State v. Edwards , 28 Neb. Ct. App. 893 ( 2020 )

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09/29/2020 08:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
State of Nebraska, appellee, v. Robert E.
Edwards, Sr., appellant.
___ N.W.2d___
Filed September 29, 2020. No. A-19-383.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
2. Rules of Evidence: Appeal and Error. 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.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination whether the
court admitted evidence over a hearsay objection or excluded evidence
on hearsay grounds.
5. Constitutional Law: Motions to Suppress: Confessions: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a state-
ment based on its claimed involuntariness, including claims that law
enforcement procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. Whether those facts meet con-
stitutional standards, however, is a question of law, which an appellate
court reviews independently of the trial court’s determination.
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STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
6. Convictions: Evidence: Appeal and Error. 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 the evidence, pass
on the credibility of the witnesses, or reweigh the evidence; such matters
are for the finder of fact.
7. Criminal Law: Evidence: Appeal and Error. When examining a suffi-
ciency of the evidence claim, 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 ele-
ments of the crime beyond a reasonable doubt.
8. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
9. Trial: Evidence: Appeal and Error. Because overruling a motion in
limine is not a final ruling on admissibility of evidence and, therefore,
does not present a question for appellate review, a question concerning
admissibility of evidence which is the subject of a motion in limine is
raised and preserved for appellate review by an appropriate objection to
the evidence during trial.
10. Trial: Appeal and Error. On appeal, a defendant may not assert a dif-
ferent ground for his or her objection than was offered at trial.
11. Trial: Waiver: Appeal and Error. Failure to make a timely objection
waives the right to assert prejudicial error on appeal.
12. Appeal and Error. An appellate court is not obligated to engage in
analysis that is not necessary to adjudicate the case and controversy
before it.
13. ____. It is not the function of an appellate court to scour the record
looking for unidentified evidentiary errors.
14. Rules of Evidence: Hearsay. When an out-of-court statement relates
the content of another out-of-court statement, there must be an indepen-
dent hearsay exception for each statement.
15. ____: ____. Neb. Rev. Stat. § 27-803(3) (Reissue 2016) is based on
the notion that a person seeking medical attention will give a truthful
account of the history and current status of his or her condition in order
to ensure proper treatment.
16. Rules of Evidence: Hearsay: Sexual Assault: Minors. Statements
made by a child victim of sexual abuse to a forensic interviewer in
the chain of medical care may be admissible under Neb. Rev. Stat.
§ 27-803(3) (Reissue 2016) even though the interview has the partial
purpose of assisting law enforcement’s investigation of the crimes.
17. Rules of Evidence: Hearsay: Police Officers and Sheriffs. The fun-
damental inquiry to determine whether statements, made by a declarant
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STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
who knew law enforcement was listening, had a medical purpose is
if the challenged statement has some value in diagnosis or treatment,
because the patient would still have the requisite motive for providing
the type of sincere and reliable information that is important to that
diagnosis and treatment.
18. Rules of Evidence: Hearsay: Proof. Statements having a dual medi-
cal and investigatory purpose are admissible under Neb. Rev. Stat.
§ 27-803(3) (Reissue 2016) only if the proponent of the statements dem-
onstrates that (1) the declarant’s purpose in making the statements was
to assist in the provision of medical diagnosis or treatment and (2) the
statements were of a nature reasonably pertinent to medical diagnosis or
treatment by a medical professional.
19. Rules of Evidence: Hearsay: Intent. Under Neb. Rev. Stat. § 27-803(3)
(Reissue 2016), the fundamental inquiry when considering a declarant’s
intent is whether the statement was made in legitimate and reasonable
contemplation of medical diagnosis or treatment.
20. ____: ____: ____. Under Neb. Rev. Stat. § 27-803(3) (Reissue 2016),
the appropriate state of mind of the declarant may be reasonably
inferred from the circumstances; such a determination is necessarily
fact specific.
21. Rules of Evidence: Hearsay. For a statement to qualify as an excited
utterance, the following criteria must be established: (1) There must
have been a startling event, (2) the statement must relate to the event,
and (3) the statement must have been made by the declarant under the
stress of the event.
22. Rules of Evidence: Hearsay: Proof. The key requirement to the excited
utterance exception is spontaneity, which requires a showing that the
statements were made without time for conscious reflection.
23. Rules of Evidence: Hearsay. An excited utterance does not have to be
contemporaneous with the exciting event. It may be subsequent to the
event if there was not time for the exciting influence to lose its sway.
The true test is not when the exclamation was made but whether, under
all the circumstances, the declarant was still speaking under the stress of
nervous excitement and shock caused by the event.
24. ____: ____. Facts relevant to whether a statement is an excited utterance
include the declarant’s manifestation of stress, the declarant’s physical
condition, and whether the declarant spoke in response to questioning.
25. Courts: Expert Witnesses. Under the Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d
862 (2001), framework, the trial court acts as a gatekeeper to ensure the
evidentiary relevance and reliability of an expert’s opinion.
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STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
26. Trial: Expert Witnesses: Intent. The purpose of the gatekeeping
function is to ensure that the courtroom door remains closed to “junk
science” that might unduly influence the jury, while admitting reliable
expert testimony that will assist the trier of fact.
27. Trial: Expert Witnesses. Before admitting expert opinion testimony,
the trial court must (1) determine whether the expert’s knowledge, skill,
experience, training, and education qualify the witness as an expert;
(2) if an expert’s opinion involves scientific or specialized knowledge,
determine whether the reasoning or methodology underlying the tes-
timony is valid; (3) determine whether that reasoning or methodology
can be properly applied to the facts in issue; and (4) determine whether
the expert evidence and the opinions related thereto are more probative
than prejudicial.
28. ____: ____. A trial court can consider several nonexclusive factors in
determining the reliability of an expert’s opinion: (1) whether a theory
or technique can be (and has been) tested; (2) whether it has been
subjected to peer review and publication; (3) whether, in respect to a
particular technique, there is a high known or potential rate of error; (4)
whether there are standards controlling the technique’s operation; and
(5) whether the theory or technique enjoys general acceptance within a
relevant scientific community.
29. ____: ____. A trial court, when faced with an objection under Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb.
215, 631 N.W.2d 862 (2001), must adequately demonstrate by specific
findings on the record that it has performed its duty as gatekeeper.
30. Trial: Expert Witnesses: Records: Appeal and Error. After an objec-
tion under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland
Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), has been made, the losing
party is entitled to know that the trial court has engaged in the heavy
cognitive burden of determining whether the challenged testimony was
relevant and reliable, as well as a record that allows for meaningful
appellate review.
