State v. O'Connor ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. O’CONNOR
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.
DANIEL J. O’CONNOR, APPELLANT.
Filed March 8, 2016. No. A-15-625.
Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE and MARK J.
YOUNG, Judges. Affirmed.
David A. Domina and Amelia V. Prickett, of Domina Law Group, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
MOORE, Chief Judge, and INBODY and BISHOP, Judges.
MOORE, Chief Judge.
I. INTRODUCTION
Daniel J. O’Connor appeals from his conviction in the district court for Buffalo County for
one count of first degree sexual assault of a child and one count of third degree sexual assault of a
child. On appeal, he assigns error to certain evidentiary rulings, the definitions in a particular jury
instruction, and the sufficiency of the evidence. He also asserts that he received excessive
sentences, that the incorrect judges imposed sentence and ruled on his motion for new trial, and
that he received ineffective assistance of trial counsel. Finding no merit to O’Connor’s assignments
of error, we affirm.
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II. BACKGROUND
1. INFORMATION AND PRETRIAL MOTIONS
On August 22, 2014, the State filed an information charging O’Connor in count I with first
degree sexual assault of a child in violation of Neb. Rev. Stat. § 28-319.01(1)(b) (Cum. Supp.
2014), a Class IB felony, and in count II with third degree sexual assault of a child, in violation of
Neb. Rev. Stat. § 28-320.01(1) (Reissue 2008), a Class IIIA felony. Specifically, in count I, the
State alleged that between December 2012 and June 30, 2014, O’Connor, a person 25 years old or
older, subjected B.K., a person at least 12 years old but less than 16, to sexual penetration. In count
II, the State alleged that on or about July 27, 2014, O’Connor, a person 19 years old or older,
subjected B.K., a person 14 years old or younger, to sexual contact and did not cause serious
personal injury.
On March 27, 2015, O’Connor filed a motion in limine, seeking to prevent any of the
State’s witnesses, including B.K.’s therapist, from testifying that “[a]ny diagnosis of B.K. for
[post-traumatic stress disorder (PTSD)] or similar disorder is caused by sexual abuse or caused by
sexual abuse of [O’Connor]” and from giving any opinion regarding the credibility of B.K. or any
other witness. On April 6, the State filed a motion in limine, seeking to prohibit O’Connor “from
questioning, eliciting, implying, alluding to, or commenting about any reference to a [newspaper]
article or information contained within regarding a paranormal investigation of [the therapist’s]
home or paranormal investigation as a legitimate field.” Following a hearing, the district court
granted both motions.
2. TRIAL
A jury trial was held on April 13-14, 2015. We note that two different district court judges
handled the proceedings in this case. One judge handled all of the pretrial motions and sentenced
O’Connor, and we have referred to this judge when necessary as “the first judge.” A different
judge presided over the jury trial and ruled on O’Connor’s subsequent motion for new trial, and
we have referred to this judge when necessary as “the second judge.”
B.K., the victim in this case, was born in August 2000 and is O’Connor’s stepdaughter.
O’Connor was born in January 1979, and he married B.K.’s mother, C.O., in May 2008. The couple
had a son, E.O., who was 4 years old at the time of trial. B.K. and E.O. had separate bedrooms on
the main floor of the family residence, while O’Connor and C.O.’s bedroom was in the basement.
Around 6 p.m. on the evening of July 26, 2014, O’Connor, C.O., E.O, B.K., and a friend
of B.K.’s went to an event at the county fair, but they left early because of E.O.’s behavior. After
returning B.K.’s friend to his house, the family returned to their own house around 9 p.m. B.K.
went inside to watch television. O’Connor and C.O. invited over some friends, and the adults sat
outside drinking beer for approximately two hours. C.O. testified that O’Connor drank at least 12
beers that night.
At some point, C.O. went inside and told B.K. to go to bed since she had to get up early
for her detasseling job. Before going to bed at 11 p.m., C.O. and O’Connor put E.O. down to sleep
on the couch in the basement because he was not feeling well.
Sometime after everyone had gone to bed, O’Connor got out of bed and went upstairs to
B.K.’s bedroom and began “touching” her with his hands. B.K. testified that she was asleep when
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O’Connor initially entered her room and sat down on her bed. According to B.K., when O’Connor
was touching her, he was sitting on her bed and the covers were “[o]ff to the side.” She testified
that O’Connor pulled up her tank top and pulled down her sweatpants and spandex shorts and
began moving his hands over her breasts, stomach, vaginal area, and back, and touching her under
her clothing. He also “put his hand inside” of her vaginal area.
Around 1 a.m., C.O. got up to the use the bathroom in the basement and observed that
O’Connor was not in bed. She noticed that E.O. was still sleeping on the couch in the basement.
She checked to see if O’Connor had gone outside to smoke, but noticed the outside door was still
locked. C.O. heard the wood floor creak upstairs and checked whether O’Connor was asleep on
one of the living room couches, but he was not. She then decided to see if he had gone to E.O.’s
bedroom, which was located next to the upstairs bathroom. C.O. turned on the bathroom light and
saw that E.O.’s room “was dark,” but she observed O’Connor walk from B.K.’s bedside toward
the wall behind the partially open door of B.K’s room. C.O. observed that O’Connor had an
erection. B.K. confirmed in her testimony that when the upstairs bathroom light came on,
O’Connor got up and went behind her door. She did not notice anything about his appearance at
that time. B.K. testified that when O’Connor got up she straightened her clothing and pulled up
her blanket.
