2014 (24 to 48 months’
imprisonment); two charges of “Attempted Possession of a Controlled Substance” in 2017 (180
days in jail); and “Commit Child Abuse Intentional/No Injury” in 2017 (3 years’ imprisonment).
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His criminal history also includes convictions for driving under the influence and other traffic
offenses.
The probation officer conducted a “Level of Service/Case Management Inventory” and
assessed Addleman as having a “Very High” risk to reoffend. Addleman scored “very high
risk/need” in the criminogenic risk factor domains for criminal history, companions, and antisocial
pattern. He scored “high risk/need” in the domains for family/marital, leisure/recreation,
alcohol/drug problem, and pro-criminal attitude and orientation. He scored “low risk/need” in the
domain for education/employment. Addleman was further administered the “Vermont Assessment
of Sex Offender Risk-2” and the “Sex Offender Treatment Intervention and Progress Scale.” The
presentence investigation report states that he was assessed as a high risk on both instruments.
At the sentencing hearing, Addleman’s counsel highlighted the differences between
Addleman’s prior sexual assault convictions and the present case and additionally noted the issues
that we have previously addressed in this opinion. Counsel emphasized Addleman’s cooperation
throughout the events of this case and requested that the court impose the minimum sentences
permitted by the habitual criminal statute.
The district court stated that it had reviewed the presentence investigation report and
considered the sentencing factors relevant to the facts of this case. The court noted that probation
was “not an option” due to the mandatory minimum sentences of imprisonment stemming from
the applicable statutes and further concluded that Addleman was “in need of treatment that can
best be provided in a correctional setting.” The district court then proceeded to sentence Addleman
as set forth previously.
Addleman argues that the facts of this case show that he “should have received the statutory
minimums on all charges.” Brief for appellant at 43. In support of his argument, Addleman points
towards “the discrepancies of testimony, lack of evidence, shoddy investigation, lack of
identification and faulty photo array,” and the undue weight given to his prior sexual assault
convictions. Addleman also emphasizes that he “was truthful during his [presentence]
investigation” and “[t]here were recommendations made in the [presentence investigation report]
that [he] could have benefited from probationary programs and terms.” Id. at 44. He asserts the
district court “overlooked all of these factors and provided an excessive punishment.” Id.We have previously addressed the allegations Addleman raised regarding the proceedings
and evidence in this case in full. Having considered the relevant factors in this case, we cannot say
that the sentences imposed upon Addleman were an abuse of the district court’s discretion.
VI. CONCLUSION
For the reasons set forth above, we affirm Addleman’s convictions and the sentences
imposed by the district court.
AFFIRMED.
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