31. Trial: Expert Witnesses: Appeal and Error. Without specific findings
or discussion on the record, it is impossible to determine whether the
trial court carefully and meticulously reviewed the proffered scientific
evidence or simply made an off-the-cuff decision to admit expert testi-
mony. The trial court must explain its choices so that the appellate court
has an adequate basis to determine whether the analytical path taken by
the trial court was within the range of reasonable methods for distin-
guishing reliable expert testimony from false expertise.
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STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
32. Miranda Rights. The safeguards provided by Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come into play when-
ever a person in custody is subjected to either express questioning or its
functional equivalent.
33. Constitutional Law: Miranda Rights. Miranda warnings are required
only where there has been such a restriction on one’s freedom as to ren-
der one “in custody.”
34. Arrests: Words and Phrases. Being in custody does not require an
arrest, but refers to situations where a reasonable person in the defend­
ant’s situation would not have felt free to leave and, thus, would feel the
restraint on freedom of movement of the degree associated with a formal
arrest.
35. Miranda Rights: Evidence. Statements made in a conversation initiated
by the accused or spontaneously volunteered by the accused are not the
result of interrogation and are admissible.
36. ____: ____. Any statement given freely and voluntarily without compel-
ling influences is admissible in evidence.
37. Criminal Law: Evidence: New Trial: Appeal and Error. Upon find-
ing reversible error in a criminal trial, an appellate court must determine
whether the total evidence admitted by the district court, erroneously or
not, was sufficient to sustain a guilty verdict.
38. Evidence: New Trial: Double Jeopardy: Appeal and Error. If evi-
dence is not sufficient to sustain a verdict after an appellate court finds
reversible error, then double jeopardy forbids a remand for a new trial.
39. Appeal and Error. An appellate court may, at its discretion, discuss
issues unnecessary to the disposition of an appeal where those issues are
likely to recur during further proceedings.
Appeal from the District Court for Custer County: Karin L.
Noakes, Judge. Reversed and remanded for a new trial.
Brandon J. Dugan for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Moore, Chief Judge, and Riedmann and Welch, Judges.
Moore, Chief Judge.
I. INTRODUCTION
Robert E. Edwards, Sr., appeals from his conviction and
sentence in the district court for Custer County for one count
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STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
of first degree sexual assault of a child. The court sentenced
him to 25 to 30 years’ imprisonment. On appeal, Edwards
assigns error to various evidentiary rulings by the court and
its denial of his motion to suppress, challenges the suffi-
ciency of the evidence to convict him, and asserts that the
court imposed an excessive sentence. We find that the dis-
trict court erred in fulfilling its gatekeeping function required
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862
(2001) (Daubert/Schafersman), with respect to the admission
of evidence regarding grooming in child sexual assault cases.
Therefore, we reverse the conviction and remand the cause for
a new trial.
II. BACKGROUND
1. Incident and Charge
On June 24, 2017, Deputy Sheriff Rachel Davis met with
J.E.’s parents regarding an alleged sexual assault of J.E. by
her grandfather, Edwards, which took place on June 19. At
the time of the alleged assault, J.E. was 4 years old and
Edwards was 70 years old. After meeting with J.E.’s parents,
Davis scheduled a forensic interview of J.E. for June 27 at
the Family Advocacy Network (FAN) in Kearney, Nebraska.
During that interview, J.E. said that while she was at the local
public swimming pool with Edwards, he put his fingers in her
“pee-pee,” which she identified as her vaginal area, and that it
“very, very hurt.” The accompanying medical examination at
the FAN revealed internal vaginal injuries consistent with digi-
tal penetration. On June 29, when Davis interviewed Edwards
at his home, he denied doing anything to J.E. Edwards was
subsequently arrested.
On September 19, 2017, the State filed an information in the
district court, charging Edwards with first degree sexual assault
of a child in violation of Neb. Rev. Stat. § 28-319.01 (Reissue
2016), a Class IB felony. The State alleged that on or about
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STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
June 19, Edwards, a person 19 years of age or older, subjected
J.E., a person less than 12 years of age, to sexual penetration.
2. Motion in Limine
On September 17, 2018, the State filed a motion pursuant
to Neb. Rev. Stat. § 27-414 (Reissue 2016) to introduce evi-
dence through the testimony of J.E.’s sister of Edwards’ prior
bad acts.
On September 19, 2018, Edwards filed a motion in limine,
seeking to exclude certain evidence at trial. As relevant to the
present appeal, Edwards sought to exclude (1) evidence of
“any of the prior bad acts alleged in the State’s Motion for
414 evidence,” along with any other bad acts evidence pursu-
ant to Neb. Rev. Stat. § 27-404 (Reissue 2016) or § 27-414;
(2) hearsay testimony of any and all witnesses as to J.E.’s
statements; (3) any testimony by Dr. Susan Greenwald, the
doctor who conducted the medical examination of J.E. at the
FAN, or any other witness as to the “‘grooming’ technique as
disclosed in [Greenwald’s] deposition” for reasons including
that it did not meet the standard of Daubert/Schafersman; and
(4) “any expert testimony of any witness or reports thereof not
­specifically authorized by the Court prior to being offered”
(specifically testimony of forensic interviewer Kori Peters as
to any “‘grooming’ technique”).
At the hearings on Edwards’ motion in limine and the State’s
motion regarding prior bad acts evidence, the district court
heard testimony from witnesses, including J.E.’s mother and
sister. The court also received evidence concerning statements
made by J.E. and Greenwald’s anticipated testimony, including
the depositions of J.E., her mother, Greenwald, and Peters and
certain statements in the deposition of J.E.’s sister.
With respect to the alleged prior bad acts by Edwards, J.E.’s
mother testified regarding two prior incidents, one involv-
ing Edwards and J.E.’s cousin and one involving Edwards
and herself. The first incident described by J.E.’s mother
occurred about 6 or 7 years before the hearing. According to
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STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
the mother, Edwards was watching her “playing around” with
J.E.’s cousin, who was 17 or 18 years old. After the mother and
cousin went into another room and sat on the couch, Edwards
followed, said something, and grabbed the cousin’s breast. The
mother stated that she said to Edwards, “what the hell are you
doing,” but that he simply turned around and left the room.
She acknowledged that while she and the cousin were “play-
ing around,” the cousin had “grabbed [the mother’s] breast.”
The mother indicated that the second incident occurred around
2000 or 2001. She stated that she was on her hands and knees
cleaning up a spill on the floor when Edwards came up from
behind her, held her down on the floor, and would not let
her get up.
J.E.’s sister was 23 years old at the time of her testi-
mony about prior incidents involving Edwards, occurring when
she lived in Maryland. The sister has various “developmental
delays,” including being “[b]orderline handicapped,” and she
has “hearing impairment, memory loss, and seizures.” The
sister testified that when she was about 7 years old, Edwards
would sit in a rocking chair, put her on his lap, and rock her
“back and forth.” While doing this, he would “put his hand up
[her] shirt and he would grab for the breast area, and then after
that he would put his hand over down to [her] private area.”