C.O. approached the doorway of B.K.’s bedroom and observed that O’Connor was
standing in the corner behind the door facing the wall. C.O. asked O’Connor several times what
he was doing. O’Connor told her he was not doing anything and that he was just checking on the
kids. According to C.O., it would not be normal for O’Connor to check on B.K. in the night and
that there was no special reason at that time that she needed to be checked on. After O’Connor left
the room and went outside the house, C.O. asked B.K. what happened. B.K. told her that O’Connor
had just been sitting on her bed. C.O. then went outside, found O’Connor sitting on the front porch
smoking, and again asked him what he had been doing in B.K.’s bedroom. According to C.O.,
O’Connor “just said, nothing, I wasn’t doing anything.” He did not look at C.O. when he spoke
to her.
Around 5 a.m., C.O. went upstairs to see whether B.K. was awake. Since B.K. still wanted
to go to her detasseling job, C.O. drove her to catch the detasseling bus. During the short drive,
C.O. asked B.K. “how long this had been going on,” but B.K. did not answer. When C.O. asked
whether it had been going on for “three months” and then for “six months,” B.K. shook her head
yes to both inquiries. C.O. then asked whether it had been going on for more than 6 months, and
B.K. again shook her head yes. C.O. also asked if O’Connor had touched B.K., and B.K. “just
pointed down.” B.K. did not say anything about what had happened, and C.O. stopped asking
questions because she “couldn’t handle it.” B.K. recalled providing more detail to C.O.’s questions
at this point and testified that she told C.O. that O’Connor had been touching her breasts, crotch,
back, and stomach. She did not remember pointing down to where he touched her. B.K. also
recalled telling C.O. that she was “scared of what would happen” and that it had been going on for
a while.
After speaking with a friend and her pastor, on the afternoon of July 27, 2014, C.O. took
B.K. to the sheriff’s office to report the matter, where they met with Deputy Justin Thorman. When
Thorman asked B.K. to tell him what had happened, B.K. became distraught, and Thorman decided
not to ask her any more questions at that time. C.O. then briefly explained to Thorman what she
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knew of the incident and provided some general background information. Thorman contacted
Investigator Harly Amy, who called the Family Advocacy Network (FAN) to arrange an interview
for B.K.
That same afternoon, B.K. met with a forensic interviewer at FAN. During the interview,
which lasted for about an hour, B.K. stated O’Connor had touched her “crotch area” with his
tongue and his fingers but did not state that he had penetrated her vagina. The interviewer testified
that a medical examination of B.K. was not performed because she did not disclose penetration.
After the FAN interview, Amy, Thorman, and another deputy contacted O’Connor at his residence.
When Amy advised O’Connor that he was under arrest for the sexual assault of B.K., O’Connor
appeared “like he had just been punched in the stomach,” started breathing heavily, staggered a
little bit, became pale, told Amy he felt like he was going to faint, asked for a drink of water, and
sweated profusely on his forehead. O’Connor was arrested and transported to the county jail. At
the jail, Amy asked O’Connor if he was ready to tell “his side of the story.” Initially, O’Connor
did not respond. When Amy asked him again, O’Connor “just shook his head” and stated “there
is nothing for me to say.” At some point, Amy returned to O’Connor’s residence to take
photographs and search for the presence of semen and other bodily fluids. Nothing of evidentiary
value was found.
C.O. testified that she had not previously planned or made any arrangements to divorce
O’Connor but that she filed for divorce on Monday, July 28, 2014. She testified that before going
to the county fair on July 26, she and O’Connor discussed withdrawing $800 from the bank, and
that they stopped at the bank, so she could do so. According to C.O., $300 was to be spent on
activities that weekend and $500 saved for the mortgage payment the following week. C.O.
testified that the $800 was not taken out of the bank in preparation for the divorce proceedings.
We have set forth further details of O’Connor’s cross-examination of C.O. with respect to the
money and statements she made in an affidavit filed in the divorce proceeding in the analysis
section below.
B.K testified at trial that O’Connor began assaulting her when she was 12 years old and
continued to do so periodically until July 27, 2014. O’Connor sometimes placed his hands beneath
her clothing and touched her breasts, stomach, vaginal area, and back, and sometimes he also
inserted his finger or his tongue inside her vagina. The assaults occurred both when C.O. was at
home and at work and typically occurred in B.K.’s bedroom, on a couch in the living room, or on
a couch in the basement. When asked why she had not told the FAN interviewer that O’Connor
had placed his finger inside her vagina, B.K. testified that she had been scared to talk to the
interviewer about it. B.K. testified that she has experienced memory problems and has had
difficulty remembering everything that happened with O’Connor. She has also experienced
anxiety, depression, nightmares, and flashbacks. B.K. testified that she had been receiving
counseling to help with these issues.