According to the sister, when she was about that same age, she
would be with Edwards in his semi-truck and he would “try to
unzip [her] pants.” According to the sister, these incidents hap-
pened on more than one occasion. The sister testified that dur-
ing the same period, Edwards regularly and publicly referred
to her as his “girlfriend” or “wife”; she indicated that Edwards
has referred to J.E. by those terms as well.
According to Greenwald’s deposition testimony, she had
previously testified as an expert witness in various civil,
criminal, and juvenile court proceedings. According to her
curriculum vitae, she has been a child forensic examiner since
1986 and an independent contractor for the FAN since 2001.
She also had a general pediatric practice from 1986 to 2015.
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STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
Greenwald has had formal training on the issue of grooming
and has had experience conducting “hundreds” of examina-
tions of molested children in seeing “how their molesters have
gained access” to them. Greenwald has not published any
works of her own or peer-reviewed articles on the concept of
grooming, because she is a clinician and not a researcher.
Greenwald testified about her examination of J.E., which
she described as being “abnormal” both due to the redness and
swelling in J.E.’s vaginal area and because J.E. was “basically
too cooperative.” Greenwald testified that 4-year-old children
do not normally “just lay down and spread their legs for you,”
which J.E. did. Greenwald indicated that J.E. “held perfectly
still” for the examination, which was also unusual, and that
she was “very cooperative, very docile.” Greenwald testified
that this was significant because in her experience children
who have been “coached or groomed” by a sexual molester are
much more docile during an examination than children who
have not.
Greenwald provided further testimony regarding grooming,
which she described as a “clinical term,” involving gaining
a child’s trust through things such as buying them gifts and
doing fun activities like playing games with them. She said
grooming will often include pornography. She testified that
grooming might start by having the child sit on the person’s
lap “and then just gradually working up to sexual activity.”
Greenwald indicated that a perpetrator could use such normal
activities as a way of “desensitizing the child” to progressively
more sexual kinds of touching. She testified that while there
are many ways to groom a child, they all involve gaining the
child’s trust and “basically teaching them to be sexual crea-
tures.” According to Greenwald, grooming is “very common”
in child abuse cases and is usually done by someone the child
trusts, such as a family member or someone close to the fam-
ily. Greenwald has seen perpetrators who engage in grooming
“switch victims.”
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STATE v. EDWARDS
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Greenwald testified that in her experience, she felt that J.E.
was exhibiting behaviors of someone who had been groomed.
She was not asked and did not provide any testimony as
to whether any particular actions by Edwards constituted
grooming.
In Peters’ deposition, she testified about her forensic inter-
view of J.E. at the FAN on June 27, 2017. She did not testify
regarding grooming.
The district court subsequently entered orders ruling on the
State’s motion to admit evidence of prior bad acts and Edwards’
motion in limine. With respect to the evidence of the alleged
prior incidents involving J.E.’s cousin and sister, the court
found clear and convincing evidence that Edwards committed
sexual offenses against them and determined that the evidence
was admissible under § 27-414. As to J.E.’s statements, the
court assumed Edwards was objecting to statements made by
J.E. to her parents regarding the alleged sexual assault. The
court denied Edwards’ motion with respect to those statements,
finding that the circumstances surrounding them satisfied the
excited utterance exception to the hearsay rule. Finally, the
court determined that the “combination of Dr. Greenwald’s
education, experience, and training in the area of child sexual
abuse was sufficient to admit her testimony regarding groom-
ing patterns and behavior.” The court stated that such testi-
mony “is useful for the jury to evaluate the credibility of the
witness and is evidence of motive and intent.” The court denied
Edwards’ motion with respect to Greenwald’s anticipated tes-
timony about “grooming.” In contrast, the court determined
that while Peters’ experience and training “may qualify her
as an expert regarding grooming patterns and behaviors of
child molesters,” the court had not been presented with any
testimony in her deposition regarding “grooming behavior.”
Accordingly, the court granted Edwards’ motion with respect
to Peters and ordered that the State was not allowed to argue or
offer evidence on any opinion Peters may have on “grooming
patterns and techniques.”
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STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
3. Motion to Suppress
On September 19, 2018, Edwards filed a motion to suppress
his statements, alleging that they were taken in violation of his
constitutional rights.
At the hearing on Edwards’ motion to suppress, the dis-
trict court heard testimony from Davis about her contact with
Edwards on June 24, 2017, first at his residence and later the
same day at the residence of J.E.’s parents, and received into
evidence a body camera recording of “what happened that
day.” Davis did not advise Edwards of his Miranda rights or
place him under arrest during either contact. In ruling on the
suppression motion, the court found that the statements made
by Edwards in the presence of Davis were not made during
a custodial interrogation. Accordingly, the court denied his
motion to suppress.
4. Trial
A jury trial was held on February 11 through 13, 2019. We
have summarized the relevant evidence as follows:
On Monday, June 19, 2017, Edwards picked J.E. up from
her parents’ house to take her to the swimming pool around
12 p.m., arriving at the pool shortly before 1 p.m., and he
brought her home a little after 4 p.m. The evidence reflects
that Edwards watched J.E. from a poolside chair, and several
witnesses who observed Edwards at the pool that day testified
that he did not get in the water with J.E. There were four life-
guards on duty at the pool that afternoon, who rotated positions
every 15 minutes between three outside observation chairs and
the pool office, and there was a 15-minute break from swim-
ming every hour. The only people allowed to swim in the main
pool during the break periods were those over 18 years old;
individuals 6 years and younger could be in the “baby pool”
area during breaks if they were supervised. The lifeguards
each testified to seeing Edwards and J.E. at the pool that day.
Three of the lifeguards testified that they never observed any
concerning interactions between Edwards and J.E. that day,
although their testimony shows that it is not possible to see
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the baby pool area from one of the three outside observation
chairs or from inside the pool office. The fourth lifeguard testi-
fied that Edwards and J.E. were never out of her field of vision
that day, clarifying that she had “the main swimming area” in
her full view the entire time she was at the pool. She thought
she had walked around “during break,” but she did not recall
whether Edwards and J.E. were in the baby pool area. She was
not asked if she observed any concerning interactions between
them, and she acknowledged that from one of the lifeguard
observation chairs, a person can see who enters and exits the
baby pool area but not anything that happens in the baby pool
area itself.
J.E.’s sister walked by the swimming pool that afternoon
on her way home from work. She testified that she saw J.E.
“run out of [the] women’s bathroom just bawling” and then
saw Edwards “just cussing away.” The sister did not “go over
there,” but she and Edwards waved at one another.
In the hours after Edwards brought J.E. home, her mother
gave her a bath and prepared supper, and after supper, J.E.’s
mother got J.E. ready for bed. J.E.’s bedtime routine included
speaking to her father, an over-the-road truckdriver, by tele-
phone. That evening, while the mother was calling the father,
J.E. started pulling down her underwear and told her mother
that her “pee-pee” hurt, and when the mother asked why,
J.E. said that it was because “papa put his fingers in there.”
“[P]apa” was J.E.’s name for Edwards. J.E. repeated her allega-
tion when speaking to her father on the telephone.
J.E.’s parents discussed what to do about her disclosure, and
because the mother suffered from severe anxiety, they decided
to wait until the father returned to address the situation. J.E.’s
father returned home late Friday night of that week, and J.E.’s
parents contacted law enforcement the following day. This
contact resulted in the forensic interview and medical exami-
nation of J.E., as well as the police contact with Edwards dis-
cussed above.
Peters testified regarding her forensic interview of J.E.
at the FAN on June 27, 2017. First, Peters explained how
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forensic interviews are conducted and her role in the interview
process. Next, Peters testified about J.E.’s responses during
the forensic interview, and a video recording of the interview
was received into evidence and played for the jury. During the
interview, J.E. told Peters that “papa” put his fingers in her
“pee-pee,” which J.E. identified as her vaginal area, and that it
“very, very hurt.” J.E. also reported that Edwards rubbed her
“boobies” and her “butt.” J.E. reported that Edwards did this in
the water at the pool and that no one else saw what happened.
J.E.’s own trial testimony differed from the forensic interview;
at trial, she testified that Edwards touched her under her swim-
suit on the outside of her private part and that it happened
while she was out of the water.
Greenwald testified about her physical examination of J.E.
and about the concept of grooming. Her testimony at trial
about her qualifications and about the concept of grooming was
similar to her deposition testimony admitted at the motion in
limine hearing. During Greenwald’s examination of J.E., which
occurred on the same day that J.E. was interviewed by Peters,
Greenwald observed internal injuries to J.E.’s vaginal area.
Greenwald testified that the injuries she observed were con-
sistent with digital penetration. She was asked about “straddle
injuries” from something like falling on a bike, and she testi-
fied that with such an accident, “if there is any damage to the
inner structures, you’d see a lot of damage to the outer struc-
tures first.” Greenwald did not observe any such outer injuries
during her examination of J.E. During the examination, when
Greenwald told J.E. that she was going to take pictures of J.E.’s
“pee-pee,” J.E. “just jumped up on the table and spread her
legs and laid down very calmly and was ready.” Greenwald tes-
tified that that behavior “really caught [her] attention because
it’s so unusual.” According to Greenwald, “that kind of behav-
ior is the result of being trained or groomed.” Greenwald then
testified further about “grooming,” which she described dur-
ing this portion of her testimony as “a very commonly seen
method that sexual offenders will use to gain the cooperation
of children.”
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Davis testified regarding her investigation, including her
interview with Edwards at his residence and her subsequent
interaction with Edwards at the residence of J.E.’s parents.
Video recordings from Davis’ body camera showing the inter-
view of Edwards and a portion of the interaction at the par-
ents’ residence were received into evidence and played for the
jury. During both encounters, Edwards denied touching J.E.
inappropriately. During the interview at his residence, he also
volunteered information about the incident with J.E.’s sister
and denied any wrongdoing in that regard. Davis testified that
Edwards was not under arrest during the interview at his resi-
dence, and a review of the video shows that he subsequently
left the parents’ residence without being placed under arrest.
Both J.E.’s mother and J.E.’s sister testified regarding some of
the prior incidents with Edwards discussed above. Specifically,
J.E.’s mother testified regarding the incident involving J.E.’s
cousin and Edwards, and J.E.’s sister testified regarding the
various incidents involving her and Edwards. The sister also
testified about Edwards calling both her and J.E. his girlfriend
and his wife. The incident between Edwards and J.E.’s mother
was not referenced at trial.
Finally, Edwards testified in his own behalf. Edwards testi-
fied that he would spend time with J.E. and that he took her
to places like the pool and park. He testified that he “spoiled”
J.E., which he indicated included buying her food treats or
toys if she wanted them. Edwards denied doing anything inap-
propriate to J.E. He acknowledged that on June 19, 2017, he
took J.E. to the swimming pool and she went into “the kiddie
pool” once, but he denied having gotten into the water him-
self while they were at the pool. He testified that there was
a water fountain in the park but not in the “pool area,” and
he denied having taken J.E. to the water fountain. Later, he
testified that he did not remember a water fountain in the pool
area. He stated that he did take J.E. to the bathroom while
they were at the pool, but he denied going into the bathroom
with her. Edwards disputed the prior incidents testified to by
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J.E.’s mother and her sister, which involved Edwards and the
sister and Edwards and the cousin.
5. Verdict and Sentence
The jury found Edwards guilty of first degree sexual assault
of a child, and the district court accepted the jury’s verdict.
The court subsequently sentenced Edwards to 25 to 30 years’
imprisonment.
III. ASSIGNMENTS OF ERROR
Edwards asserts that (1) the district court erred in denying
his motion in limine, in granting the State’s motion to offer
evidence of prior bad acts, and in allowing the testimony of
prior bad acts, hearsay statements of J.E., and the testimony
of Greenwald; (2) the court erred in denying his motion to
suppress; (3) he was prejudiced by the introduction of imper-
missible evidence; and (4) the court abused its discretion by
imposing an excessive sentence.
IV. STANDARD OF REVIEW
[1-3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such
rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility. State v. Lee,
304 Neb. 252, 934 N.W.2d 145 (2019). 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. Id. An
abuse of discretion occurs when a trial court’s decision is based
upon reasons that are untenable or unreasonable or if its action
is clearly against justice or conscience, reason, and evidence.
State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).
[4] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination whether the court admitted
evidence over a hearsay objection or excluded evidence on
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hearsay grounds. State v. Dady, 304 Neb. 649, 936 N.W.2d
486 (2019).
[5] In reviewing a motion to suppress a statement based on
its claimed involuntariness, including claims that law enforce-
ment procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies
a two-part standard of review. State v. Montoya, 304 Neb. 96,
933 N.W.2d 558 (2019). Regarding historical facts, an appel-
late court reviews the trial court’s findings for clear error. Id.
Whether those facts meet constitutional standards, however, is
a question of law, which an appellate court reviews indepen-
dently of the trial court’s determination. Id.