B.K.’s therapist testified that B.K’s symptoms, including dysphoric mood, tiredness,
nightmares, trauma triggers, irritability, anxiety, and depression, are consistent with PTSD, which
can be caused by various types of trauma, including sexual trauma. We have set forth further details
of the therapist’s testimony in the analysis section below.
O’Connor testified in his own defense. He denied any sexual contact with B.K. and
suggested she was lying to get more attention from C.O. According to O’Connor, on the night in
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question, he got up to smoke but went upstairs because he heard a noise. He testified that he
assumed the noise was probably B.K., so he went to check on her and had just stepped into her
room when the upstairs bathroom light was turned on. O’Connor “figured it was [E.O.] getting up
because he tends to get up in the middle of the night.” O’Connor testified that he stood behind the
door because he “just figured [E.O.] would go back to sleep.” O’Connor explained further that he
did not want to deal with E.O. when he had been drinking.
During the jury instruction conference in this case, O’Connor did not object to jury
instruction No. 4, which defined “[p]enetration” and “[s]exual contact” for the jury. Nor did he
object to any of the prosecutor’s remarks during the parties’ opening statements and closing
arguments.
The jury found O’Connor guilty on both counts. The district court accepted the jury’s
verdicts, found O’Connor guilty of the offenses charged, and ordered a presentence investigation.
3. SENTENCING AND MOTION FOR NEW TRIAL
On April 23, 2015, O’Connor filed a motion for new trial. His motion was based, in part,
upon alleged prosecutorial misconduct during closing argument as well as restrictions in his
cross-examination of B.K.’s therapist and attempt to offer certain evidence against C.O.
On June 15, 2015, a sentencing hearing was held before the first judge. O’Connor objected
to being sentenced by the first judge since he had not presided over the trial proceedings. The first
judge implicitly overruled the objection and sentenced O’Connor to 20 to 35 years’ imprisonment
(with a mandatory minimum of 15 years) on count I and to a concurrent sentence of 3 to 5 years’
imprisonment on count II.
Immediately following the sentencing hearing, the first judge held a hearing on O’Connor’s
motion for new trial. After hearing argument from the parties, the first judge set a briefing schedule
and took the matter under advisement. On June 25, 2015, the first judge entered an order, declining
to rule on the motion for new trial and scheduling the matter for rehearing before the second judge,
as it “appear[ed] that the resolution of that motion would be better done by the trial judge”. That
rehearing was held on June 29. On July 10, the second judge entered an order denying the motion.
The second judge’s order shows that O’Connor appeared at the June 29 hearing with his trial
counsel. With respect to the alleged prosecutorial misconduct, the second judge specifically found
that O’Connor had failed to object to the prosecutor’s remarks and further found that the remarks
did not amount to plain error.
III. ASSIGNMENTS OF ERROR
O’Connor asserts, reordered and restated, that the district court erred in (1) making certain
rulings with respect to the therapist’s testimony, (2) excluding certain evidence with respect to
C.O.’s testimony, (3) using incorrect definitions in jury instruction No. 4, (4) failing to grant his
motion for new trial, and (5) imposing an excessive sentence. He also asserts that the evidence was
insufficient to sustain his conviction on both counts of the information, that it was error for
sentence to be pronounced and the motion for new trial to be determined by judges who had not
heard the evidence presented at trial and the new trial hearing, respectively, and that he received
ineffective assistance of trial counsel in various regards.
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IV. STANDARD OF REVIEW
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. Ballew, 291 Neb. 577, 867 N.W.2d
571 (2015).
The scope of cross-examination of a witness rests largely in the discretion of the trial court,
and its ruling will be upheld on appeal unless there is an abuse of discretion. State v. Stricklin, 290
Neb. 542, 861 N.W.2d 367 (2015). A judicial abuse of discretion means that the reasons or rulings
of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right, and
denying a just result in matters submitted for disposition. State v. Johnson, 290 Neb. 369, 859
N.W.2d 877 (2015).
Failure to object to a jury instruction after it has been submitted to counsel for review
precludes raising an objection on appeal absent plain error indicative of a probable miscarriage of
justice. State v. Erpelding, 292 Neb. 351, ___ N.W.2d ___ (2015). Plain error may be found on
appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. Id.
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. State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (2015).
The relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Id.
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. Ballew, supra.
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
Claims of ineffective assistance of counsel raised for the first time on direct appeal do not
require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately
review the question. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015). Whether a claim of
ineffective assistance of trial counsel may be determined on direct appeal is a question of law.
State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015). In reviewing claims of ineffective assistance
of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed
facts contained within the record sufficient to conclusively determine whether counsel did or did
not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s
alleged deficient performance? Id.
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V. ANALYSIS
1. THERAPIST’S TESTIMONY
(a) Testimony About PTSD and B.K.’s Credibility
O’Connor asserts that the district court erred by allowing the State to present testimony
about PTSD after sustaining his motion in limine to exclude it. We first note, as does the State,
that the court’s order granting O’Connor’s motion in limine did not prohibit the therapist from
testifying about PTSD in general or about B.K.’s PTSD. Rather, it only prohibited the therapist
from testifying “to any diagnosis of B.K. for PTSD or similar disorder caused by sexual abuse or
caused by sexual abuse [by O’Connor] or any opinion regarding the credibility of B.K.” (Emphasis
supplied). While the therapist testified about the causes of PTSD generally and about the symptoms
of PTSD suffered by B.K., she did not testify that B.K.’s PTSD was caused by sexual abuse or that
B.K. was sexually abused by O’Connor.
Further, O’Connor’s trial counsel did not object to the therapist’s testimony. Where there
has been a pretrial ruling regarding the admissibility of evidence, a party must make a timely and
specific objection to the evidence when it is offered at trial in order to preserve any error for
appellate review; thus, when a motion in limine to exclude evidence is overruled, the movant must
object when the particular evidence which was sought to be excluded by the motion is offered
during trial to preserve error for appeal. State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014).
O’Connor argues that his trial counsel was ineffective for failing to object. In order to show
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), a defendant must show, first, that counsel was deficient and, second, that
the deficient performance actually caused prejudice to the defendant’s case. State v. Cullen, supra.
The two prongs of the ineffective assistance of counsel test under Strickland v. Washington, supra,
may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a
strong presumption that counsel’s actions were reasonable. State v. Cullen, supra. Prejudice caused
by counsel’s deficiency is shown when there is a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have been different. Id. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id. An ineffective
assistance of counsel claim made on direct appeal can be found to be without merit if the record
establishes that trial counsel’s performance was not deficient or that the appellant could not
establish prejudice. State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
As noted above, the therapist testified generally about victims of sexual abuse and the
symptoms of PTSD. She did not testify that B.K.’s PTSD was caused by sexual abuse or that
O’Connor had sexually abused B.K. Nor did she comment on B.K.’s credibility. The nature of the
testimony and purpose for which it was given was permissible under Nebraska law. In Nebraska,
an expert may testify about sexual abuse in generalities, without being familiar with the alleged
victim, because few jurors have sufficient familiarity with child sexual abuse to understand the
dynamics of a sexually abusive relationship, and the behavior exhibited by sexually abused
children is often contrary to what most adults would expect. State v. Roenfeldt, 241 Neb. 30, 486
N.W.2d 197 (1992). However, in a prosecution for sexual assault of a child, an expert witness may
not give testimony which directly or indirectly expresses an opinion that the child is believable,
that the child is credible, or that the witness’ account has been “validated.” State v. Doan, 1 Neb.
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App. 484, 484, 498 N.W.2d 804, 805 (1993). See, also, State v. Muhannad, 286 Neb. 567, 837
N.W.2d 792 (2013) (discussing Nebraska cases defining line between permissible indirect
bolstering of alleged victim’s credibility and impermissible direct or indirect bolstering of alleged
victim’s credibility). The therapist did not give such testimony in the present case. O’Connor’s
trial counsel was not ineffective for failing to object to the therapist’s testimony with respect to
PTSD.
(b) Limitation of Cross-Examination
O’Connor argues that the district court erred by limiting his cross-examination of the
therapist with respect to the paranormal investigation referenced in an offer of proof he made at
trial. O’Connor sought to cross-examine the therapist about the paranormal investigation
referenced in the State’s motion in limine. The court sustained the State’s objection, finding that
O’Connor had failed to establish any nexus between the proposed testimony and the witness’
abilities as a therapist. O’Connor then made an offer of proof, which consisted of a brief excerpt
from the therapist’s pretrial deposition.
O’Connor did not specifically assign this limitation of his cross-examination of the
therapist as error. An alleged error must be both specifically assigned and specifically argued in
the brief of the party asserting the error to be considered by an appellate court. State v. Cook, 290
Neb. 381, 860 N.W.2d 408 (2015). Accordingly, we decline to address his arguments further.
2. C.O.’S TESTIMONY
O’Connor argues that his Sixth Amendment right of confrontation was violated when the
district court improperly limited his cross-examination of C.O. and excluded certain exhibits. He
argues that the exclusion of this evidence “prevented the jury from properly taking financial
motives for a false claim into account.” Brief for appellant at 22.
At trial, O’Connor cross-examined C.O. about their pending divorce. C.O. agreed she had
filed for divorce on July 28, 2014, the day after she discovered the abuse. O’Connor attempted to
offer the divorce petition into evidence, but the State objected on relevance grounds and argued
that the document was cumulative. The district court sustained the objection.
O’Connor then questioned C.O. about an affidavit she executed on August 11, 2014, for
the purpose of obtaining temporary orders in the divorce proceedings, and began by reading a
paragraph from the affidavit concerning actions C.O. had taken with respect to a joint checking
account. When the State objected on relevance grounds, the district court dismissed the jury and
discussed the admissibility of the affidavit and other divorce-related documents with the parties.
O’Connor argued that certain statements in C.O.’s affidavit were inconsistent with trial testimony
she gave concerning his child care responsibilities and their bank account. The State argued that
there were no inconsistencies and that O’Connor was engaging in improper impeachment. The
district reviewed the affidavit, and after hearing further argument stated:
. . . I believe [O’Connor has] the right to cross-examine her about specific
inconsistent statements about the document if they are relative to the issue before the finder
of fact separate and apart from whether or not it’s collateral impeachment to offer the
exhibit. We will go forward.