[6,7] In reviewing a criminal conviction for a sufficiency
of the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same: An
appellate court does not resolve conflicts in the evidence, pass
on the credibility of the witnesses, or reweigh the evidence;
such matters are for the finder of fact. State v. Dady, supra.
When examining a sufficiency of the evidence claim, the rel-
evant 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.
[8] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. State v. Iddings, supra.
V. ANALYSIS
1. Motion in Limine
Edwards asserts that the district court erred in denying
his motion in limine and granting the State’s motion to offer
evidence of prior bad acts. He argues that the court erred in
admitting into evidence testimony about certain prior incidents
involving Edwards, J.E.’s hearsay statements to various indi-
viduals, and Greenwald’s testimony about “grooming.”
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(a) Evidence of Prior Bad Acts
Edwards argues that evidence of prior bad acts against the
sister, the cousin, and the mother should have been excluded
from evidence at trial, pursuant to § 27-414 (governing admis-
sion of evidence of defendant’s commission of other offenses
of sexual assault in criminal cases where defendant is accused
of sexual assault). In its order ruling on the portion of Edwards’
motion in limine that sought to exclude § 27-414 evidence and
the State’s motion seeking to introduce such evidence, the dis-
trict court found clear and convincing evidence that Edwards
had committed sexual offenses against J.E.’s cousin and sister.
The court stated that it had considered the probability that
the offenses had occurred and the similarity of the acts to the
crime charged to determine that the probative value of the
evidence substantially outweighed the dangers of unfair preju-
dice. Accordingly, the court found the evidence of prior bad
acts of Edwards against the cousin and the sister was admis-
sible at trial.
(i) Incidents With J.E.’s Sister
There was evidence admitted at trial about the incidents
between Edwards and J.E.’s sister. When asked if Edwards
ever did “anything” to her when she was younger, the sister
responded affirmatively and indicated that this happened in
Maryland. When she was asked how old she was at the time,
Edwards objected on the bases of relevance, speculation, and
hearsay; he also asked for “a running objection.” The district
court overruled these objections. The sister proceeded to tes-
tify that when she was 7 or 8 years old, Edwards would put
her on his lap in the rocking chair, rock her back and forth,
and then reach under her shirt toward her breast area. She clar-
ified that by saying “reach toward [her] breast area underneath
[her] shirt,” she meant “like putting your hands and pulling the
shirt up and reaching toward the breast area of the boobs and
grabbing it.” She stated that Edwards did this to her on more
than one occasion. She also indicated that when Edwards did
this, he “said that he didn’t think that girls at [her] age would
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have boobs.” The sister testified further that Edwards also
touched her “[i]n the semi-truck,” again in Maryland, and that
he would try to unzip her pants. Finally, the sister testified
that when she was younger, Edwards would call her “his girl-
friend” and “his wife,” say that “[she] had a nice body,” and
tell her that he was going to marry her and that no one else
was allowed to marry her. She testified that when Edwards
was doing these things to her, it felt “[v]ery uncomfortable and
completely wrong.”
J.E.’s mother was also questioned about the incidents involv-
ing Edwards and the sister. She responded affirmatively when
asked if she remembered an incident with Edwards and the
sister in Maryland. When asked to tell “a little bit about that,”
she replied, “She was like seven or eight years and she was
starting to get breasts and everything . . . .” At that point,
Edwards’ attorney objected on the bases of relevancy and
“improper impeachment” and asked “that that part be stricken.”
Following an off-the-record sidebar, the district court overruled
Edwards’ objections. The mother was asked about the incident
again, and the court sustained “leading” and “hearsay” objec-
tions to various questions. The mother then testified that she
never observed anything that happened. She also recalled that
Edwards referred to the sister as “his girlfriend” and that some-
times he would say “hot stuff.”
[9,10] The State asserts that Edwards’ arguments about the
incidents involving the sister are not properly before us because
Edwards “did not object on § 27-414 grounds or otherwise
renew his motion in limine.” Brief for appellee at 16. Because
overruling a motion in limine is not a final ruling on admis-
sibility of evidence and, therefore, does not present a question
for appellate review, a question concerning admissibility of
evidence which is the subject of a motion in limine is raised
and preserved for appellate review by an appropriate objec-
tion to the evidence during trial. State v. Wood, 296 Neb. 738,
895 N.W.2d 701 (2017). In his reply brief, Edwards asserts
that to the extent he did not mention § 27-414, the nature of
his objection “was apparent by the context.” Reply brief for
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appellant at 9. We disagree. In his objections to the sister’s
testimony about the incidents with her and Edwards, he neither
referenced his motion in limine nor § 27-414. He objected to
the sister’s testimony on the grounds of relevance, speculation,
and hearsay. He does not argue on appeal that his objections
on those grounds were improperly overruled. Edwards failed
to preserve for appellate review his argument that the district
court erred in failing to grant his motion in limine with respect
to the sister’s testimony about these incidents, and on appeal,
a defendant may not assert a different ground for his or her
objection than was offered at trial. State v. Swindle, 300 Neb.
734, 915 N.W.2d 795 (2018). As to the mother’s testimony, she
did not actually testify about the rocking and touching inci-
dents, and Edwards does not otherwise argue that the mother’s
testimony referenced above was improperly admitted.
(ii) Incident With Victim’s Cousin
As noted above, Edwards objected at trial when the sister
was asked about incidents involving Edwards and herself,
and he sought a continuing objection with respect to that tes-
timony. However, J.E.’s sister was also asked if she remem-
bered an incident between Edwards and the cousin, and she
testified, without objection, to an occasion when J.E.’s mother
and cousin “were horse playing around” and “throwing a pil-
low back and forth,” and Edwards “got up from the chair
and went toward [the] cousin . . . and tried to kiss her and
grabbed her boob.” J.E.’s sister, who was 23 years old at the
time of her testimony, stated that this occurred when she was
a teenager.
During the mother’s testimony, when she was asked about
what she observed to have happened between Edwards and the
cousin, Edwards objected on the bases of hearsay, improper
impeachment, and relevance. The court overruled these objec-
tions. The mother then testified, without further objection
by Edwards, that she and the cousin were “playing around”;
that the cousin “grabbed [the mother’s] boob”; and that after
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they ran into another room, Edwards followed them, said
something, and “grabbed [the cousin’s] boob.” The mother was
questioned further about Edwards’ proximity to them during
the initial horseplay and lack of involvement in that activity,
as well as his proximity to them after they went into another
room. Then she again testified, without objection, that Edwards
came into the room where they were sitting, said something,
and “grabbed [the cousin’s] boob.” The mother testified that
she said to Edwards, “[w]hat the hell are you doing,” but that
he laughed and walked out without further response.