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I will allow [O’Connor] to cross-examine her about specific statements in the
exhibit which is different than I think my previous ruling, subject to any objection by the
State and any relevance with that.
O’Connor then questioned C.O. about the $800 she withdrew from their bank account on
July 26, 2014, and about the statement in her affidavit concerning O’Connor’s child care
responsibilities. When he again attempted to question her about the statement in her affidavit
concerning their bank account, the district court noted it had previously sustained the State’s
relevancy objection. O’Connor subsequently made an offer of proof regarding the statement in the
affidavit and argued that it “ha[d] a bearing on [C.O.’s] credibility with motive being that the
sexual assault is fabricated or exaggerated to gain advantage in the divorce case.” The State
renewed its relevancy objection and further noted the statement in the affidavit concerned events
that happened after C.O. had already filed for divorce. In response, O’Connor’s counsel again
argued the statement was relevant to impeach C.O.’s credibility and to establish motive. The court
sustained the State’s objection, stating:
I believe that under State v. Watkins found at 227 Neb. 677 and State v. Tainter
found at 218 Neb. 855, the evidence being offered is collateral impeachment, and I am
going to renew my ruling and sustain the objection as to relevance because of collateral
impeachment, further because testimony on the face of the statements and foundation
established during the testimony would indicate that it actually goes to matters after the
date. I believe the evidence as presented will establish [O’Connor’s] view of motive in this
matter. I am going to continue to sustain the objection as to the motion. The offer of proof
is overruled.
The right of cross-examination is an essential and fundamental requirement of a fair trial.
State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007). A ruling on evidence of a collateral matter
that is intended to affect the credibility of a witness comes within the discretion of a trial court. Id.
When the object of the cross-examination is to collaterally ascertain the accuracy or credibility of
the witness, some latitude should be permitted, and the scope of such latitude is ordinarily subject
to the discretion of the trial judge, and, unless abused, its exercise is not reversible error. Id.
O’Connor was allowed to cross-examine C.O. about the money she withdrew from the
bank on July 26, 2014, the date she filed for divorce, and the statements in her affidavit that he
believed contradicted her testimony on direct examination about his child care responsibilities.
These are collateral matters which O’Connor asserted affected C.O.’s credibility and motivation
with respect to the abuse allegations. O’Connor was not allowed to cross-examine C.O. with
respect to the status of their bank account in August 2014, which statements concerned events after
he had been arrested and after C.O. filed for divorce. He has not shown how admission of this
evidence was relevant to C.O.’s credibility as it concerned her motivation for reporting the alleged
abuse. Under Neb. Rev. Stat. § 27-401 (Reissue 2008), relevant evidence means evidence having
any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence. State v. Johnson, 290
Neb. 862, 862 N.W.2d 757 (2015). The district court did not abuse its discretion in excluding this
evidence. This assignment of error is without merit.
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3. JURY INSTRUCTION NO. 4
O’Connor asserts that the district court erred in using incorrect definitions in jury
instruction No. 4. Because O’Connor failed to object to the instruction, our review is limited to
plain error. See State v. Erpelding, 292 Neb. 351, ___ N.W.2d ___ (2015). He also argues that his
trial counsel was ineffective for failing to object to the instruction.
(a) “Sexual Penetration”
O’Connor argues that jury instruction No. 4 was wrong because it defined “penetration”
without defining “sexual penetration” and without tracking the language of Neb. Rev. Stat.
§ 28-318(6) (Cum. Supp. 2014).
Jury instruction No. 4 provides:
Penetration is (1) any intrusion, however slight, into the genital or anal openings of
a victim by any part of a defendant’s body or any object used by him; (2) any contact,
however slight, between the defendant’s sex organ and the victim’s mouth or tongue or
between the victim’s sex organ and the defendant’s mouth or tongue; and (3) any intrusion,
however slight, of the victim’s sex organ into the genital opening of the defendant. Sexual
penetration does not require emission of semen.
Section 28-318(6) provides:
Sexual penetration means 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. Sexual penetration shall not require emission of semen.
If there is an applicable instruction in the Nebraska Jury Instructions, the court should
usually give this instruction to the jury in a criminal case. State v. Lavalleur, 289 Neb. 102, 853
N.W.2d 2037 (2014). As a general rule, in giving instructions to the jury, it is proper for the court
to describe the offense in the language of the statute. State v. Erpelding, supra. The law does not
require that a jury instruction track the exact language of the statute. Id.
The definition of penetration given by the district court corresponds exactly to the
definition found in the Nebraska Jury Instructions, except for the addition of the last sentence
which was taken from § 28-318(6). See NJI2d Crim. 4.6. The comment to NJI2d Crim. 4.6 states
that the pattern jury instruction “covers all the activity statutorily defined as penetration but
without using the statutory terms,” which were avoided either because of repetitiousness or
potential unfamiliarity to jurors. The comment also notes that the statutory definition contains an
express statement that penetration does not require the emission of semen, but states that since the
pattern instruction defines penetration “to include intrusion by any part of the body or by an
object,” such an express statement is not needed in the definition given to the jury. However, we
find that the inclusion of this additional language from the statute does not render the definition
incorrect and in no way harmed O’Connor. O’Connor has not shown that providing the jury with
a definition of “penetration” as opposed to “sexual penetration” prejudicially affected a substantial
right of his. We find no plain error in the definition given.