[11] The State again asserts that Edwards failed to preserve
his arguments for appellate review because he did not object
on the basis of § 27-414 or otherwise renew his motion in
limine. Regardless of whether Edwards’ objections at trial to
the mother’s testimony about the incident involving the cousin
were sufficient to preserve the issues raised in his motion in
limine, he has waived any prejudicial error. As noted, J.E.’s
sister testified at trial without objection to the incident between
Edwards and the cousin. Failure to make a timely objection
waives the right to assert prejudicial error on appeal. State v.
Swindle, supra. And, while Edwards objected at the start of
the mother’s testimony about this incident, he did not ask for a
continuing objection (something he did at other points during
trial), and the mother subsequently stated twice, without objec-
tion, that Edwards “grabbed [the cousin’s] boob.”
(iii) Incident With Victim’s Mother
[12] While evidence about an incident between Edwards
and J.E.’s mother was introduced at the hearing on Edwards’
motion in limine, such evidence was not introduced at trial.
Accordingly, we need not further address Edwards’ arguments
about this particular incident. An appellate court is not obli-
gated to engage in analysis that is not necessary to adjudicate
the case and controversy before it. State v. Lillard, 27 Neb.
App. 824, 937 N.W.2d 1 (2019).
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(b) Hearsay Statements of J.E.
[13] In presenting arguments about this portion of his assign-
ment of error, Edwards reviews various hearsay statements in
the depositions of J.E.’s mother, Peters, and Greenwald, but
those depositions were not offered as evidence at trial. He does
cite to certain portions of trial testimony, and we have limited
our review of his hearsay arguments to those areas of the trial
record cited in Edwards’ brief, as it is not the function of an
appellate court to scour the record looking for unidentified evi-
dentiary errors. Smith v. Colorado Organ Recovery Sys., 269
Neb. 578, 694 N.W.2d 610 (2005). To the extent that Edwards
objected to the cited testimony on the grounds of hearsay,
he has preserved his arguments with respect to the motion
in limine.
(i) Testimony of Greenwald
Edwards objected on the basis of hearsay to Greenwald’s
testimony that J.E. was brought to the FAN because of J.E.’s
statement to her father that “her pee-pee hurt.” After the
State argued that the testimony should be allowed because
it was “part of medical diagnosis,” the district court over-
ruled Edwards’ objection. Greenwald again testified that J.E.
was brought to the FAN because she said “her pee-pee hurt.”
Greenwald explained further that the interviewer (Peters) told
Greenwald that “pee-pee” was J.E.’s word for vagina and
that J.E. had told the interviewer that “her pee-pee” had been
touched and that it “hurt badly.” Greenwald concluded her
response by stating that this was “why we did the exam.”
Greenwald testified without objection that she was told “they
were looking for trauma that might have been caused by a
digital penetration.” Edwards objected on bases including hear-
say to the offer of Greenwald’s report of her examination of
J.E., and the district court sustained the objections. During the
State’s redirect examination of Greenwald, she affirmed with-
out objection that she had received information “from the inter-
view” that J.E.’s grandfather “had stuck his fingers in [J.E.’s]
pee-pee,” which was J.E.’s term for her vagina.
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[14] “Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evi-
dence to prove the truth of the matter asserted.” Neb. Rev. Stat
§ 27-801(3) (Reissue 2016). Hearsay is not admissible at trial
except as provided by the Nebraska Evidence Rules. See Neb.
Rev. Stat. § 27-802 (Reissue 2016). “Hearsay included within
hearsay is not excluded under the hearsay rule if each part of
the combined statements conforms with an exception to the
hearsay rule provided in these rules.” Neb. Rev. Stat. § 27-805
(Reissue 2016). When an out-of-court statement relates the
content of another out-of-court statement, there must be an
independent hearsay exception for each statement. State v.
Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
As discussed below, J.E.’s statements to her father are admis-
sible under the excited utterance exception. Thus, the first step
of the double hearsay requirement is met with respect to those
statements. We conclude that it is also met with respect to J.E.’s
statements to Peters, which are admissible under the medical
diagnosis or treatment exception. Additionally, we conclude
that Peters’ statements to Greenwald were admissible under the
medical diagnosis or treatment exception, and thus, the district
court did not err in admitting the portion of Greenwald’s trial
testimony complained of by Edwards in his brief.
[15] Neb. Rev. Stat. § 27-803(3) (Reissue 2016) provides
that the hearsay rule does not exclude “[s]tatements made for
purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensa-
tions, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diag-
nosis or treatment.” Section 27-803(3) is based on the notion
that a person seeking medical attention will give a truthful
account of the history and current status of his or her condition
in order to ensure proper treatment. State v. Jedlicka, 297 Neb.
276, 900 N.W.2d 454 (2017).
[16-18] Statements made by a child victim of sexual abuse
to a forensic interviewer in the chain of medical care may be
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admissible under § 27-803(3) even though the interview has
the partial purpose of assisting law enforcement’s investiga-
tion of the crimes. State v. Jedlicka, supra. The fundamental
inquiry to determine whether statements, made by a declarant
who knew law enforcement was listening, had a medical pur-
pose is if the challenged statement has some value in diagnosis
or treatment, because the patient would still have the requisite
motive for providing the type of sincere and reliable infor-
mation that is important to that diagnosis and treatment. Id.
However, statements having a dual medical and investigatory
purpose are admissible under § 27-803(3) only if the proponent
of the statements demonstrates that (1) the declarant’s purpose
in making the statements was to assist in the provision of
medical diagnosis or treatment and (2) the statements were of
a nature reasonably pertinent to medical diagnosis or treatment
by a medical professional. State v. Jedlicka, supra.
[19,20] Under § 27-803(3), the fundamental inquiry when
considering a declarant’s intent is whether the statement was
made in legitimate and reasonable contemplation of medi-
cal diagnosis or treatment. State v. Jedlicka, supra. Under
§ 27-803(3), the appropriate state of mind of the declarant may
be reasonably inferred from the circumstances; such a determi-
nation is necessarily fact specific. State v. Jedlicka, supra.
With respect to the scope of this hearsay exception, the
Nebraska Supreme Court has stated:
Although the heart of this exception lies in statements
made by a patient to a treating physician, the exception
casts its net wider than the patient-physician relation-
ship. Under the federal and Nebraska rules of evidence,
statements admissible under the medical diagnosis and
treatment exception are not restricted to statements made
by the patient and the statements need not be made to a
physician. . . . As a general rule, the exception applies
to persons seeking medical assistance from persons who
are expected to provide some form of health care. . . .
Thus, “[t]he declarant need not be the patient—need not
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be the person who is experiencing the symptoms to be
diagnosed or treated. In other words, the statement need
not refer to the declarant’s own symptoms.”
In re Interest of B.R. et al., 270 Neb. 685, 691, 708 N.W.2d
586, 591 (2005) (citations omitted) (statements by child’s
foster mother to therapist, reporting unusual sexual behavior
by child and her suspicions of sexual abuse, were admissible
under § 27-803(3)). See, also, State v. Huntington, 216 Wis. 2d
671, 575 N.W.2d 268 (1998) (statements made to nurse practi-
tioner by victim’s mother regarding allegations that defendant
sexually abused victim were admissible, over double hearsay
objection, under medical treatment exception to hearsay rule).
In this case, Peters testified that her forensic interviews are
used in conjunction with Greenwald’s medical examinations of
potential child sexual abuse victims. Peters’ interview with J.E.
was not scheduled until several days after Peters was initially
contacted by law enforcement so that the interview could be
conducted on a date when Greenwald was also available to
allow for “a fuller picture of what’s going on.” Greenwald’s
testimony shows that her medical examination of J.E.’s vaginal
area was due to a concern of sexual trauma, and she indicated
that it is important to perform a complete examination to
determine whether a medical diagnosis could be found. Peters’
interview elicited information that was reasonably pertinent
to Greenwald’s examination of J.E. and the need for any
further diagnosis and treatment of her. Peters subsequently
relayed this pertinent information to Greenwald in the chain of
medical care. Based on our review of the record, the district
court did not err in finding that J.E.’s statements, as relayed
to Greenwald by Peters and testified to by Greenwald, were
admissible under the medical treatment exception to the rule
against hearsay.
(ii) Testimony of J.E.’s Parents
The district court overruled Edwards’ hearsay objection
when J.E.’s mother testified at trial that on the evening of
June 19, 2017, J.E. started pulling down her underwear and
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said “my pee-pee hurts.” After the court overruled the objec-
tion, the mother testified that she asked J.E. “why,” and J.E.
responded that “papa put his fingers in there.” The mother testi-
fied further, without objection, that J.E. told her because “papa
put his fingers in there” and that J.E. told her father, who was
on the telephone with them at the time, “the same thing that
she told me.” Edwards also references his objections to the
testimony of J.E.’s father. The court overruled Edwards’ hear-
say objection when J.E.’s father started to testify at trial about
what J.E. told him on the telephone on the evening in ques-
tion. The father then testified that she told him her “pee-pee”
hurt because Edwards “had put his fingers in there” and that
Edwards had said to her “ha ha I got my fingers in there.”
[21-24] In ruling on Edwards’ motion in limine, the district
determined that J.E.’s statements to her parents were admis-
sible as excited utterances. Section 27-803(1) provides that
“[a] statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused
by the event or condition” is not excluded by the hearsay rule.
For a statement to qualify as an excited utterance, the follow-
ing criteria must be established: (1) There must have been a
startling event, (2) the statement must relate to the event, and
(3) the statement must have been made by the declarant under
the stress of the event. State v. Nolt, 298 Neb. 910, 906 N.W.2d
309 (2018). The key requirement to the excited utterance
exception is spontaneity, which requires a showing that the
statements were made without time for conscious reflection.
Id. An excited utterance does not have to be contemporaneous
with the exciting event. Id. It may be subsequent to the event
if there was not time for the exciting influence to lose its sway.
Id. The true test is not when the exclamation was made but
whether, under all the circumstances, the declarant was still
speaking under the stress of nervous excitement and shock
caused by the event. Id. Facts relevant to whether a statement
is an excited utterance include the declarant’s manifestation
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of stress, the declarant’s physical condition, and whether the
declarant spoke in response to questioning. Id.
Here, although J.E. explained her distress in response to
questions from her parents, she initially, without inquiry or
prompting, pulled down her underwear and told her mother
that her “pee-pee” hurt. Her initial statement was made the
same evening after the digital penetration of her vagina by
Edwards that afternoon at the swimming pool. Her statement
and physical actions reflect the stress of her grandfather hav-
ing touched her in a painful and unexpected way. The district
court did not err in admitting the parents’ testimony about
J.E.’s statements.
(c) Testimony of Greenwald
About Grooming
In his motion in limine, Edwards sought to exclude testimony
by Greenwald about “‘grooming’” technique, arguing that it
did not meet the standard of Daubert/Schafersman. The district
court, while not explicitly addressing Daubert/Schafersman,
ruled that Greenwald was qualified to testify about grooming
and that her testimony would be useful to the jury.
At trial, Greenwald was allowed to testify over Edwards’
foundational objection that J.E.’s behavior in positioning her-
self on the examination table indicated to Greenwald that “the
child had most likely been trained, or what we call groomed.”
Greenwald then testified further about “grooming” in general,
and Edwards objected on the bases of speculation, foundation,
and Daubert/Schafersman to this testimony. The court over-
ruled Edwards’ objections but gave him a continuing objection
to this line of questioning.
[25,26] On appeal, Edwards argues that he was prejudiced
by Greenwald’s testimony about grooming and that it should
have been excluded under Daubert/Schafersman. Under the
Daubert/Schafersman framework, the trial court acts as a
gatekeeper to ensure the evidentiary relevance and reliability
of an expert’s opinion. State v. Simmer, 304 Neb. 369, 935
N.W.2d 167 (2019). The purpose of the gatekeeping function
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is to ensure that the courtroom door remains closed to “junk
science” that might unduly influence the jury, while admitting
reliable expert testimony that will assist the trier of fact. Id.
The parties do not cite to any reported Nebraska cases, nor
have we found any, that specifically address the admissibility
of expert testimony regarding the theory of grooming in child
sexual assault cases under a Daubert/Schafersman inquiry.
However, our statutes and case law regarding the admissibility
of expert opinion testimony are instructive.
[27,28] Neb. Rev. Stat. § 27-702 (Reissue 2016) provides,
“If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue, a witness qualified as an expert by knowl-
edge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.” Before admit-
ting expert opinion testimony, the trial court must (1) deter-
mine whether the expert’s knowledge, skill, experience, train-
ing, and education qualify the witness as an expert; (2) if an
expert’s opinion involves scientific or specialized knowledge,
determine whether the reasoning or methodology underlying
the testimony is valid; (3) determine whether that reasoning or
methodology can be properly applied to the facts in issue; and
(4) determine whether the expert evidence and the opinions
related thereto are more probative than prejudicial. Gonzales v.
Nebraska Pediatric Practice, 26 Neb. Ct. App. 764, 923 N.W.2d
445 (2019). A trial court can consider several nonexclusive
factors in determining the reliability of an expert’s opinion: (1)
whether a theory or technique can be (and has been) tested; (2)
whether it has been subjected to peer review and publication;
(3) whether, in respect to a particular technique, there is a high
known or potential rate of error; (4) whether there are stan-
dards controlling the technique’s operation; and (5) whether the
theory or technique enjoys general acceptance within a relevant
scientific community. State v. Simmer, supra.