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(b) “Sexual Contact”
In jury instruction No. 4, the district court defined “sexual contact” as follows:
Sexual contact means the intentional touching of the victim’s sexual or intimate
parts or the intentional touching of the victim’s clothing covering the immediate area of
the victim’s sexual or intimate parts. Sexual contact shall also mean the touching by the
victim of the actor’s sexual or intimate parts or the clothing covering the immediate area
of the actor’s sexual or intimate parts when such touching is intentionally caused by the
actor. Sexual contact includes only such conduct which can be reasonably construed as
being for the purpose of sexual arousal or gratification of either party. Sexual contact shall
also include the touching of a child with the actor’s sexual or intimate parts on any part of
the child’s body.
The definition of “sexual contact” given by the court is identical in all material respects to the
definition found in § 28-318(5), which only adds the phrase “for purposes of sexual assault of a
child under sections 28-319.01 and 28-320.01” to the last sentence. Contrary to O’Connor’s
assertions, the definition given by the court did not eliminate the requirement that the touching be
“for the purpose of sexual arousal or gratification of either party.” The instruction given only
eliminated the citations to the statutes under which O’Connor was charged, and the elements of
the crimes charged as contained in those statutes were fully set forth in jury instruction No. 3. As
noted above, the law does not require that a jury instruction track the exact language of the statute.
State v. Erpelding, supra. We find no plain error.
(c) Ineffective Assistance of Counsel
Finally, we address O’Connor’s assertion that his trial counsel was ineffective for failing
to object to jury instruction No. 4. Defense counsel is not ineffective for failing to raise an
argument that has no merit or for failing to object to jury instructions that, when read together and
taken as a whole, correctly state the law and are not misleading. State v. Erpelding, supra. Because
jury instruction No. 4, when read together and taken as a whole with the other jury instructions
given, correctly states the law and is not misleading, his counsel could not have been ineffective
for failing to object to it. This argument is without merit.
4. SUFFICIENCY OF EVIDENCE
(a) First Degree Sexual Assault of Child
The State charged O’Connor with first degree sexual assault of a child in violation of
§ 28-319.01(1)(b). A person commits this offense 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.” § 28-319.01(1)(b). For the sake of brevity, we do not repeat the
statutory definition of “sexual penetration” already set forth above. See § 28-318(6).
The evidence at trial showed that O’Connor inserted his tongue and finger into B.K’s
vagina on multiple occasions between December 2012 and June 2014, when B.K. was 12 and 13
years old and O’Connor was older than 25. O’Connor again argues that “penetration” was
improperly defined for the jury, an argument we have already found to be without merit. He
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essentially asks us to reweigh the evidence on this count, which we do not do. See State v.
Samayoa, 292 Neb. 334, 873 N.W.2d 449 (2015). When the evidence is viewed in the light most
favorable to the State, the evidence was sufficient to convict O’Connor on this count.
(b) Third Degree Sexual Assault of Child
The State charged O’Connor with third degree sexual assault of a child in violation of
§ 28-320.01(1). A person commits this offense “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.”
§ 28-320.01(1). We do not repeat the definition of “sexual contact” previously set forth above
except to note that it involves the intentional touching of “intimate parts.” See § 28-318.5.
“Intimate parts means the genital area, groin, inner thighs, buttocks, or breasts.” § 28-318(2). The
evidence at trial shows that on July 27, 2014, when O’Connor was more than 19 years old and
B.K. was 14, O’Connor entered B.K.’s bedroom, pushed up her shirt, pulled down her pants, and
fondled her breasts and vaginal area. The evidence also showed that he had an erection. Again, we
do not reweigh the evidence and have already found that the district court properly defined “sexual
contact” for the jury. When the evidence is viewed in the light most favorable to the State, the
evidence was sufficient to convict O’Connor on this count.
5. MOTION FOR NEW TRIAL
(a) Prosecutorial Misconduct
O’Connor asserts that the district court erred in failing to grant his motion for new trial
based upon alleged prosecutorial misconduct. He notes comments of the prosecutor in both the
opening statement and closing argument. During the opening statement, the prosecutor described
what Amy would testify to in connection with O’Connor’s arrest. In addition to stating that Amy
would testify about O’Connor’s physical reaction to the news of his arrest, the prosecutor also
stated, “[Amy] will tell you that [O’Connor] denied the accusation, but only made the statement,
there is nothing that I can say.” During closing arguments, the prosecutor stated:
Then there is [O’Connor’s] chance to tell his side of the story. He didn’t tell law
enforcement. He didn’t go to FAN. He didn’t have a deposition. The first time he told you
what happened was here in this courtroom today. He had the advantage of hearing what
everybody else said.
At the time he was asked, there is nothing for me to say. He had a very physical
meltdown. . . .
Is that reasonable? Would you have tried to do something at that point? If you didn’t
do anything, would you have said, I didn’t do it, I didn’t touch her, can you look into this,
it’s got to be my wife, she wants to get a divorce? He never said that.