[29-31] A trial court, when faced with a Daubert/Schafersman
objection, must adequately demonstrate by specific findings
on the record that it has performed its duty as gatekeeper.
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Gonzales v. Nebraska Pediatric Practice, supra. After such
a Daubert/Schafersman objection has been made, the losing
party is entitled to know that the trial court has engaged in the
heavy cognitive burden of determining whether the challenged
testimony was relevant and reliable, as well as a record that
allows for meaningful appellate review. Gonzales v. Nebraska
Pediatric Practice, supra. Without specific findings or discus-
sion on the record, it is impossible to determine whether the
trial court carefully and meticulously reviewed the proffered
scientific evidence or simply made an off-the-cuff decision
to admit expert testimony. Id. The trial court must explain its
choices so that the appellate court has an adequate basis to
determine whether the analytical path taken by the trial court
was within the range of reasonable methods for distinguishing
reliable expert testimony from false expertise. Id.
In his motion in limine, Edwards asked the district court to
prohibit any testimony by Greenwald (or any other witness) as
to the concept of grooming. Edwards asserted that the theory
did not meet the standard of Daubert/Schafersman for reasons
including that it could not be tested “as it is backward look-
ing,” did not appear to be peer reviewed, did not appear to
have a known rate of error, and was not generally accepted
within the scientific community. He further asserted that the
theory was not relevant and that any evidence referring to it
would be prejudicial. In sum, Edwards was challenging the
validity and reliability of any evidence about the grooming
process, as well as its relevance.
In ruling on that portion of Edwards’ motion in limine, the
district court concluded that Greenwald was qualified as an
expert in the area of child sexual abuse and her testimony
regarding “grooming patterns and behavior” was relevant.
However, the court did not address the validity and reliability
of the concept of grooming as a process whereby perpetrators
acclimate children to sexual activity. We conclude that the
district court failed to fulfill its gatekeeping function under
Daubert/Schafersman.
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We further conclude that the court’s admission of Greenwald’s
testimony regarding grooming, without performing the gate-
keeping function, was prejudicial error. See State v. Henley,
363 Or. 284, 422 P.3d 217 (2018) (admission of forensic inter-
viewer’s testimony about grooming without first determining
its validity and reliability was prejudicial error; appellate court
declined to address scientific validity of such evidence for first
time on appeal).
2. Motion to Suppress
Edwards asserts that the district court erred in denying his
motion to suppress. He argues that statements he made to
Davis when she spoke with him at his residence and then at the
residence of J.E.’s parents should be suppressed because Davis
subjected him to custodial interrogation without advising him
of his Miranda rights.
[32-36] The safeguards provided by Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come
into play whenever a person in custody is subjected to either
express questioning or its functional equivalent. State v. Landis,
281 Neb. 139, 794 N.W.2d 151 (2011). Miranda warnings are
required only where there has been such a restriction on one’s
freedom as to render one “in custody.” State v. Schriner, 303
Neb. 476, 929 N.W.2d 514 (2019). Being in custody does not
require an arrest, but refers to situations where a reasonable
person in the defendant’s situation would not have felt free to
leave and, thus, would feel the restraint on freedom of move-
ment of the degree associated with a formal arrest. Id. But,
statements made in a conversation initiated by the accused or
spontaneously volunteered by the accused are not the result
of interrogation and are admissible. Id. Any statement given
freely and voluntarily without compelling influences is admis-
sible in evidence. See id.
We find that Edwards was not in custody for the purposes
of Miranda and the Fifth Amendment at any point prior to
his formal arrest, which was subsequent to the conversations
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STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
with Davis at issue here. Based on the evidence, including the
video recordings from Davis’ body camera of both encoun-
ters, Edwards freely volunteered various statements during his
interactions with Davis on June 24, 2017, as to his interac-
tions with J.E. and about prior allegations concerning him and
J.E.’s sister. Davis’ initial interview of Edwards occurred at
his residence. He was not restrained during the encounter and
moved freely about the residence to retrieve his cell phone and
cigarettes at various points. The interview was conducted in a
conversational tone, and Davis left without arresting Edwards.
After leaving Edwards’ residence, Davis went to the residence
of J.E.’s parents where Edwards showed up without invitation.
While there, he voluntarily denied “touch[ing]” J.E. Edwards
was asked to leave and eventually did so, again without
being placed under arrest. The video recordings from Davis’
body camera, which were received into evidence, support a
conclusion that Edwards was not in custody at the time of
either encounter.
Because Edwards was not in custody, Miranda did not
apply, and the district court did not err in denying Edwards’
motion to suppress.
3. Double Jeopardy and Remaining
Assignments of Error
[37,38] Having found reversible error in Edwards’ asser-
tions with respect to the grooming issue, we must determine
whether the totality of the evidence admitted by the district
court was sufficient to sustain Edwards’ conviction. Upon
finding reversible error in a criminal trial, an appellate court
must determine whether the total evidence admitted by the
district court, erroneously or not, was sufficient to sustain a
guilty verdict. State v. Draper, 289 Neb. 777, 857 N.W.2d 334
(2015). If evidence is not sufficient to sustain a verdict after
an appellate court finds reversible error, then double jeop-
ardy forbids a remand for a new trial. Id. After reviewing the
record, we find that the evidence presented at trial, including
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STATE v. EDWARDS
Cite as 28 Neb. Ct. App. 893
the erroneously admitted evidence, was sufficient to support
Edwards’ conviction. Accordingly, we conclude that double
jeopardy does not preclude a new trial.
[39] Because we must reverse and remand for a new trial, we
are not required to consider Edwards’ additional assignments of
error. An appellate court is not obligated to engage in an analy-
sis that is not necessary to adjudicate the case and controversy
before it. State v. Goynes, 303 Neb. 129, 927 N.W.2d 346
(2019), cert. denied ___ U.S. ___, 140 S. Ct. 545, 205 L. Ed.
2d 345. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues
are likely to recur during further proceedings. State v. Mann,
302 Neb. 804, 925 N.W.2d 324 (2019). We have addressed
Edwards’ other assertions regarding evidentiary issues and his
motion to suppress above as those issues are likely to recur on
remand. However, we need not reach his assigned error regard-
ing sentencing, as this issue must be evaluated in the context
of a particular trial.
VI. CONCLUSION
We conclude that the district court’s failure to fulfill its
gatekeeping function with regard to the Daubert/Schafersman
challenge to the evidence regarding grooming was prejudicial
error. As a result, we reverse Edwards’ conviction and remand
the cause to the district court for a new trial.
Reversed and remanded for a new trial.