[O’Connor] wasn’t surprised about why they were there. Once they told him, he
knew. He knew he had been caught. That’s why he had a meltdown. . . .
O’Connor’s trial counsel did not object to any of these comments. It is not an abuse of
discretion to overrule a motion for new trial that is based on errors alleged to have occurred during
trial, but to which no timely objection was made. Smith v. Colorado Organ Recovery Sys., Inc.,
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269 Neb. 578, 694 N.W.2d 610 (2005). The district court did not err in denying O’Connor’s
motion.
O’Connor also asserts, however, that his trial counsel was ineffective for failing to object
to the prosecutor’s misconduct in commenting during closing arguments on his silence and refusal
to speak to law enforcement.
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. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015). 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 remarks had a
prejudicial effect on the defendant’s right to a fair trial. Id. 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.
The Nebraska Supreme Court has stated:
In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), the [U.S.
Supreme] Court held that a state may not impeach a defendant’s exculpatory testimony,
given for the first time at trial, by cross-examining the defendant about his failure to have
told the story after receiving Miranda warnings at the time of his arrest. The Court held
that because Miranda implicitly assures that silence will carry no penalty, it is
‘fundamentally unfair and a deprivation of due process to allow the arrested person’s
silence to be used to impeach an explanation subsequently offered at trial.’ 426 U.S. at 618,
96 S. Ct. 2240. [The Nebraska Supreme Court] adopted the prohibition in Doyle against
the use of a defendant’s silence during the postarrest, post-Miranda time period in State v.
Lofquest, 227 Neb. 567, 418 N.W.2d 595 (1988). In that case, however, [the court] noted
that the Supreme Court limited the Doyle rule in Fletcher v. Weir, 455 U.S. 603, 102 S. Ct.
1309, 71 L. Ed. 2d 490 (1982), by holding that a prosecutor’s references to postarrest,
pre-Miranda silence do not necessarily violate a defendant’s due process rights.
State v. Nesbitt, 264 Neb. 612, 638, 650 N.W.2d 766, 788-89 (2002). See State v. Lopez, 274 Neb.
756, 743 N.W.2d 351 (2008) (explicitly extending the protection of Doyle to prosecutor’s
comments on defendant’s silence made in closing argument).
The record in this case does not reflect when O’Connor received Miranda warnings. It
presents a similar situation to that in State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011), where the
record was not clear as to when the defendant was advised of his Miranda rights. The court in Huff
found the situation analogous to Fletcher v. Weir, supra, where the Court “treated the defendant’s
silence as pre-Miranda where the record did not indicate that he had received any Miranda
warnings after his arrest” and held “that a silent record was fatal to the defendant’s Doyle claim.”
282 Neb. at 112. See, also, State v. Mitchell, 23 Neb. Ct. App. 657, ___ N.W.2d ___ (2016) (treating
defendant’s silence as occurring pre-Miranda where record did not reflect when defendant
received Miranda warnings). Similarly, in this case, the record does not reflect when O’Connor
was given Miranda warnings, so we have treated his silence as having occurred pre-Miranda.
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In State v. Mitchell, supra, this court recently addressed the question of whether a
defendant’s post-arrest but pre-Miranda silence can be used as substantive evidence of guilt. In
that case, the defendant made certain statements to a police officer while being transported to jail
after his arrest. The defendant sought a mistrial based on the prosecutor’s comment in closing
argument that the defendant never denied being intoxicated. As noted above, the record did not
reflect when the defendant received Miranda warnings, so this court treated the defendant’s silence
as pre-Miranda. We observed that the Nebraska Supreme Court has made it clear that “the giving
of Miranda--not the fact of being under arrest--is the key inquiry in determining when the State
can utilize a defendant’s silence.” 23 Neb. Ct. App. at 670, ___ N.W.2d at ___.
In Mitchell, we also relied upon United States v. Frazier, 408 F.3d 1102 (8th Cir. 2005), in
which the government used the defendant’s post-arrest, pre-Miranda silence as substantive
evidence of guilt in its case-in-chief. The Eighth Circuit stated that “[a]lthough [the defendant]
was under arrest, there was no governmental action at that point inducing his silence. Thus he was
under no government-imposed compulsion to speak.” 408 F.3d at 1111. Accordingly, the Frazier
court found that use of the defendant’s silence as substantive evidence of his guilt did not violate
his Fifth Amendment rights. In Mitchell, this court agreed with the reasoning of the Eighth Circuit
and found, based on the presumption that the defendant’s silence was pre-Miranda, found that the
prosecutor’s comment using the defendant’s silence as evidence of guilt was not improper.
In this case, we presume O’Connor had not yet been given the Miranda warnings at the
time of his comments. See State v. Huff, supra; State v. Mitchell, supra. Because his silence
occurred pre-Miranda, the prosecutor’s comments using his silence as evidence of guilt were not
improper. Accordingly, O’Connor’s trial counsel was not ineffective for failing to object to the
prosecutor’s comments during closing arguments on his silence and refusal to speak to law
enforcement. This argument is without merit.
(b) Decision by Second Judge
O’Connor assigns error to the fact that the second judge ruled on his motion for new trial.
Specifically, he argues that he was denied his Sixth Amendment right to counsel because no
hearing was held before the second judge and that he was neither present nor represented by
counsel before the judge who made the decision. Contrary to O’Connor’s assertions, the second
judge’s July 2015 order denying O’Connor’s motion for new trial states that a hearing was held
on July 29, that O’Connor was present with his attorney, and that evidence and argument were
presented by the parties. This assignment of error is without merit.
6. SENTENCING ERRORS
(a) Sentencing by First Judge
O’Connor argues that error in sentencing occurred because he was sentenced by the first
judge, who did not preside over the jury trial. He argues that due to “the unjustified involvement
of two different judges,” his sentences were excessive and uninformed. Brief for appellant at 31.
In support of his argument that the sentences imposed were “uninformed,” he notes that at the
sentencing hearing, the first judge stated, “Mr. O’Connor, you’re not in an enviable situation. And
with the assumption which the Court has to make given the verdict of the jury, you’re not entitled
to be in an enviable situation.” We do not read this statement as an indication that the first judge
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was uninformed, but rather, as an acknowledgement of the serious nature of the convictions. The
first judge handled all of the pretrial motions in the case, had received the presentence report, and
heard the parties’ arguments. And, as addressed below, the sentences imposed were not excessive.
Finally, Neb. Const. art. V, § 12 states, “The judges of the district court may hold court for each
other and shall do so when required by law or when ordered by the Supreme Court. . . .” This
assignment of error is without merit.
O’Connor also asserts that he received ineffective assistance of counsel in connection with
being sentenced by a judge other than the trial judge, but he does not argue this point further. We
note that his trial counsel did, in fact, object to O’Connor being sentenced before a judge other
than one who heard the trial. Again, as discussed further below, the sentences imposed were not
excessive. O’Connor has not shown that his trial counsel was ineffective or that he was prejudiced.
This argument is without merit.
(b) Excessive Sentences
O’Connor was convicted of the charge of first degree sexual assault of a child, a Class IB
felony. See § 28-319.01(2). A Class IB felony is punishable by a maximum of life imprisonment
and a minimum of 20 years’ imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014). First
degree sexual assault of a child also carries a mandatory minimum sentence of 15 years’
imprisonment for the first offense. § 28-319.01(2). On this count, O’Connor was sentenced to
imprisonment for 20 years, 15 years of which are mandatory, to 35 years. O’Connor was also
convicted of third degree sexual assault of a child, a Class IIIA felony. See § 28-320.01. A
Class IIIA felony is punishable by a maximum sentence of 5 years’ imprisonment, a $10,000 fine,
or both. § 28-105. On this count, O’Connor was sentenced to a concurrent term of imprisonment
for 3 to 5 years. He acknowledges that the sentences imposed are within the statutory guidelines,
but he asserts the district court abused its discretion by imposing an excessive sentence.
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.
Erpelding, 292 Neb. 351, ___ N.W.2d ___ (2015).
There is nothing in the record to suggest that the district court failed to apply these factors
in sentencing O’Connor. All of the pertinent information was in the PSI which was received by
the court. At the time of sentencing, O’Connor was 36 years old. He completed the 11th grade in
high school, and at the time of presentence investigation had been employed by the same company
as a salesperson since 2008. Contrary to O’Connor’s assertion, he does have a criminal history,
which includes convictions for criminal mischief, disturbing the peace, and three convictions for
driving under the influence of alcohol. He does not have any prior sex-related offenses. O’Connor
completed a Simple Screening Instrument and scored in the low risk range for having a substance
abuse problem, although he was in the high risk range on the Standardized Risk Assessment
Reporting Form. On the Vermont Assessment of Sex Offender Risk, O’Connor scored in the low
risk range to reoffend. On the overall Level of Service/Case Management Inventory evaluation,
O’Connor scored in the medium low risk category. During the sex offender evaluation of
O’Connor, he was very defensive, and has continued to deny the offenses. The evaluator noted
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that O’Connor has a history of minimizing his behaviors while blaming others and further noted
his failure to acknowledge any wrongdoing was a barrier to treatment. O’Connor was very
defensive throughout the evaluation process, undermining the reliability of his test scores. The
evaluator rated O’Connor as a low to moderate risk range for sexual reoffense. Nevertheless,
O’Connor sexually assaulted B.K. on multiple occasions over an extended period, which has had
a significant and devastating impact on B.K. and her family. Considering all of the factors, the
district court did not impose excessive sentences or abuse its discretion in sentencing O’Connor.
VI. CONCLUSION
The State did not present testimony about PTSD that was in violation of O’Connor’s
motion in limine. The district court did not abuse its discretion in limiting the scope of O’Connor’s
cross-examination of C.O. and excluding evidence that was not relevant to her motivation for
reporting the alleged abuse. We find no plain error in the definitions found in jury instruction
No. 4. The evidence was sufficient to support O’Connor’s convictions. The court did not impose
excessive sentences or abuse its discretion in sentencing O’Connor or in ruling on his motion for
new trial. O’Connor’s ineffective assistance of counsel claims are without merit.
AFFIRMED.
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